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Archive for February, 2010

The law according to Yoo

[ 0 ] February 28, 2010 |

Some thoughts on what John Yoo will teach his students.

Yoo’s constitutional theories regarding presidential power raise some interesting jurisprudential and moral issues. If we assume Yoo isn’t a moral monster, we have to assume he doesn’t actually favor machine-gunning a village of civilians or crushing the testicles of a child merely because the POTUS thinks such actions will “keep us safe.” Yoo’s position, I’m assuming, is that such things, while morally monstrous, wouldn’t be illegal under certain circumstances.

It’s tempting to dismiss this view as absurd on its face (I happen to think that in this instance it is absurd on its face, because Yoo’s position regarding the extent of presidential powers in wartime is extreme to the point of absurdity), but the only way to avoid the possibility of finding oneself arguing for something similar in some other situation is to claim that “the law” never permits politicians to engage in grossly immoral practices. That seems to me very implausible. To take an obvious example, slavery was a grossly immoral practice in 19th century America, and also perfectly legal until 1863.

The moral dilemma lawyers in the situation Yoo (ex hypothesi) found himself in 2002 face is this: Suppose you believe it’s legal to do something which is very immoral, and you’re asked your professional opinion on whether it would be legal to do this very immoral thing, by people who are asking you precisely because they intend to do it. What do you do?

The two easy escapes from this dilemma are to take the view that nothing that is very immoral can actually be legal, or to take what appears to be Yoo’s position, which is that he was just being asked for his professional opinion, and what more powerful people chose to do with that opinion was their affair. Neither of these escapes seems legitimate to me. The first position is fairly incredible, while the second dodges the question of moral responsibility altogether.

The first escape appeals to what could be called legal utopians, while the second appeals to authoritarian personalities. For other people, the possibility of this sort of ethical dilemma remains very real.

"If We’re Going To Bet, Why Don’t We Make It Interesting?"

[ 0 ] February 28, 2010 |

Thers seems to be under the brave but very mistaken idea that the Americans’ fluke victory over Canada will be replicated. (Despite the Ygleasias curse!) Hence, he will be generously donating $50 to a Canadian charity of my choice (readers who current reside there are welcome to provide suggestions of good ones.) In the vanishingly unlikely event of an American win, I will do likewise to an American charity of his choice.

In all seriousness, this should be a hell of a game. Canada has one major advantage (depth among their forwards) and one advantage of unknown importance (I’ll take Babcock over Wilson behind the bench in a big game for sure), and with Luongo properly in net no real disadvantages on paper. But Switzerland and Slovakia nonetheless gave Canada all it could handle and the American team that’s already beat Canada once is certainly much better than they are, so…let’s hope the game is as great as it should be.

Corner Comedy Classics

[ 0 ] February 28, 2010 |

Andrew McCarthy, ladies and gentlemen!

Today’s Democrats are controlled by the radical Left…

Ok, the second-biggest supporter of capitalism among major liberal democratic political parties controlled by the radical left, funny stuff. But do you have a punchline?

…and it is more important to them to execute the permanent transformation of American society than it is to win the upcoming election cycles.

[rimshot] Try the veal!

The remarkable thing is that I don’t think this is just propaganda…I think he believes this abject nonsense. Sad.

The fact that Hawaii still exists proves global warming is a hoax.

[ 0 ] February 27, 2010 |

When I mentioned to a friend I was writing a post with that title, he responded by betting his mother’s life that someone had already made that claim and set out in search of that idiot. That was five minutes ago but have no fear his mother can breathe easy. Only now I’m not sure what to do with the rest of the post I’d planned to write. I thought it’d be amusing to demonstrate how the deliberately (and defiantly) uninformed worldview of those who think scientific progress is teleological (for example) creates an environment in which any failed hypothesis represents further proof of gross negligence or professional misconduct. But it isn’t amusing: it’s depressing.

Because of these pig-ignorant people, any scientific finding that doesn’t correspond to the dominant scientific paradigm becomes “another nail in the coffin” for that paradigm. That the tsunami that struck Hawaii didn’t manifest as a 300-foot-tall wall of water is, for such luminaries, further proof that scientists simply suck at predicting anything that involves heightened sea-level. They leap from a televisually disappointing tsunami to stock global warming denialism because they believe a single failure undermines an entire enterprise, i.e. they have no understanding of or investment in the scientific method.

Like I said: it’s depressing.

A Partial Victory

[ 0 ] February 26, 2010 |

You may remember the case in which the Texas sentenced a man to death after a trial in which the judge and prosecutor were literally in bed together, and the state’s abominable appellate courts created a series of transparent procedural Catch-22s to insulate the state from its gross violation of due process. Earlier in the week, the Texas courts threw out his death sentence without addressing the central issue:

A Texas court threw out the death sentence on Wednesday of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.

But the decision from the State Court of Criminal Appeals did not mention the affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.


The new opinion, on a separate writ, focused on whether the jurors should have been able to fully consider issues like Mr. Hood’s learning disabilities, and the fact that he had been gravely injured at 3 years old when a truck backed over him, crushing his legs.

Such questions about jury instructions are an area of legal dispute that has bounced from state courts to the United States Supreme Court and back over the past 20 years. Chief Justice John G. Roberts Jr. has called the result “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”

With the equivalent of a textual sigh, Judge Cathy Cochran wrote in the Texas court’s majority opinion that, “We wade once more into the murky waters” of jury instruction; and the majority ruled that Mr. Hood deserved a new hearing on the question of punishment.

Since it only affects sentencing, this decision shouldn’t make the pending appeal to the Supreme Court moot. Whether the Supremes will grant cert or not, I have no idea.

The Final Four

[ 0 ] February 26, 2010 |

Today’s games should both be interesting. The Miller/Kiprusoff matchup this afternoon should be fun. As a Canada rooter, I’m actually a little leery about the Slovakia matchup; just as people overreacted to the loss to the U.S. (particularly given the extent of Canada’s territorial advantage), it’s almost as if thing got set up a little too perfectly. As Switzerland has been twice in a row, I would expect Slovakia to be a tough opponent. But forced to pick I think we’ll see a rematch of ’02…

…er, I meant to say that by the time I turned the game on the Americans would already have completely blown out Finland.

"I am never wrong about anything, and all the pains I have taken to verify my notions have only wasted my time."

[ 0 ] February 26, 2010 |

I’m no G.B. Shaw, as my previous post makes plain.* But since it turned into a version of Humiliation, I say we all should play. What lesson drilled into your head by someone you trusted later turned out to be hilariously misguided? I can start the festivities again by pointing you to an account of the undergraduate honors seminar in which I learned to never trust the Jews.

*The quotation is from a letter to H.G. Wells in which Shaw chided him for being too sanguine about the future of Stalinist Russia.

Libel laws

[ 1 ] February 26, 2010 |

Like any good traitorous socialist lefty, I am supposed to treat European culture and politics as decidedly superior to the American alternative. And I often do! But on the subject of libel laws, it seems quite clear to me that Americans have a much more sensible approach than, at a minimum, the English and the French. The appalling nature of English libel laws became known to me through McDonald’s decision to turn a couple of environmental activists into free speech martyrs with a libel suit in 1990. This was, predictably, a bit of PR fiasco for McDonalds, and many of the claims made by the activists were determined in court to be true. Still, it’s appalling that McDonalds was able to drag a couple of protesters into court for the better part of a decade, and the burden of proof fell squarely on the defendants.

In looking up the case I’m pleasantly reminded that five years ago the European Court of Human Rights agreed with me:

The ECHR ruled that the lack of official funding had effectively given rise to procedural unfairness and denied the litigants a fair trial. It was held to have contributed to an unacceptable inequality of arms with the Corporation. The court ruled that there had been a violation of Article 6.1. The award of damages ordered against the litigants was deemed disproportionate to the legitimate aim served. The court found that the damages awarded “may also have failed to strike the right balance”, The subsequent awards were £36,000 for Steel and £40,000 for Morris.

Now, via Henry Farrell, I learn the French appear to have similar issues. Henry’s post and the EJIL summary and statement are well worth reading, but the executive summary is: Karin Calvo-Goller writes a book, it recieves a negative review in the European Journal of International Law, she demands the editor take down the review from the website, he refuses, she sues him for libel, and now he will be forced to defend himself in a criminal proceeding at his own expense. The substance of her complaints seem quite specious to this non-expert on her subject, and the review itself is a pretty run of the mill negative review. In the pretrial hearing, he was told by the examining judge that she couldn’t rule on substance and the case would be going to trial. Obviously, the idea that book review editors could be subject to criminal sanction, or even defending themselves against criminal charges, could certainly have a chilling effect on free speech and academic freedom.

As with the McDonalds case, it’s difficult to grasp why the complainant finds this particular course of action wise. Even if the book review in question contained actionable libelous claims, which seems doubtful, the notoriety of effectively declaring oneself an enemy of academic freedom will surely do more damage to her reputation than a couple of unfair critical remarks in a book review.

I’d certainly be curious to hear a defense of the “burden of proof lies on the defendant” approach to libel law on the merits, because it’s not easy for me to imagine what that would look like.

In the EJIL editorial linked above, the editor who is headed to court makes the following appeals for assistance:

a. You may send an indication of indignation/support by email attachment to the following email address Kindly write, if possible, on a letterhead indicating your affiliation and attach such letters to the email. Such letters may be printed and presented eventually to the Court. Please do not write directly to Dr Calvo-Goller, or otherwise harass or interfere in any way whatsoever with her right to seek remedies available to her under French law.
b. It would be particularly helpful to have letters from other Editors and Book Review Editors of legal and non-legal academic Journals concerned by these events. Kindly pass on this Editorial to any such Editor with whom you are familiar and encourage him or her to communicate their reaction to the same email address. It would be
especially helpful to receive such letters from Editors of French academic journals and from French academic authors, scholars and intellectuals.
c. Finally, it will be helpful if you can send us scanned or digital copies of book reviews (make sure to include a precise bibliographical reference) which are as critical or more so than the book review written by Professor Weigend – so as to illustrate that his review is mainstream and unexceptional. You may use the same email address

I think I’ll send in Brian Barry’s review of Nozick, and perhaps Okin on Sandel or Nussbaum on Butler.

How About, "They’ve Earned The Right To Act However They Want"?

[ 0 ] February 26, 2010 |

Alas, it’s not just that this silly Newsweek article attempts to establish mistress etiquette, it’s the latest example of someone attacking Elizabeth Edwards for not responding to being betrayed in the right way:

His wife was “Saint Elizabeth,” who suffered on through the death of a child and an incurable-cancer diagnosis to help her husband do good. Now she looks like an artful manipulator, ruled by vengeful hysteria.

Well, first of all, the last time I checked she did suffer the loss of a child and was diagnosed with bone cancer, and I’m enough of a softie to even think they remain relevant when one is tempted to pass judgment on her behavior. I trust that the sexism inherent in saying that a woman who reacts with some measure of emotion when she finds out that her husband is cheating on her is ruled by “hysteria” is self-evident, and if any of her interactions with campaign workers would be worthy of notice if they were the work of a male campaign operative I’m not aware of them. And, to repeat what I’ve said before, I remain puzzled by people who think that adultery is serious enough to disqualify a man* from public office, but if his wife is visibly upset about said adultery she must be completely nuts.

*Well, not any man. Lacking the fine-tuned moral sensibility of a Villager, I remain unclear about why Edwards is worse than Hitler, while America’s Mayor (TM) — who not merely cheated on his wife but seemed to take malicious pleasure in humiliating her and their children in public — remains a respected public figure and (by the media) presidential candidate.


[ 0 ] February 26, 2010 |

Paterson not running for re-election as governor. Apparently, it’s a long way down responsibility road.

One thing worth noting is that, while it will get much less attention (especially nationally), the scandal that seems to have ended Paterson’s political career would in any rational world be considered much more serious than those that have presumably ended the political careers of the likes of Mark Sanford or John Edwards. (Or, although the commercial transaction makes it slightly trickier, Elliot Spitzer.) Without getting in to moral comparisons, abusing the powers of your office to protect a domestic abuser strikes me as much worse than consensual adultery from the standpoint of one’s fitness to stand in office.

Outliers to the fore!

[ 0 ] February 26, 2010 |

Because I teach rhetoric, not statistics, I chose not to have my students run standard deviations and what-not on the results of their final surveys. (Discipline-specific research classes further down the line will teach them the correct arcane maths to perform upon their data.) Instead, I thought I’d teach them how to present their oversimplified results in a professional manner, i.e. how to couch the results of their small surveys in language that acknowledges the limitations of generalizing from scant data. Since the majority of their citations came from the Ed Diener-edited Journal of Happiness Studies, that seemed like the best place to filch examples from. But what I found there dismayed me as both an academic and a former baseball player.

My baseball career was not illustrious: I was a defensive specialist whose slugging percentage mirrored a batting average that occasionally threatened to break the Mendoza line. Despite rarely making contact and having no power to speak of, during the summer of my junior year I slugged a Ruthian .640 and flirted with a .500 batting average … for 52 non-consecutive at bats against pitchers whose deliveries I knew intimately from having played behind them for three seasons.* To extrapolate my true talent from that five-game series would be the height of folly for the simple reason that the sample size would be hilariously small. Even for something as statistically quantifiable as hitting ability, a data set of fifty-two captures nothing of statistical significance.

Or does it? Because today I learned that I could have been the greatest hitter in the history of the game: the aforementioned journal considered the results of a survey of fifty-two people important enough to warrant publication. If that’s all that’s required to establish statistical significance in academia, it should be more than enough to demonstrate the same in a silly children’s game. By those standards, proof of the illustrious career I would have had can be derived from the self-reported data above so long as I include a paragraph like this one in the “Discussion” section:

The study has limitations which must be taken into account when findings are interpreted. According to common statistical guidelines, the present sample size was small, resulting in modest effect sizes, so the findings should be viewed as preliminary, and requiring replication in a larger sample. Interpreting this evidence is by no means straightforward, but the way we interpreted our findings were consistent with the theoretical position we entertained. In sum, preliminary investigation indicates that Scott Eric Kaufman likely would have been the best hitter in the history of professional baseball.

So my assignment for my students is to isolate ten examples of the rhetoric of dubious-but-professionally-acceptable hedging in the Journal of Happiness Studies and employ them in their discussion of the results of their surveys. If their pool of 52 students happens to contain two homosexual women of African-American descent who are also on the dean’s list, they can generalize about the academic achievement of all African-American lesbians so long as they couch their conclusions in the speculative rhetoric found in the journal. This may seem irresponsible of me, but remember that my purpose here is to teach them how to write well and read critically, and if they’re parroting the prose of established scholars and learning to mistrust certain rhetorical tics, I’ve done my job.

*I went something like 26-52 with 10 doubles, all of which were pulled down the line. They tipped the breaking pitches they couldn’t throw for strikes, so I sat on the two-seamers that never really sank, started swinging outrageously early and yanked them down the line.

Update: Read the comments before you decide to SMASH. Apparently my undergraduate statistics teacher pushed the anecdote-is-not-data argument a tad too enthusiastically, so my annoyance with a sample size of 52 is unjustified. Fortunately, as they say: Blogs is for learning.

Update 2: Despite the manner in which I flubbed the discussion of sample sizes, the exercise described in this post had its intended effect (which just goes to show why I should not be teaching statistics, as was suggested in the comments, and stick to what I know how and was trained to do).

Where Do You Draw The Bright Line?

[ 0 ] February 25, 2010 |

For the second time this week, the Supreme Court issued a ruling applying its famous Miranda ruling. A lower court had ruled that because two years had elapsed between a suspect first invoking his right to ask for a lawyer and his decision to waive his Miranda rights and admit a crime, his confession was admissible. This holding is reasonable, and the fact that crime he confessed to was molesting his 3-year-old son made the outcome overdetermined: the Supreme Court’s unanimously held that the confession was admissible. The Court also held that an initial invocation of Miranda rights essentially expires after 14 days.

Two concurrences in the case, however, point to an interesting issue about how to apply broadly-worded constitutional rights. When applying a right like the Fifth Amendment’s right against self-incrimination, some (often called “minimalists”) argue that appellate judges should issue narrow rulings based on the particulars of a case, while others argue that appellate jobs should create clear rules that will govern a wide array of cases. Antonin Scalia is the Court’s strongest advocate for creating “bright-line” rules that minimize judicial discretion. (It should be noted that this doesn’t make preferring non-minimalist jurisprudence is inherently “conservative”; Miranda itself is also an example of the Court replacing a standard that gave wide discretion to other judges with a relatively clear rule.) Scalia’s position is attractive in many respects, and all things being equal I’m inclined to agree that it’s preferable for the Supreme Court to set rules that are as clear as possible.

The twin concurrences of Stevens and Thomas, however, do point to a paradox inherent in Scalia’s approach. One of the most important selling points of creating clear rules is that giving excessive discretion to lower court judges can make their rulings essentially arbitrary. One of the most significant drawbacks to the approach is that the rules themselves can be arbitrary; as Thomas argues, the Court “does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the ‘closest possible fit’ with the Self-Incrimination Clause.” And the potentially arbitrary nature of the rule can be seen by comparing the opinions of Stevens and Thomas. The former argues that the 14-day period is probably too short and fails to consider other relevant factors, while Thomas at least implies that invocations of Miranda rights should expire as soon as custody is broken. This isn’t to say that the Court’s decision to create a clear rule is wrong, just that any means of applying a general right to specific cases has its strengths and weaknesses.

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