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Thoughts on Stevens

[ 1 ] April 9, 2010 |

Here.

Security Theater: Denver Edition

[ 3 ] April 8, 2010 |

I’m really looking forward to flying out of Denver later this morning, after last night’s latest outbreak of rampant hysteria and stupidity.

Because this guy is a diplomat he isn’t going to be charged with some bullshit federal offense involving “interfering” with the operation of a flight. Otherwise he’d probably end up with a felony conviction and 50K in legal bills.

Note that a couple of F-16s were scrambled, 160 people were held in custody for five hours after the flight landed, and FBI agents flew in from near and far to deal with this latest assault on our Freedoms. (No doubt part of the explanation for incidents like this is that tens of thousands of federal employees are paid to sit around waiting for something to happen that basically never happens, so false alarms trigger feverish activity out of sheer boredom if nothing else).

Meanwhile in the last five days four people in the Denver area have been killed by RTD bus drivers. The lesson, clearly, is that while we are safer than we were before 9/11, we are not yet safe enough.

How beneficial is breastfeeding?

[ 16 ] April 5, 2010 |

A new study makes some audacious claims about the supposed value of breastfeeding.

Apparently, such claims are both very common and very controversial.

I’m not familiar with the relevant epidemiological literature, but I suspect that debates in this area are influenced heavily by, among other things, the economic interests of formula makers, the cultural politics of motherhood, and plenty of other non-scientific factors.

Purity of Essence

[ 19 ] March 29, 2010 |

Dr. Strangelove

This weekend Glenn Reynolds noted that a “plausible” explanation for Barack Obama’s unwillingness to give the current Israeli government 100% of what it wants (Obama has drawn the line at 98.44%) is that our dusky Muslim overlord “just hates Israel and hates Jews.”

Some rather compelling evidence for this theory can be found here.

Why, after all, would Obama hold the first Seder in White House history? The answer is all too clear to those who, by maintaining a strict regimen of rainwater and pure grain alcohol, have managed to protect the integrity of their precious bodily fluids.

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Judicial Activism, Part MMCCCXXVIII

[ 17 ] March 24, 2010 |

I have a Daily Beast article regarding the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments.

The HCR bill does put a lot of jurisprudential and political conservatives in a tricky position. Consider the view advocated by Orin Kerr, which is that

(a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

This strikes me as a wild underestimate of the odds, for reasons I touch on in the DB article. What’s interesting to me is whether Kerr thinks the SCOTUS should uphold the individual mandate under these circumstances, and if so why?

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Ask your doctor if moral hazard is right for you

[ 2 ] March 11, 2010 |

This illustrates one of the massive inefficiencies that gets built into our massively inefficient health care system by the invidious relationship that can develop between the interests of Big Pharma and those of advocacy groups pushing for “awareness” of their cause.

About ten years ago I attended an event hosted by a couple of medical academics. It was a concert at a pretty big auditorium in Denver, and the invitees were almost all participants in the academics’ prostate cancer research trials (I was there for other reasons). This was before I had begun to study the pharmaceutical industry’s role in the obesity panic, and I remember thinking at the time, who is paying for all this? (The event was on a scale that must have cost well into six figures). That’s not a question I would ask today.

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.