Subscribe via RSS Feed

Category: General

Internet mystery

[ 116 ] May 13, 2011 |

Apparently Ann Althouse posted an item on her blog about the three finalists for the dean job at Wisconsin Law School, asking for comments regarding them. According to someone who saw the thread it didn’t turn out too well:

[A] quick thought on Althouse’s post on the Wisconsin Dean finalists: the comments not only were negative on the candidates (as you note), but degenerated into a cesspool of vile misogyny and homophobia (not only multiple calling Margaret Raymond a token “diversity” candidate, but multiple posts opining that she should get the job only if she has “big tits” and speculating that she’s a lesbian). Isn’t Althouse at risk of letting her blog turn into AutoAdmit? She has the free speech right to run whatever cesspool she wants, but is she prioritizing her desire for a widely read blog over her obligation to be a responsible member of academia? I’d prefer not to say this for attribution…only because I’m a prof at [another law school] where Margaret Raymond was named a Dean finalist too – but that’s part of why I’m so offended on her behalf; she’s a fantastic and impressive woman who deserves far better than a professor (Althouse) at a school where she’s a finalist (Wisconsin) hosting this sort of festival of misogyny and homophobia.


Now Blogger claims that Althouse (the site) no longer exists.

I have a certain personal interest in this incident because we’re currently trying to hire Margaret Raymond at CU, so if readers could hold off on the temptation to post a festival of misogyny and homophobia in the comments here that would be super helpful.

Update: Curiouser and curiouser.

The Real “Al Gore” Problem

[ 45 ] May 13, 2011 |

Is a problem with irresponsible journalists:

An Al Gore problem is what happens when the media forms an impression of your character and decides to cram every irrelevant detail of your appearance and behavior into that frame, regardless of whether or not it means anything. Thus Romney’s hair and lack of tie are now evidence of a character flaw, as is his decision to give a detailed policy lecture in a university town without being officially sponsored by a University. An Al Gore problem results in the media ganging up on a candidate like cool kids mocking a geek, with literally everything he’s doing serving as more evidence for the predetermined narrative.

It’s hard to pick a single definitive moment in the 18 month War on Gore — and I still might go with ostensible liberal and manufacturer of lies about Gore Frank Rich asserting that choosing between Bush and Gore is like choosing between the Gap and Banana Republic — but the extensive discussions of Gore’s Deeply Troubling three-button suits is probably as good a place to start as any.

The “But You Need To Strike Down Something!” Argument Against the ACA

[ 51 ] May 13, 2011 |

In comments, I think Pithlord gets at what legal arguments about the ACA ultimately boil down to: “In the real world, if courts never enforce a standard, then it isn’t real.” The commerce clause compels the Supreme Court to strike down something, so even if the arguments for doing so are notably bad, why not the ACA? In his brilliant decimation of arguments that the ACA is unconstitutional, Andrew Koppelman reports a colleague describing it this way: “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” Section III of Koppelman’s paper is a good response to this argument, but to me there are two especially obvious reasons to reject it:

  1. U.S. v. Lopez Fortunately, we already have a precedent that sets limits on the commerce powers of the federal government.   And because the law struck down was actually very marginal to the modern federal regulatory state — the law in question didn’t directly regulate the economy, it wasn’t essential to a broader regulatory scheme, and there was no reason to believe (and no attempt by Congress to show) that the states were incompetent to deal with the problem — it didn’t logically threaten New Deal and Great Society programs that only a tiny fringe believes to be unconstitutional.   Because the individual mandate meets all of the crucial conditions that the Gun-Free School Zones Act didn’t, it would lie around like a loaded weapon whenever someone wanted to challenge a federal program and be incapable of principled application, leading to all kinds of crank District Court judges throwing out random parts of the U.S. Code that they don’t like and possibly being upheld in some cases by cranks higher up the appellate chain.   So, in other words, striking down the ACA solves a non-existent “problem” by creating what to any non-libertarian are very serious problems.
  2. Gonzales v. Raich Not only does striking down the ACA to send a message solve an imaginary problem, there was a much better recent candidate if one is so inclined, and the resolution of that case should make the constitutionality of the ACA a no-brainer.   To be clear, I think Raich was correct and would have joined the majority, but if you wanted to send some kind of symbolic message this case would have been a much better vehicle.   In terms of the conditions discussed above, the case for prosecuting people growing medical marijuana is weaker than the case for the legality of the mandate — in particular, since nobody disputes that people could have been prosecuted for selling marijuana to people without a prescription, there wasn’t the same free-rider problem that exists with medical insurance markets.   In addition, like Wickard this case reveals the silliness of the “activity/inactivity” distinction.   What made Raich’s actions subject to federal jurisdiction was not the “activity” of growing marijuana (which is in itself a state matter) but the “inactivity” of not buying it from the national market.    For Kennedy and Scalia to vote to strike down the ACA after joining Raich would be hackery of the worst sort — partisan and not “political” in the sense that all constitutional law is political.

I can understand why people sympathetic to arguments that the ACA is unconstitutional want don’t want to focus on the actual merits of the argument, but the pragmatic justifications really don’t work either.   Even if we accept that it’s symbolically important to set judicial limits to the federal commerce power, a regulation that is integral to a a federal regulatory scheme that addresses an important problem that states are clearly incompetent to solve independently would be a horrible, horrible place to draw a line in the sand.

Still Dead

[ 15 ] May 13, 2011 |

I know we could be dealing with yet another Republican primary that nobody should logically be able to win, and hence anyone could win. But I still say that Mittens is drawing dead. To their credit, Republicans don’t take their own rhetoric about federalism seriously enough to give Mittens a pass for enacting a version of the Greatest Threat To Liberty There Absolutely Ever Was, and I will point out again that Mittens actually ran in that primary that any decent orthodox conservative should have been able to win — before his signature health care reform became evil in Republican orthodoxy — and lost pretty badly.

much more from Cohn.

Friday Nugget Blogging

[ 60 ] May 13, 2011 |

How can any animal be a vegetarian if it itself is made of meat?

Read more…

Wikileakers Beware

[ 38 ] May 12, 2011 |

According to Kevin Poulsen at Wired, the reconstituted Wikileaks now requires its employees to sign a confidentiality agreement that includes a $20 million penalty for disclosing internal Wikileaks documents. Why? Not to protect anonymous sources or informants named in documents, but to protect Wikileaks’ commercial interests: Read more…

Teacher to the World, Teacher to None

[ 27 ] May 12, 2011 |

SEK walks past the library on Ring Road and hears  a student hawking banana splits.


SEK momentarily thinks about how refreshing a banana split might—


SEK does an admittedly grumpy double-take.


SEK does his damnedest not to do what you know he’s going to do, but in a moment of predictable weakness, turns around and confronts the hawker anyway.

SEK: You have what now?


SEK: (politely) Are you sure that’s what you have?


SEK: Successfully?


SEK considers whether he wants to go full-on Larry David, decides against it, and begins walking away.


SEK chomps down on his tongue, lowers his head and continues walking away because him being exhausted and it being Spring Quarter is no excuse for what would otherwise inevitably follow.

You can’t spell “Jesus” without “US”

[ 31 ] May 12, 2011 |

Via TPM, I see that Mike Huckabee is marketing a home remedy for whatever historical literacy your kids might be acquiring in school. As I understand it, Huckabee has marshaled the power of 1990s computer animation software to reveal truths about the American past that only a quintet of impressionable, time-traveling teenagers — one of whom is evidently named “Barley” — could discover. The trailers suggest the series won’t be quite as inspiring as the Drunk History ouevre, but the no-risk, 30-day introductory offer comes with a pair of snappy blue binoculars and something called a “shoulder sack,” so there’s that to consider.

But before I squander my completely undeserved share of LGM’s advertising revenue on a trial membership, I need to know if the videos possess any scholarly rigor. Well, consider me reassured. To guarantee that the videos meet Huckabee’s exacting standard of historical accuracy, multiple levels of quality control have been set into place. Here’s how:

First, our lead researcher goes through various primary and secondary sources, including printed and online resources to determine the most important events and themes that will be included in each episode. Those events and themes are then woven into a script in which the animated characters experience the history first-hand. After its completion, the script is reviewed by at least two members of Learn Our History’s Council of Masters, who suggest changes to make the film as historically accurate as possible.

So it’s peer-reviewed! By a Council of Masters, no less!

Unfortunately, this particular bukkake party includes the University of Dayton’s Larry Schweikart, whom you may remember from such books as Bill Clinton’s Penis Killed the Indians and Four Dozen Strawmen in Search of an Argument. Schweikart has developed a comfortable niche for himself as a Fox News-approved historian, and my guess is that Huckabee’s new series is will turn out to be more or less a badly-animated version of Schweikart’s triumphalist narrative of US history. It would be difficult to survey adequately the depths of hackery this fellow has mined in the last decade. I’ve tried — see the last two links — but you can judge for yourself here, in the introduction to Schweikart’s book about warfare and why the United States, like Charlie Sheen, is always winning. (Surprise! The hippies help!) Schweikart has also written a new book about applying the wisdom of the Founders to contemporary political issues. In the introduction, he warns us that “[w]hen [the food Nazis] come for your Ho Hos, they won’t stop until they dictate every morsel that goes into your mouth.” Yeah, well, something tells me the kids from the Time Travel Academy will have something to say about that.

The rest of the Council is considerably less interesting, although it does include a fellow who received his most recent degree from Wayland Smithers Baptist University and now teaches at Bryan College in Dayton, Tennessee. I can’t speculate precisely what historical contributions he might offer to the series, but I expect he’ll be available for Huckabee’s next project, “Fucking Magnets: How Do They Work?”

An Excuse, Not An Argument

[ 45 ] May 12, 2011 |

My column in the Prospect this week discusses how the oral arguments at 4th Circuit earlier this week represented the pure shoddiness of the constitutional arguments being mounted against the ACA. The “inactivity/activity” distinction is not a serious argument but something cooked up to strike down a particular bill without accepting the logical implications, and it shows:

But the “activity/inactivity” distinction is not only conceptually problematic; it lacks any real legal basis. The text of the Constitution certainly does not make this distinction, nor has it been relevant to the many of the Supreme Court’s foundational precedents.


Why did legal challenges to the ACA come to rest on such a feeble argument? The answer is that political realities painted conservative litigators into a corner. It is possible to make a coherent and principled argument that the Affordable Care Act is unconstitutional. But this argument would have to look like those advanced by libertarian legal scholars like Randy Barnett and Richard Epstein, who have argued that the modern regulatory state is itself unconstitutional. If the commerce clause should be read as merely conferring on the government a limited power to regulate trade, then the Affordable Care Act is indeed unconstitutional.

The problems with advancing such a claim, however, are manifest. First, such arguments were conclusively rejected by the Supreme Court 70 years ago. Second, a constitutional vision reverting our regulatory law to the 1800s would have no political support. The “activity/inactivity” distinction is less a serious argument than an ad hoc, outcome-oriented attempt to strike down on particular law without threatening other popular federal programs.

If the Supreme Court were to strike down the ACA based on this argument, it would be the worst Supreme Court decision since Bush v. Gore. Alas, that decision should remind us that the Supreme Court could very well do it anyway.


[ 18 ] May 12, 2011 |

How can Democrats “play politics” with the inherently apolitical act of casting votes in the United States House of Representatives? For shame!

Although you can see where the Republicans are coming from. Sure, their plan to destroy Medicare and Medicaid to fund massive upper-class tax cuts is not only appalling on the merits but enormously unpopular. But they thought it would get fawning press coverage, and they were right! So all they needed was for the Democrats to completely lack any instinct for self-preservation. Not necessarily a bad bet, but thanks to Pelosi they’re losing it.

Bin Laden’s War Log

[ 36 ] May 12, 2011 |

AfPak Channel reports US counter-terrorism officials have revealed some of what they’ve found in OBL’s diary:

U.S. counterterrorism officials said yesterday that the Navy SEALs who killed al-Qaeda leader Osama bin Laden seized his “meticulous” handwritten diary along with other documents and electronic information, showing that bin Laden was in operational control of al-Qaeda, communicating with his lieutenants, offering suggestions to diversify targets, and calculating the number of Americans that would need to die before America would depart the Middle East (AP, Independent, CNN, AFP). Bin Laden also reportedly retained a singular focus on the West, a position that caused tension with other members of al-Qaeda (Post).

While authorities say the diary and other documents contain no “imminent” threat information, they do reportedly show that bin Laden was in direct communication with Al-Qaeda in the Arabian Peninsula (AQAP), and even offered criticism of an article published in the affiliate’s English-language magazine “Inspire” (ProPublica, AP).

I’m not trained as a trial lawyer, but it strikes me that this evidence – along with the dossier from New York – probably refutes one of the arguments I’ve heard against the feasibility of trying OBL rather than killing him: the claim that in a court of law it may have been impossible to persuasively link him to the events of 9/11. Thoughts?

Defining Tyranny Down

[ 55 ] May 12, 2011 |

Clearly, if the president could unilaterally appoint the rural utilities service administrator, we could no longer call ourselves a democracy.