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Phillip Morris v. Williams

[ 2 ] February 20, 2007 |

The decision in the Phillip Morris case came down today, with the Court vacating the award of damages in a 5-4 decision. I’m extremely skeptical of this whole project of finding limits to punitive damages in the due process clause, although today’s case adds a new twist. The Court overruled the Oregon courts not because the damage award was excessive but because the award was based in part on injuries suffered by individuals who were not party to the suit. This strikes me as, if anything, even more problematic than the previous cases (and this is also where Stevens, who supported the previous cases, gets off the bus.) There’s no compelling logical reason why when dealing with punitive (as opposed to compensatory) damages the scope of the consequences of injurious actions can’t be taken into account, and I didn’t find Breyer’s opinion terribly illuminating (although I was amused by his claim that “to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation.” If the lack of standards is a problem, I would suggest we start by overruling cases that limit punitive damages based on what shocks Breyer’s conscience or on the number of fingers on Anthony Kennedy’s hands.) According to Jay Fienman, however, ruling on these grounds makes the consequences of the opinion unclear.

The other important aspect to this case is that–as I predicted–Alito and Roberts broke with Scalia and Thomas and voted to throw out the damages. Ann Althouse–of course!–implies that this is evidence of Alito’s fabled centrism, but this gets things exactly wrong. Precisely because they’re sometimes constrained by larger theoretical concerns, Thomas and Scalia will sometimes won’t go along with the tendency of conservative justices to favor business interests, whereas Roberts and Alito will have no such restraints. Today’s cases are evidence that Roberts and Alito are likely to cast more reliably conservative votes than Scalia and Thomas, not the reverse. If Alito’s adoption of this broad due process claim was (as it is for Souter, Breyer, and Kennedy) accompanied by a belief that the due process clause provides substantial protections to reproductive freedom as well as the ability of corporations not to pay more damages than the Court thinks appropriate when they harm people, it would be evidence of “centrism,” but it’s abundantly clear that this isn’t the case. Alito will, from the perspective of people with liberal constitutional values, be worse than Scalia.

We Have Always Been At War With…

[ 0 ] February 20, 2007 |

Shorter Verbatim Glenn Reynolds: “He hurts his credibility up front by saying that Iran is not at war with us — when, in fact, it has been since 1979.”

As Blue Texan asks, when does Reynolds start agitating for some Reagan administration officials–some his Pajamas Media colleagues–to be tried for high treason for selling weapons to a country we are at war with?

Anyway, as BT says make sure to check out Paul Campos’s decimation of Reynolds’s dishonest advocacy of war crimes.

…I should say, lest I be seen as endorsing everything in Campos’s column, that I also agree with Glenn Greenwald about this:

I would strongly oppose any efforts to have Reynolds academically sanctioned or punished in any way for the views he has expressed, as toxic and destructive as I find both those views and him. And the idea that there could be any criminal liability arising from such comments is absurd, and itself somewhat toxic.

Academic freedom does apply equally to tenured radicals left and right, and certainly Reynolds’s employment should never be at issue because of something he writes on his blog.

…UPDATE: Terry had this three years ago. (via AL, who has more.)

…Mona has more on the academic freedom issue.

John McCain’s Consistent Opposition to Reproductive Freedom

[ 0 ] February 19, 2007 |

Given the news that John McCain has forcefully denounced Roe v. Wade, the understandable liberal reaction is to point out the inconsistency of this legendary Straight Talker (TM). And I agree, in general, that the media myths about McCain’s increasingly risible claims to independence need debunking. Given the unpopularity of his position, though, when it comes to forced pregnancy it should be pointed out that his record is in fact fundamentally consistent: he’s for it. He has a 0% NARAL rating. He’s never met a federal abortion regulation he doesn’t like. He voted for Robert Bork, which would have meant Roe being overturned 15 years ago. He favors a constitutional amendment banning abortion. It’s true that he has said that he wouldn’t want his daughter forced by the state to carry a pregnancy to term, but basically all American social conservatism comes with an implicit self-exemption for rich white people, and John McCain’s daughter won’t have a problem obtaining a safe abortion if Roe is overturned.

So while McCain made some egregious panders about abortion when running in a primary in which his major opponent already had the social conservative vote locked up, McCain is in fact a consistent supporter of criminalized abortion.

[Cross-posted at TAPPED.]

A Self-Important Farce Is Dead

[ 0 ] February 19, 2007 |

I see that the Online Integrity project, the intarweb’s very own Euston Manifesto–a noble effort to create a non-enforceable code of conduct expressed in vague enough terms to immunize one’s own actions while attacking those of one’s enemies–is no more. It’s a sad day. Now, what can I consult to ensure that I will have as much integrity as Josh Trevino and Jeff Goldtsein?


[ 0 ] February 19, 2007 |

The “stab in the back” demagoguery becomes even more disgusting once you’ve read this.

In fairness, it must be said that Bush’s tax cut for the rich did allow Glenn Reynolds to buy a six-burner grill, so it’s a reasonable tradeoff.

…Melissa has more.

What Matt Said

[ 0 ] February 18, 2007 |

This is quite correct:

Well, no. Look, Matt Yglesias leading a caucus of 51 Democratic Senators that includes Joe Lieberman, Bill Nelson, and Tim Johnson couldn’t get much done in these circumstances either. Nor could Matt Stoller. It’s not Reid’s fault that there aren’t 60 votes for a non-binding resolution on Iraq in the Senate (except in the sense that the “nuclear option” fight was mishandled way back in the day, and Democrats should have tried to abolish filibusters altogether). Blame Lieberman. Blame Jeff Sessions. And, again, ask yourself: If Reid’s resolution is so useless, why is the GOP so determined to defeat it? And if it’s so difficult to get 60 votes for this measure, what would the point be in proposing something more far-reaching that would only fail by a larger margin? The sad reality is that what Matt and I would like to see the Democrats accomplish is, under the circumstances, very difficult to achieve. Progressives should keep the pressure on for action, but we need to understand that objective circumstances matter. This is a slow boring of hard boards kind of situation, and it’s extremely frustrating, but it’s also George W. Bush’s fault, not Reid’s.

Right. As we proceed with congressional control, it’s important to remember that we don’t have a Parliamentary system; especially in the Senate, the leadership can’t just create votes that aren’t there. And whether this is optimal or not, de facto control of foreign policy has largely resided in the White House for many decades.

Memo To the Times: Just Hire Dahlia Lithwick Already

[ 0 ] February 17, 2007 |

Scroll to the bottom of this column and weep. Do prominent op-ed pages need more women? Absolutely. Law professors? Why not. Conservative, even? Might be OK at the Times, although overrepresented on most papers. But one MoDo is far too many. Maybe she will get that Salon gig when this is over.

Anyway, I wonder what the next columns will look like. I was going to suggest an op-ed asserting with no evidence that liberals should support Samuel Alito’s nomination to the Supreme Court because he’s a Harry Blackmun-like moderate, but the Times has already published that for no obvious reason. Or maybe an op-ed about a crucial case that wastes time discussing whether Warren Burger is being referred to with the appropriate nomenclature. Oh, they published that one too. Hmm. Perhaps she will elaborate on her claim that liberals no longer believe that people have rights, and that William Brennan’s (sorry, Associate Justice William Brennan’s) passionate rights-based legacy would be apparently honored by supporting the notably robust conception of individual rights and commitment to grand theory so evident in the jurisprudence of Sam Alito. That would be even more convincing at greater length, I’m sure!

[Personal to Norbiz: I know, I know, but if the Times is publishing her it's an exception.]

"The Problem With Neoconservatives Is That Everybody Has Them"

[ 0 ] February 17, 2007 |

A commenter chez Henley explains a major problem with the Green Lantern Theory:

Iranian Rumsfeld:
“Look, you go to jihad with the naval graffiti teams that you have, not the naval graffiti teams that you would like to have. Did we equip the Mahdi Army? Yes. Did we send them Austrian sniper rifles? No. Did we give them Chinese sniper rifles? I can’t comment on that.”

Iranian Cheney:
“Western democracy is in its last throes. Those throes may, of course, last for a few hundred years.”

Iranian Feith:
“I have proof that the Americans have supplied plutonium to the Kurds. See, I have a copy of a memo by Porter Goss. Well, yes, the handwriting does look suspiciously like my own…”

Iranian Scalia:
“Actually counting the votes could do irreparable damage to Ahmadinejad.”

Iranian Bush:
“I’m running on a platform of religion, nationalism, and massive government spending. And please don’t ask me what I was doing in the 1970’s.”

Oh, wait, that last one describes the guy who won the 2005 election in Iran. Shit!

And don’t get me started on the Iranian Don Young…

…oh, and for a twofer, JH on this article: “Kudos to Matt Welch and crew for making space for the piece, but it’s a bizarre inversion that Cockburn’s reality check ends up in the ‘opinion’ section while precis of the unsourced and ill-supported suppositions of government briefers and spokespeople somehow counted as ‘news.’”


[ 0 ] February 17, 2007 |

Have I mentioned how much I hate morning radio lately?

Speaking of Which…

[ 0 ] February 16, 2007 |

I see that Joe Lieberman towel boy Dan Gerstein has deigned to share some high-Broderite musings about the phony Edwards blogger scandal. If you had never encountered Gerstein before, you might expect that a claim that “the left’s bigger digital diatribers never stopped to address the substance of what the Edwards bloggers actually wrote before joining the campaign” might be followed by some substantive discussion of what the bloggers wrote. You might also think that a claim that “the postings were widely deemed by Democrats and Republicans alike as bigoted and patently offensive [my emphasis]” to be followed by some evidence that large numbers of Democrats found the writings to be anti-Christian bigotry. Needless to say if you have read Gerstein before, you would be wrong. And it goes without saying that he discusses the two interchangeably (they’re women, they’re liberals, what’s the difference? Either way, they don’t have the what the Democratic Party needs, the ability to uncritically support a Republican President’s ruinous war with a minimum of cursing.) Which, again, is why at least liberals like Joan Walsh need to stop ruminating about Amalisa MarEwan.

Gerstein goes on to say…oh, who cares.

…Melissa has more here.

The Salon Conundrum

[ 0 ] February 16, 2007 |

To elaborate a bit on Atrios’ one liner, Salon has always been a strange animal. I was actually a premium subscriber for a couple years, and it’s always published good writers and interesting stuff. But it’s as if there’s some sort of Slate contrarianism magnet that pulls it toward mitigating good choices with choices that have no conceivable substantive or market rationale. (David Horowitz?) Again, Salon has actually done a lot of good things recently–Broadsheet is generally excellent, and brining in Daou and Greenwald was smart. And it supports good writing, Stephanie Zacharek is a very good critic, King Kauffman is very good (although he seems to take off days than late-period Johnny Carson.) But Camille Paglia? I mean, substantively, it’s incomprehensible; six years of Bush, and we want somebody engaging in speculation about Hillary Clinton’s sex life (while discussing how to spot good teethy blowjobs) and expressing her ultimate disappointment with Ralph Nader, party builder (gee, maybe something earlier could have tipped you off–the fact that he never joined the Green Party? That he sabotaged any chance they had of getting matching funds to go to swing states and fulfill his stated goal of putting Bush in the White House? And if he wanted a third party, what’s the payoff?) Haven’t the wages of vacuous snark become obvious enough by now? But leaving aside the lack of merit in her writing, she’s so over. Check out the letters–do they think any discernible market is going to shell out to read this crap at this late date? (In fairness, she did have a few defenders. My favorite: “I for one am glad Dr. P is back, despite – or maybe because of – her knack for combining serious topics with fluff.” What serious topics?) I’m almost afraid of them bringing on somebody good now, because it means the inevitable announcement next week that Salon will proudly be hosting Ann Althouse’s new blog “Pictures of”

I didn’t find the Walsh piece quite as objectionable as Atrios, but it’s still frustrating in a couple places. What I found most annoying is her reading straight from the Bill Donohue playbook here:

The posts that got them in trouble were intemperate in their take on Catholicism, but that’s not the only thing they’ve been intemperate about. They are young and brash. Like many of us, they sometimes blogged first and asked questions later. Their blogs are passionate and sometimes funny; the writing is uneven, but the commitment to candor and to street-fighting the right wing are not. If Bill Donohue hadn’t come along to make them a campaign issue, somebody else would have. I don’t say that to bash Marcotte or McEwan, just to ask whether Edwards’ move to hire them was really thought through carefully.

I’ve asked this before, and I’m going to keep asking it until people (especially liberals) keep repeating it: where is McEwan’s intemperate take on Catholicism? I don’t believe Marcotte’s writings are anti-Catholic bigotry, but I can certainly understand that you wouldn’t need to be Bill Donohue to find a couple posts offensive, and I can understand the argument that a Presidential campaign needs to be careful about this. But McEwan, as far as I can tell, never discussed Catholicism specifically at all, and the idea that simply attacking the policy views Christian conservatives (yes, sometimes using Cheney-like language, get me the fainting couch) is credibly described as “intemperate” Catholic-bashing is absurd. In addition, their writing styles just aren’t that similar. It’s not suprising that being young, liberal women is enough that the Bill Donohues of the world would discuss Amanda and Melissa as if they were interchangeable, but I expect more from what is set up to be a major thinkpiece from a prominent liberal magazine.

I Don’t Think I’m Respectable, But…

[ 0 ] February 16, 2007 |

I saw these guys opening for Rainer Maria at their farewell show at the Bowery, and…ugh, teh suck. Really, they were too generic for me to even say that I liked their sound, but otherwise Yglesias gets it right on this one. And I couldn’t leave during the set to get a beer because I had a really good space up front I didn’t want to surrender. (I kind of liked the other Brooklyn opening act, who sounded even better in retrospect because they actually had a sound of their own, although I’m vaguely more prog-tolerant than most people of taste.)