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The federal government is like Schlitz after Schlitz stopped being a good beer

[ 0 ] March 7, 2010 |

This is possibly the worst metaphor in the history of, um, . . . history.

For one thing, putative changes in the perceived legitmacy of a political regime cannot in any way be compared usefully to consumer preferences in regard to beer. For another, Schiltz always sucked. For a third — ah forget it.

OK seriously, this kind of thing is embarrassing to law professors, bloggers, non-arboreal bipeds, both late justices Harlan, and the state of Tennessee.

Ann Althouse defends Rush Limbaugh from accusations of race baiting

[ 0 ] March 6, 2010 |

As Hendrick Hertzberg points out, for people like Althouse the only significant form of racism left in America appears to be the racism of liberals who patronize black people (by electing them president apparently), while falsely accusing conservatives of racism, when they’re the real racists (Harry Reid! The 1964 Civil Rights Act, enacted over the objections of the Democrat Party etc etc).

Hertzberg also points out that he didn’t claim Limbaugh was a racist — only that he used “racist coding.” In any case, what sort of person listens to the audio clip to which Hertzberg links and feels impelled to defend Limbaugh?

Justice for sale

[ 0 ] March 5, 2010 |

If Rahm Emanuel is actually deciding what sort of trial KSM et. al. should get on the basis of what he calculates would be most politically convenient for the Obama administration, then the only honorable thing for Eric Holder to do is to resign. It’s every bit as illegitmate for the White House to order Holder what to do in this matter as it was for Richard Nixon to order Elliott Richardson to fire Archibald Cox. Barack Obama (let alone his messenger boy Emanuel — or is the other way around?) is not the nation’s chief law enforcement officer: Eric Holder is. Holder has spent the last three months telling everyone that considerations of basic justice argued for trying KSM in our regular courts, rather than in military tribunals set up for the purpose of disposing of particularly troublesome criminal cases.

When Richardson and his deputy William Ruckelshaus were ordered to do something perfectly legal but also perfectly disgraceful, they resigned (their underling Robert Bork had no such scruples).

It’s simply outrageous for White House officials to make prosecutorial decisions of this sort, and in this manner. It’s essentially no different than having Rahm Emanuel order the DOJ to indict certain persons, against the better judgment of government’s top lawyers, because such indictments are calculated to improve his boss’s political fortunes. Or is that the next step in the administration’s ongoing “pragmatic” accomodation to the worst impulses of the American political system?

See also Scott Horton:

In sharp violation of rules of prosecutorial conduct and ethics, political figures in the White House are engaged in the micromanagement of decisions concerning the prosecution of individual criminal defendants. Rahm Emanuel is a political figure, without any serious legal expertise or abilities. He openly presented the question as a matter of political opportunity—thereby infecting the criminal justice system with political horse-trading. This is more than just unseemly. It presents a direct affront to the integrity of the criminal justice system. After eight years in which Karl Rove manipulated essential prosecutorial decisions at Justice, now his successor is engaged in the same type of misconduct. But unlike Rove, Emanuel does it openly.

Forget it Jake — it’s Star Wars

[ 0 ] March 4, 2010 |

Having been born at the tail end of the baby boom, I’m now about a quarter century older than most of my students. This creates certain pedagogical challenges, one of which is that I often don’t have a good sense of what cultural and historical allusions and illustrations are going to resonate with or even be comprehensible in a classroom setting.

For example, last semester, I wanted to reference the ending of Chinatown to highlight a couple of points about the legal system, so I asked a class of about 55 students how many of them had seen it. A total of one student raised her hand. She said “do you mean the one in San Francisco?”

Just this week in a seminar on criminal punishment we were discussing punishment as revenge fantasy, and I discovered that none of the dozen or so students had seen either any Dirty Harry films or any portion of Charles Bronson’s Death Wish oeuvre.

Now this circumstance could easily degenerate into a Pete Hamill-style Grumpy Old Man lament on how in the innocent 1970s we had quality filmmaking and the only drug was joy, but I’m curious regarding the extent to which both modern media and contemporary demographics have changed expectations regarding inter-generational familiarity with popular culture. When I was an undergrad 30 years ago I would have thought it very strange if professors assumed any kind of familiarity on my part with the American pop culture of 1950. My expectations are bit different, perhaps unrealistically so, for two reasons: Netflicks and the cultural domination of the boomers. For instance, when I discuss the bundle of sticks metaphor for property rights I assume I can put up the cover of Led Zeppelin IV on a slide and it will be familiar to a non-trivial portion of the class (this assumption has proven to be accurate).

On the other hand, you have the Chinatown-Dirty Harry-Death Wish problem. I sort of feel like my students should have seen Chinatown, in the same way they should have read The Great Gatsby. Expecting them to be familiar with Harry Callahan’s hand cannon and accompanying witticisms, let alone the repulsive Death Wish series, is another matter (although I do think the Eastwood films are both a reflection of and have influenced some important cultural beliefs about the relationship between law, violence, and justice).

Anyway, at this point I find that the only two film references that I can always count on the vast majority of the class to get are The Wizard of Oz and the first Star Wars trilogy. I’m wonder about the extent to which technology has and will gradually change this circumstance — that it is or will make pop culture, both in its high art and low schlock manifestations, more reliably intergenerational as pedogogical references or just subjects of general conversation.

You know what I want

[ 1 ] March 3, 2010 |

Or maybe you don’t.

Criticizing Tom Friedman columns is like shooting fish in a barrel (btw what does that even mean? I always pictured a barrel full of water with fish swimming around and somebody blasting away with a revolver, which doesn’t sound easy at all. I guess maybe it means the fish are dead already and filling up a water-free barrel in a general store in the 19th century. Or something. I’m not looking it up).

Anyway . . . Back to the barrel fish shooting. Friedman seems to get all his metaphors and his social analysis straight from his frequent flyer account: LAX strikes him as kind of shabby these days, ergo the U.S. is failing to save and invest, unlike the thrifty and mysterious Chinese.

Then we get one billionaire interviewing another billionaire about whether it would be a good idea to cut taxes on companies run by billionaires. Can you guess the answer? I knew you could . . .

As Yglesias points out, it literally does not even appear to occur to Friedman that the CEO of Intel might be expressing something other than his completely altruistic concern for the welfare of the American people when he gets Tom Friedman to reproduce an Intel press release in the form of a New York Times op-ed column.

The Rule of Three

[ 0 ] March 2, 2010 |

Who should be the third name in this series? “Mickey Kaus’s campaign for Barbara Boxer’s U.S. senate seat has now been endorsed by Glenn Reynolds, Jonah Goldberg, and . . .” Surely this blog has a special role to play regarding such issues.

N.B. This is a real question in the United State of America, in this the two thousandth and tenth year of the Christian Era. Also.

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.

Establishment media discovers establishment critics are really DFHs after all

[ 0 ] February 25, 2010 |

Stop the presses!

I swear if I read one more thing about spoiled Baby Boomers not understanding the gloriousness of The Greatest Generation I’m going to move from dissent to resistance.

Also, 1968 was 42 years ago, so anybody much under 60 wasn’t really around for “the Sixties.” Listening to Disraeli Gears in your dorm room in 1982 doesn’t actually count, as I know from first-hand experience.

Glenn Reynolds suggests defaulting on the federal debt as a way to balance the budget

[ 0 ] February 20, 2010 |

Reynolds will probably claim he was joking, but he seems to forget that a lot of people these days aren’t getting the joke.

I have a vague memory of some Werner Herzog film set in Wisconsin in the winter, in which a couple of developmentally disabled fellows are sold a Winnebago RV even though they have no money. It’s repossessed and sold at an auction during an incredibly bleak midwinter afternoon. In the course of the auction one of them turns to the other and says something like, “You know, I thought we might have to pay for that thing one day.”

UPDATE [SL]: His response is actually worse than Paul guessed. Needless to say, it contains no defense of his idiotic idea on the merits, but does claim that Obama is “trying to turn the United States into Zimbabwe.” (This is even more hilarious when you remeber that Reynolds calls Bartlett’s substantive response “intemperate.”) Let’s leave aside the problems with comparing a program that would leave the United States with a smaller state than such failed states as Canada, the UK and Germany to Zimbabwe. If running deficits makes you Robert Mugabe what does that make Reynolds, who favors upper-class tax cuts (they allowed him to buy a six-burner grill, so they must be good public policy!), many more ruinously expensive wars, and as far as I can tell no non-trivial specific spending cuts?

Ronald Reagan: Soft on terrorism

[ 0 ] February 19, 2010 |

Scott Horton interviews Will Bunch about his book Tear Down This Myth. Bunch’s most interesting contention is that, on terrorism-related issues such as torture, “collateral damage,” and treating terrorism within the confines of the ordinary criminal justice system, Reagan was far to the left of the contemporary GOP (Bunch doesn’t put it this way but, if his description of Reagan’s positions is accurate, he was also to the left of Barack Obama on these issues).

5. Ronald Reagan signed the Convention Against Torture, and his Justice Department indicted and prosecuted a Texas sheriff for waterboarding. How can his views about torture be reconciled with the current Republican pro-torture dogma?

It’s important not to nominate Reagan for sainthood in the arena of human rights. His “Reagan Doctrine” in Central America, leaving the fight to anti-Communist thugs and death squads that the then-president called “the moral equivalent of our Founding Fathers,” is arguably the gravest moral failing of his tenure. That said, back on U.S. soil, Reagan was far to the left of the 2010 Republican Party on issues such as torture. The convention that he signed in 1988 holds that there is no circumstance of any kind that permits torture, which certainly would include the 9/11 aftermath and related anti-terror efforts today.

But it goes even deeper than that. As I noted in an early 2010 blog post: “Reagan would not have approved of drone-fired missile attacks aimed at killing terrorists; as president, he several times rejected anti-terrorism operations for the sole reason that civilians would have been killed by collateral damage. In 1985, he surprised aides such as Pat Buchanan by ruling out a military response to a Beirut hijacking for fear of civilian casualties; Lou Cannon reported then in the Washington Post that Reagan called retaliation in which innocent civilians are killed “itself a terrorist act.” And the idea of trying terrorists in military tribunals as opposed to a civilian court of law? The Reagan administration was completely against that. Paul Bremer (yes, that Paul Bremer) said in 1987, “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law, against them.”

It’s almost tragic—when you go back to the very recent history of the 1980s—when you realize how seriously an American consensus on human rights and the power of our criminal-justice justice system has been trashed by the modern conservative movement. It’s going to take a long time to get that back—although the words that Reagan and his aides left behind could help America get past this.

When is crashing a plane into a building in an act of explicit political violence not terrorism?

[ 0 ] February 18, 2010 |

There must be some fundamental difference between this guy and the 9/11 terrorists (besides sheer scale), but somehow I can’t quite put my finger on it.

(CNN) — An Austin, Texas, resident with an apparent grudge against the Internal Revenue Service set his house on fire Thursday and then crashed a small plane into a building housing an IRS office with nearly 200 employees, officials said.

Federal authorities identified the pilot of the Piper Cherokee PA-28 as Joseph Andrew Stack, 53.

Two people were injured and one person was missing, local officials said. There were no reported deaths.

A message on a Web site registered to Stack appears to be a suicide note.

See iReport photos and videos from the scene

“If you’re reading this, you’re no doubt asking yourself, ‘Why did this have to happen?’ ” the message says. “The simple truth is that it is complicated and has been coming for a long time.”

In the lengthy, rambling message, the writer rails against the government and, particularly, the IRS.

See text of the note (PDF)

The building into which the airplane crashed is a federal IRS center with 199 employees.

Two F-16 fighter jets were sent from Houston as a precaution, but federal authorities said preliminary information did not indicate any terrorist connection to the crash.

“We do not yet know the cause of the plane crash,” the Department of Homeland Security said in a release. “At this time, we have no reason to believe there is a nexus to terrorist activity. We continue to gather more information, and are aware there is additional information about the pilot’s history.”

Kevin Smith and MeMe Roth

[ 0 ] February 18, 2010 |

I have a piece in The Daily Beast on the Kevin Smith Southwest Airlines incident. What happened to Smith, who was apparently aribtrarily thrown off a flight for being too fat, is the kind of humiliating incident to which bigger than average people are subjected to constantly. Some day they’re going to start getting mad.

(MeMe Roth’s birth name was Meredith. I wonder if anyone has ever pointed out to her that changing your name to MeMe is like sticking a post-it note on your forehead saying “I have narcissistic personality disorder.”)