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Airpower Over Iraq? We’ll Never Be Over Iraq

[ 14 ] August 8, 2014 |

Yesterday, the Air Force dropped 8000 MREs and 5300 gallons of water to Yazidi refugees on Mt. Sinjar.  That’s enough water for roughly 8000 refugees for one day; the MREs can be stretched farther.  USN F/A-18s escorted the mission.  If the US is serious about maintaining the Yazidi, it will need to either scale up the airlift by a factor of five, or use airstrikes to open a corridor for supply from Kurdish held territory.

On that point, F/A-18s struck ISIL artillery near Erbil this morning.  No indication yet of how widely the administration intends to bomb, or of the operational purposes it hopes to achieve.

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Folks, Let’s Make America Great Again

[ 35 ] August 8, 2014 |


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Diaspora Education

[ 67 ] August 8, 2014 |

An interesting short essay by Bonnie Honig on how Jewish education in the U.S. erases the Palestinian experience, going far to create the divide in the American Jewish community today between those who are avowed supporters of Israeli polices toward the Muslims around them and those who are outraged dissenters against the lies they have been told.

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Walsh Out

[ 64 ] August 7, 2014 |

In these times of phony plagiarism charges, it’s worth remembering that some are actually real, and might even affect control of the United States Senate.

As Drezner says, the even bigger scandal in this case was that a 14-page-paper that would have been lucky to get a gentleman’s C+ as a paper in an intermediate undergraduate class was good enough for an MA thesis end of MA project.

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In the Killing of Renisha McBride

[ 78 ] August 7, 2014 |

Theodore Wafer found guilty of 2nd degree murder.

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The Yazidi

[ 112 ] August 7, 2014 |

I have a short piece up at the Washington Post discussing the difficulties of a relief operation for the Yazidi:

The plight of Yazidi refugees in the Sinjar mountains, hemmed in by Islamic State forces and relying on dwindling supplies of food and water, has brought renewed international attention to the war in Iraq. Some have suggested that the United States or United Nations facilitate airdrops to the starving, dehydrated refugees.

But this is more complicated than it seems.

In related news:

President Obama is considering airstrikes or airdrops of food and medicine to address a humanitarian crisis among as many as 40,000 religious minorities in Iraq who have been dying of heat and thirst on a mountaintop after death threats from the Islamic State in Iraq and Syria, administration officials said on Thursday.

The president, in meetings with his national security team at the White House on Thursday morning, has been weighing a series of options ranging from dropping humanitarian supplies on Mount Sinjar to military strikes on the fighters from ISIS now at the base of the mountain, a senior administration official said.

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Mining: A Reponsible Industry. Unless You are a Human or Other Creature

[ 10 ] August 7, 2014 |

Oh mining, will you ever even try to be a responsible citizen of the world?

Hundreds of people in British Columbia can’t use their water after more than a billion gallons of mining waste spilled into rivers and creeks in the province’s Cariboo region.

A breach in a tailings pond from the open-pit Mount Polley copper and gold mine sent five million cubic meters (1.3 billion gallons) of slurry gushing into Hazeltine Creek in B.C. That’s the equivalent of 2,000 Olympic swimming pools of waste, the CBC reports. Tailings ponds from mineral mines store a mix of water, chemicals and ground-up minerals left over from mining operations.

The flow of the mining waste, which can contain things like arsenic, mercury, and sulfur, uprooted trees on its way to the creek and forced a water ban for about 300 people who live in the region. That number could grow, as authorities determine just how far the waste has traveled. The cause of the breach is still unknown.

The answer is, of course, no.

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LGM Announces the First Annual Bush v. Gore Award For Outstanding Achievement in the Field of Bad Faith

[ 90 ] August 7, 2014 |

Jonathan Adler wins in a landslide despite the tough competition.

To put this another way, let’s consider exactly why the Halbig troofers think the court’s handiwork is too trivial to merit review. Essentially, the argument is that en banc rehearings are rare. White, in a passage quoted by Adler:

But if the D.C. Circuit rehears the case en banc, it would be a sharp break from history. The D.C. Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

The obvious responses being:

  • So en banc rehearing are rare.  What’s your point? It’s also rare for an appellate panel to find that a widely-discussed law passed less than 5 years unambiguously establishes an absurd outcome nobody on either side of the ideological spectrum identified at the time with the consequence that millions of people will be stripped of their health insurance. Nothing in the text of the Federal Rules of Appellate Procedure suggests that the “exceptional importance” standard can consider only academic or theoretical importance.
  • Do you know what’s also extremely rare? The Supreme Court granting a writ of certiorari.  So I’m sure that if the D.C. Circuit decides to hear the case en banc and vacates Halbig, White and Adler will agree that this “straightforward statutory interpretation case” is too trivial for the Supremes to bother with, particularly since there wouldn’t be a circuit split to resolve.   Wait, stop laughing.

It’s tempting to say that all this nonsense shows that Adler et al see law as a game, divorced from any human consequences.  But I think it’s even worse that that.  As Paul has argued about Scalia and the death penalty, it’s more that they seem to revel in the horrible consequences; being willing to inflict avoidable suffering and death on people  shows a real commitment to the rule of law.  That the arguments presented by these would-be humble legal technicians sometimes reveal an almost comic degree of bad faith just adds to the effect. I mean, anyone can create bad consequences by applying a real legal principle, but making one up that you’ll abandon next week when it’s ceased to serve its purpose shows real commitment to whichever Solemn Legal Principle you’re advocating at the time.

…and, yes, as Hogan notes, here is the relevant section of Federal Rules of Appellate Procedure in full:

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

So the relevant rules explicitly state that a circuit split resulting from a panel decision qualifies as an issue of “exceptional importance,” while also of course not foreclosing the consideration of policy impact when determining whether the standard is met either. Again, it’s bad faith all the way down.

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[ 7 ] August 7, 2014 |

My latest at the Diplomat investigates the reputational issues associated with China’s oil rig in the South China Sea:

Who blinked? Who cares?

China’s decision to remove an oil rig from waters disputed by Vietnam has stirred a considerable degree of attention, almost as much as China’s decision to deploy the oil rig in the first place. Should the move be understood as indicative of a Chinese lack of nerve?  Did the policy to intimidate Vietnam fail?  Did Vietnamese legal and military efforts force China to “blink”  and thus rethink its maritime resource strategy in the region?

As I’ve argued many times in this space and others , policymakers and analysts waste an inordinate amount of time thinking about the reputational costs of their actions. A reputation for resolve supposedly contributes to credibility, which impresses friends and deters potential foes from doing things that we don’t like.


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Thorne Auchter

[ 15 ] August 7, 2014 |

When we think back to the Reagan Administration, there are so many loathsome characters. Oliver North. John Poindexter. James Watt. Jeane Kirkpatrick. Ed Meese. We could go on and on. But as happens in any modern Republican administration, there are all sorts of really powerful appointees who go totally under the radar. Because of my logging book, I became acquainted with one Thorne Auchter, a Florida construction contractor who Reagan named as head of OSHA. Auchter completely turned OSHA away from the semi-crusading agency it was during the Carter years under the leadership of Eula Bingham and moved it toward an employer services agency that it so often remains today. Part of the process was Auchter killing a bunch of OSHA videos the agency made to help workers fight for safety and health on the job. But you can see them here and they are pretty great.

Imagine, a government that sought to help workers rather than plutocrats. I know it must be dream.

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Looking back at ITLSS

[ 47 ] August 7, 2014 |

ITLSS started publishing three years ago today. The blog featured roughly daily posts (500 in all) for nearly 19 months, through February of 2013. During that time it received about three million page views, and it generated nearly 50,000 comments. On the eve of another academic year, this post looks back on the project from the perspective of what’s changed and what hasn’t in the law school world since the summer of 2011.

What’s changed:

The central theme of the blog — that there’s a genuine crisis in legal academia, because law schools are turning out far too many graduates and far too high of a cost — has gone from a fringe position in the academy, to a widely accepted view within it, and something like the conventional wisdom outside it.

Law school applications and enrollment have both plunged. The 2014 cycle featured about 55,000 applicants, down from 88,000 in 2010. Despite moderate to severe cuts in admissions standards at almost all law schools other than Harvard, Yale, and Stanford, the 2014 first year class will include somewhere between 37,000 and 38,000 students, down from 52,500 in 2010.

After decades of non-stop growth, average effective tuition (sticker tuition minus discounts) has at least flattened out and possibly even declined slightly over the last two to three years. This is a product of the combination of schools continuing to raise their sticker rates at faster than inflation, but offering deeper discounts to a larger percentage of their admits. The net effect of this has been to keep average tuition from rising in real terms, although of course this pattern exacerbates the reverse Robin Hood structure of contemporary legal education, in which students with lower entrance numbers (and, crucially, lower SES backgrounds) subsidize the attendance of their better-credentialed, richer, and better-connected classmates.

What hasn’t changed:

The legal hiring market remains weak. Only a bit more than half of all ABA law school graduates are getting real legal jobs (full-time, long-term, bar admission required), and this percentage drops to less than half at many schools. Only around 15% of graduates get jobs that pay salaries which make taking on $150,000 in educational debt (around the average for the 85% of graduates who borrow, once we include accrued interest and undergraduate debt) appear to be a good investment, at least from a short-term perspective.

The long-term economic prospects of current law graduates remain very unclear, for many reasons. What’s clear is that the high salaries paid to the “lucky” minority who initially get jobs with big law firms can be somewhat illusory (a 2013 Stanford law grad told me yesterday that several of his classmates who started in big law a year ago have already left, whether voluntarily or not), and that extrapolating the lifetime earnings of people who graduated from law school in 1974 or 1984 or even 1999 to people who graduated in 2014 is a form of methodological question-begging, if it’s presented as doing anything more than presenting one piece of mildly suggestive but problematic evidence in regard to the answer to the question of what is going to happen to current law graduates in the long run.

The fundamental economic structure of legal education — in which most of the operating revenue for most law schools comes from federal educational loans subject to essentially no actuarial controls — remains in place. Transparency in regard to employment outcomes — which pretty much didn’t exist three years ago — has been in large part achieved, and it has accomplished quite a bit by itself, as evidenced by the plunge in application and enrollment numbers. But while the situation is better, it’s still the case that far too many people are paying far too much to go to law school. (My back of the envelope calculation is that national first year classes ought to be around 25,000 matrics, and that effective tuition ought to be around $10,000 per year, if we want legal education to be a good investment for a large majority of prospective law students going forward).

Looking back with the benefit of both three years’ additional perspective, and the changes that have taken place over that time, I wish this blog had spent more time connecting the crisis in legal education to the crisis which is slowly but surely enveloping higher education in America in general. That latter crisis is a product of deep economic and cultural changes, which have left an entire generation of young Americans over-educated and under-employed (I explore the ways in which legal education is something of a proverbial canary in a coal mine for these much broader trends in a forthcoming article in the September issue of the Atlantic.)

But hindsight is notoriously more accurate than foresight. This blog played its part in helping some people — not least its primary author — understand the troubled world of contemporary legal education. The thing now is to change it.

(Cross-posted at ITLSS)

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Undergarments in History

[ 20 ] August 7, 2014 |

I’m a bit skeptical of crediting World War I as the primary reason for the decline of the corset and rise of the bra. Usually things like this have multifaceted causes and I highly doubt that without World War I, flappers and Depression-era women would be wearing corsets. That said, this is an interesting discussion of the switch from the corset to the bra and the development of that garment over the decades.

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