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Fact-Challenged in the Most Republican Way Possible

[ 81 ] November 8, 2015 |


The real story behind the Ben Carson “Perceptions 301” story Paul referenced yesterday is somehow even more hilarious than if he had just made everything about it up.  Apparently, he convinced himself that being the last sucker to identify a hoax was actually the sign of his immense honesty and integritude, and then invented various facts to justify his self-flattery.

The explains a lot about his quack pharmaceutical grift.  And his belief that being a particularly egregious sucker is a sign of personal virtue is so closely aligned with the Republican base maybe he can win the nomination after all…


Some Notes on the Yale Not Actually Free Speech Controversy

[ 338 ] November 7, 2015 |


A few points on the Yale Halloween discussion:

  • Burgwell’s original email was entirely unobjectionable, and was not in any way inconsistent with principles of free speech. It did not announce a policy that required anyone to do anything.  It encouraged people not to wear racially insensitive costumes.  Uh…good?  What’s the problem here?
  • Erika Christakis’s email, conversely, was rather silly.  Nobody was trying to “control” what people were wearing, and her argument that these emails didn’t give students the appropriate space to be “offensive” and “obnoxious” was extraordinarily unconvincing on the merits, not least because it ignores both the asymmetrical effects of racist Halloween costumes, particularly in the context of Yale’s still ongoing issues of racial inequity.   (The detail that the university still has a building named after John Calhoun is instructive.)
  • The context of the allegedly racially exclusionary frat party is also very important.
  • Calling on someone to resign, whether right or wrong, is free speech.
  • I don’t think Christkis’s email was a firable offense, and I don’t agree with all of the reaction against it.  But it is certainly worthy of substantial criticism.

“It doesn’t matter. Nothing is going to happen to him anyways.”

[ 64 ] November 6, 2015 |


Greg Hardy’s domestic assault is as horrifying a story as you would fear. 

One really important part of the story is that it’s extremely unclear why prosecutors dropped the case on appeal, since Holder would not have had to testify:

With Holder gone, prosecutors had the choice of dismissing the charges or trying to introduce Holder’s statements as part of the trial. Murray’s office reviewed the interview that Holder gave to police and compared it to a transcript of the bench trial. (District court criminal trials aren’t recorded by a court reporter in North Carolina, Murray wrote, but Hardy’s defense team had hired one and eventually agreed to let prosecutors see it.)

“In comparing the prior statement with Ms. Holder’s District Court testimony, the State concluded that, in her absence, it did not have sufficient legal basis upon which to introduce the initial statement she provided to law enforcement,” Murray wrote.

What does that mean? My repeated attempts to reach Murray for comment got nowhere—he never returned a phone call or email I sent. The assistant district attorney who handled the case, Jamie Adams, has since left the office; I wasn’t able to reach her. At the time, the News & Observer reported that, “Several legal experts around town speculated that prosecutors spotted inconsistencies that prevented them from building their case around Holder’s former accounts.”

There are minor inconsistencies in Holder’s versions of events—in court, for instance, she added a part about Hardy ripping a necklace off of her and throwing it in the toilet, then slamming the toilet lid on her arm repeatedly when she tried to get the necklace, and left out the part where he takes out a cell phone—but the overall order of events stays pretty much the same. None of the inconsistencies in her tellings are nearly as significant as the discrepancies in the various versions of events that Hardy has given.

At any rate, the case was dropped, Hardy was declared legally innocent, and he went back to the NFL a bigger star than ever. (Both the NFL and the Dallas Cowboys declined to comment.) In the end, Holder was right. Her own prophecy came true, despite her own attempts to prove it wrong.

The question of whether he should be playing the NFL is an interesting one, but the much more important question is why he’s not in prison.

Could A Particularly Pointless Vanity Campaign Have Saved Us All?

[ 55 ] November 6, 2015 |


Albert Burneko laments the fact that someone who was never actually running for president is no longer running for president:

Lessig’s résumé, by any reasonable standard, is very impressive. He is among America’s most credible and authoritative voices on political and campaign finance reform, as well as on technology and internet rights, which will be among the most important areas of public policy in the 21st century. He has degrees in economics, management, philosophy, and law; he has clerked in the Supreme Court; and he is one of the top professors at Harvard Law School, from whence graduated the current presidents of both the United States and Taiwan, five of the nine sitting justices on the U.S. Supreme Court, sitting U.S. Attorney General Loretta Lynch, and damn near every other political figure whose name you know who has a law degree. He helped write the constitution of the nation of Georgia! He co-founded Creative Commons! He was fictionalized in an episode of The West Wing, for god’s sake! How many of the other candidates have been portrayed by Emmy- and Independent Spirit Award-winning thespian Christopher Lloyd, I ask you? None of them.

And yet, none of this—nor a campaign as formally and legitimately declared as any other, nor fundraising and polling numbers not meaningfully smaller than Jim Webb’s or Martin O’Malley’s—could even get Lessig on the stage for the Oct. 13 Democratic debate.


Imagine you are an alien from a distant, highly advanced, space-faring civilization. You have been sent to observe the species in charge of planet Earth, to determine what relationship, if any, your species should have with theirs. From your invisible spaceship high in the atmosphere, you download to your quantum meta-cortex (at bitchin’ data-transfer speeds) all the information you can get about the contest currently underway to choose a leader for what has been Earth’s most powerful nation for the past 60 years or so. This nation is in decline; on that there is near universal agreement. It faces major challenges, among them what might eventually be existential threats to human civilization. This is serious business, and from it you will learn a great deal about these curious sweaty hominids.

And, hmm, well, jeez. Whatever can this mean? They found room in their persuasive arguing contests for Lincoln Chafee; for Donald Trump; the supposedly progressive party carved out space for Ronald Reagan’s Secretary of the Navy to rail against racial inclusiveness in anti-discrimination policies; the supposedly pro-business one made room for a business executive whose boldest and most defensible claim to leadership mettle is that the corporation from which she fired 30,000 workers had not altogether ceased to exist when it got around to firing her for incompetence. But, for the renowned expert on law and representative government, the one with practical experience in and actual informed positions on the major public concerns of the day? Shit, I guess they ran outta lecterns.

Here’s the thing: politician is a job of its own, and Larry Lessig really isn’t remotely qualified to do it. Not every smart person who has written books and has expertise on certain political issues is capable of being a good political leader. Policy expertise is no guarantee that you’ll have good ideas about how to bring desirable policy changes about, and Lessig has now shown this multiple times, after attracting money that could be used for something that’s actually useful.

Lessig wasn’t running for president — he was running to bring issues to the table. So we have to consider what, exactly, of value he was trying to bring to the table. Did he stake out a position rejected by most mainstream Democrats? Nope. His views campaign finance and electoral reform are not meaningfully different from those of Clinton, Sanders, or O’Malley. He wasn’t trying to push the Democratic center of gravity to the left like Sanders is trying to do on economic issues.

So any added value he was bringing to the table had to involve ideas for achieving campaign finance and electoral reform while Republicans have a hammerlock on the House of Representatives and control the median vote on the Supreme Court, or for attracting more support to the cause. And on both fronts, for all of his credentials and policy expertise his ideas were just transparently stupid. (There’s a reason Burneko spends a lot of time discussing Lessig’s cv and no time discussing the details of his actual campaign.) A presidential candidate cannot transform an election into a “referendum” by refusing to discuss other issues. The word “mandate” does not suddenly make all structural limitations on political change disappear. You cannot attract support to an important cause by ignoring most of the issues your constituents want to talk about. Pledging to take your ball and go home once Congress addresses your single issue is not actually a source of leverage, and also makes you look like the dilettante you in fact are. Needing Drew Westen — the leftier Mark Penn — to tell you that this is even worse. The fundamentally condescending nature of Lessig’s campaign — we need a real expert to show these professional politicians how to get Republicans to pass legislation contrary to their ideological and practical interests! — just makes the fundamental unseriousness of his No Labels pablum and silly ideas about how to make omnibus electoral reform happen look all the worse.

On the narrow issue of the debates, I have a certain sympathy for the view that if Lincoln Chaffee can be permitted onstage, Lessig should have been. On the other hand, it’s worth noting that the support threshold for participating in the Democratic debates is so low that, er, Lincoln Chafee could clear them. He didn’t clear the threshold in large measure because he didn’t enter the race in a timely manner, but he should have know the rules in advance. And it’s also awkward for the DNC to make a special exemption when a candidate announces in advance that he’s not willing to discuss most of the topics the other candidates will address. But, ultimately, I wish he had been invited to the debates so nobody would tempted to argue that his failure to gain any traction was part of some sort of DNC conspiracy to silence him.

I conclude by once again citing the great Garry Wills:

It is too easy to conclude, prematurely, that the only “way to save oneself is to bury oneself.” Seneca would judge that a politician who refuses to answer questions has barely been engaged in the first place. Those who decide they are too good for politics may be right, but they are often the least qualified judges, either of their own virtue or the system’s viciousness.

Moving Wealth Upward

[ 27 ] November 6, 2015 |

That’s Marco Rubio’s tax plan.

Also, There Will Be Outside Agitators!

[ 47 ] November 5, 2015 |
A man urges people to vote against the Houston Equal Rights Ordinance outside an early voting center in Houston on Wednesday, Oct. 21, 2015. The contested ordinance is a broad measure that would consolidate existing bans on discrimination tied to race, sex, religion and other categories in employment, housing and public accommodations, and extend such protections to gays, lesbians, bisexuals and transgender people. (AP Photo/Pat Sullivan)

A man urges people to vote against the Houston Equal Rights Ordinance outside an early voting center in Houston on Wednesday, Oct. 21, 2015. The contested ordinance is a broad measure that would consolidate existing bans on discrimination tied to race, sex, religion and other categories in employment, housing and public accommodations, and extend such protections to gays, lesbians, bisexuals and transgender people. (AP Photo/Pat Sullivan)

Ann Althouse is fascinated by the views of people who opposed the Houston civil rights ordinance, wishes to subscribe to their newsletter, and believes you should not suggest that their opposition to civil rights is motivated by bigotry:

The first sentence of a NYT editorial titled “In Houston, Hate Trumped Fairness.”

The language is so extreme — “vilifying,” “hate.” It seems to me that the focus on access to women’s bathrooms wasn’t aimed at the transgendered at all, but on males who might take advantage of a new opportunity to engage in voyeurism and sexual assault.

Hmm, should we take the “BUT MEN IN WOMEN’S BATHROOMS!!!!!!!!!!” objection to civil rights protections seriously? Let us consider the arguments advanced by Althouse:

  • Do civil rights ordinances provide an “opportunity” to engage in sexual assault?  No, they do not — sexual assault remains in fact remains illegal, and Houston repealing its civil rights ordinance will not physically bar any man who wishes to enter a women’s restroom to commit sexual assault in any case.
  • Do civil rights ordinances provide an “opportunity” to engage in voyeurism?  No, they do not.   Houston repealing its civil rights ordinance will not physically bar any male pervert who wishes to put on a wig and enter a women’s restroom.  In most cases, the only way to know if someone doing so is actually male is if he engages in behavior that would constitute harassment even under existing civil rights ordinances.
  • Many jurisdictions already have civil rights ordinances that apply to transgender people.  Have they made BATHROOM PREDATORS a thing? No they have not, which isn’t surprising since the argument makes absolutely no sense on its face.

When someone makes a transparently bad argument as a pretext for opposing civil rights protections, it is in fact entirely fair to call them bigots.  Sorry!

You may also remember Ann Althouse from such arguments as “judges who oppose the constitutional protections for gay and lesbian people while railing against ‘the so-called homosexual agenda’ are not homophobes.”  You might say there’s an anti-anti-homophobia pattern here.


Arbitration and the Supreme Court

[ 36 ] November 4, 2015 |


I hope you all have been reading the superb NYT series about how mandatory arbitration agreements permit powerful businesses to violate the rights of consumers and employees with impunity. Andrew Koppelman adds an additional observation:

Today’s New York Times reports the increasingly widespread use of arbitration clauses in consumer contracts, with the Supreme Court’s encouragement, to insulate businesses from class action suits. The consequence is that the misbehavior that such suits target – small thefts and abuses that affect large numbers of consumers, producing millions of dollars in illicit profits – is insulated from any legal remedy.

Among the lawyers who devised this clever trick was one John G. Roberts. He later provided the crucial vote to interpret the Federal Arbitration Act to shut down consumer and employment discrimination suits, in defiance of the intentions of the act’s authors.

Doubtless class action suits can be a nuisance for businesses, and sometimes they’re not meritorious. But when they are entirely blocked, really nasty business practices can be conducted with impunity. The Times describes one case in which Sprint allegedly imposed roaming charges for customers’ cellphone calls from their homes. If this was true, each individual suffered a roughly $20 loss, far too little to be worth suing for on an individual basis, even though it was worth quite a bit to Sprint. (Sprint’s successful legal argument was that it did not matter if it was true.)

In the world that the Court’s arbitration jurisprudence has brought about, businesses that do not swindle their customers for small sums are foolishly leaving money on the table.

It gets less attention than Citizens United and Shelby County, but AT&T Mobility v. Concepcion belongs at near the top of any list of Roberts Court atrocities. Not only is the result outrageous, but the opinion is as good an illustration of Scalia’s lack of commitment to “textualism” as the sovereign immunity cases.

Standing and the Roberts Court

[ 63 ] November 4, 2015 |


Connoisseurs of bad slippery slope arguments will enjoy yesterday’s oral arguments. I suspect that the Court will decide the case by determining that there is standing in this case because there was a concrete injury, although since the case doesn’t involve a mediocre white college applicant who has long since gotten her BA there’s always the chance the Roberts Court will narrow standing yet again.

Ben Carson Is Not Running For President In Any Meaningful Sense

[ 172 ] November 4, 2015 |


Some candidates in Republican presidential primaries, even really bad ones, are actually running for president. Other candidates are running grifts. I agree it’s pretty clear that Ben Carson is squarely in the grift category:

Carson is doing a lot of things that seem puzzling for a presidential campaign, but quite logical for a brand-building exercise. He is taking weeks off the campaign trail to go on a book tour. His campaign itself is structured much more like a scamming venture than a political one. An astronomical 69 percent of his fund-raising totals are spent on more fund-raising. (Bernie Sanders, by contrast, spends just 4 percent of his intake on fund-raising.) In addition to direct mail, Carson seems to have undertaken a massive phone-spamming operation. Spending most of your money to raise more money is not a good way to get elected president, but it is a good way to build a massive list of supporters that can later be monetized. Perhaps it is a giveaway that the official title for Armstrong Williams, the figure running the Carson “campaign,” is “business manager,” as opposed to “campaign manager.” It does suggests that Carson is engaged in a for-profit venture.

Carson’s combination of flamboyantly reactionary statements and subdued (to the point of appearing medicated) persona lend him an aura of trust and honesty. Carson’s supporters see him as a brave truth-teller; his critics think he’s genuinely nuts. Even those concerned with his methods grant him the presumption of innocence — right-wing commentator Erick Erickson, running down Carson’s astronomical fund-raising costs, frets, “I suspect there are some who see Carson as a cash cow.” But it is a fallacy to imagine that a kook cannot also be a scammer. There is a long tradition of cult leaders, televangelists, and other snake-oil salesmen who were both.

We can argue about whether an actual politician will be the Republican nominee. But one thing I am very confident of is that Ben Carson has no chance of being the nominee. The fact that he spends 70% of his fundraising to raise more money — which makes sense if you’re running a long con with an extensive list of Glengarry leads but not if you’re actually trying to win primaries — is dispositive. Even if, like Gingrich, he starts off running a grift and then decides to actually quasi-contest the nomination at the last minute, he’s not going to have the resources or organization to compete with Rubio or Trump. His support will be as evanescent as that of the tomato can poll leaders in 2008.

Bigotry Triumphs

[ 235 ] November 3, 2015 |


Another loss:

Houston voters struck down a non-discrimination ballot measure Tuesday, delivering a blow to the lesbian, gay, bisexual and transgender rights movement that had campaigned heavily for passage.

Prop. 1, known as Houston’s Equal Rights Ordinance, would have barred discrimination on the basis of race, age, military status, disability and 11 other categories in a variety of areas. (Religious organizations and institutions would be exempt from the requirements.)

It was HERO’s protections on the basis of sexual orientation and gender identity, however, that attracted the most attention and made the ballot measure the center of the LGBT community’s efforts this election.

The Houston City Council narrowly approved the equal rights ordinance last year, but after a petition drive by anti-gay activists, the Texas Supreme Court ordered the city in July to either repeal it or put it on the November ballot.

This is also yet another data point showing that the idea that people will accept social changes as long as the policies are enacted by elected officials rather than judges is complete nonsense.

Everybody Beats The Whis!

[ 39 ] November 3, 2015 |


3-20! Not entirely his fault, of course, but the mismatch between his franchise QB and his own fetish for immobile, big-armed, inaccurate pocket passers was going to get him fired sooner rather than later. (I am also obliged to note that on the Winston/Mariota comparison, the scouts have now pulled ahead of the analyitics. It’s still early, and we will need to see Mariota healthy and with an offense tailored to his abilities.)

In other bad organization news, release the Gabbert! (Alas for 49ers fans, this doesn’t mean “cut.”) I suppose at this point benching and possibly selling low on Kaepernick isn’t a classic “blame your bad performance on your best players” scenario. He’s been a below-average QB for a season and a half and the trend is down. But it is certainly a “don’t make a move with player A without considering what option B is” scenario. Will Kaepernick ever be good again? I have no idea, but just two years ago he was performing on a level roughly comparable to Russell Wilson and Tony Romo. Blaine Gabbert, on the other hand, has very clearly established that he’s not an NFL-caliber QB. It’s not really clear what the 49ers are doing, but then that’s been the case for a while.

Speaking of bad QBs, watching Matt Cassel generously hand the Seahawks a game they were doing everything they could to try to lose, I can’t resist this classic HOT TAKE from a couple weeks ago. When E.J. Manuel had a typically awful first half in London, Bills fans and writers began to pine for the departed Cassel. The problem with this is rather obvious — namely, Cassel is older and even worse than Manuel:

As it happened, later that night Cassel started. Like Manuel, he was missing his top wideout. Unlike Manuel, he was playing behind a world-class offensive line. He was also playing a defense that in its most recent game gave up roughly 1700 yards and 40 TDS to Drew Brees. He threw three picks and a nifty 17.9 QBR. (Manuel was at 19.2.) One might think that this would stop someone from going with a grass-is-greener narrative the next day. You would be wrong!

Cassel, given away for a late-round draft upgrade in 2017, started for the Dallas Cowboys on Sunday against the New York Giants. He threw three interceptions and had a pick-six of his own because his receiver fell down on a weak route-running effort.

The Internet scolds surfaced after each of Cassel’s turnovers.

“Comeuppance!” they said. “You were wrong!” they said. “Benghazi!” they said.

I never said Cassel was better than Manuel. I’ve always advocated keeping both backups.

We’ll never know if Cassel would have beaten the Jaguars on Sunday, but I doubt he spots the Jaguars 20 points (they missed an extra point after converting Manuel’s last turnover).

Jacksonville is a bad team. Sunday’s game appeared to be the easiest on Buffalo’s schedule all year. Maybe Cassel saves Buffalo from throwing away a victory, a conference victory that might have tiebreaker implications. Maybe he doesn’t.

But that unimportant 2017 draft upgrade certainly didn’t make any plays in Wembley Stadium.

Matt Cassel turning the ball over three times? That’s unpossible! A conspiracy theory, even! Sure, he threw three picks later that night, and four picks in his previous game as a starter, and last showed any signs of competence in 2010, but the sun got in his receiver’s eyes and the balls were overinflated so they don’t count! Put him in the powerhouse Bills offense and he’d look great!

Really, getting rid of Cassel is the rare Bills move that actually made sense.

St. Ralph Speaks! On Behalf of Creditors

[ 76 ] November 3, 2015 |


St. Ralph Nader, America’s last honest man and only real leftist, speaks up on behalf of a true progressive cause:

Apparently, Ralph Nader is still talking, though in a way that certainly inspires a deep desire to go to Tumblr to find as many “shut up” gifs as one can find. Over the weekend, Nader published a nonsensical piece at the Huffington Post complaining that “humble savers” are getting screwed by the Federal Reserve’s unwillingness to raise the interest rate, which Nader seems to think is an elaborate plot to help the rich banks at the expense of working people.

 As Jordan Weissmann at Slate points out, the entire argument doesn’t make a lot of sense, as “relatively few households actually survive on interest income.” Most ordinary people would benefit a lot more from a robust economy than a higher interest rate on their savings account, but Nader seems to assume a nation of people living on investments rather than on paychecks, which really undermines his spokesman-for-the-working-class schtick.
But this weird piece is notable not just because of its Old Man Simpson half-baked economic crankery, but because he offers a solid dose of sexism to go with it: “Chairwoman Yellen, I think you should sit down with your Nobel Prize winning husband, economist George Akerlof, who is known to be consumer-sensitive,” Nader lectures. Yes, clearly interest rates are low because we live in a madcap world where women are not only allowed to run the Federal Reserve, but they are too willful to listen to the wise counsel of their husbands.

What I think Amanda is missing here is that raising interest rates and strangling the economy would increase the chances of a Republican victory in 2016, which will lead to the immediate passage of whatever statute Larry Lessig has declared to be the highest priority for all progressives in 2017. And, as a bonus, millionaire skinflints will have more money to contribute to critical progressive causes, like ensuring that working people don’t have access to libraries unless they meet your precise architectural specifications. Those contradictions won’t heighten themselves, people!

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