Mark Steyn article

* A posting by Stuart Buck

This quote from a Steyn article seemed to get it just right:

Having served both the 42nd and 43rd Presidents, Clarke was supposed to be the most authoritative proponent to advance the Democrats' agreed timeline of the last decade - to whit, from January 1993 to January 2001, Bill Clinton focused like a laser on crafting a brilliant plan to destroy al-Qa'eda, but, alas, just as he had dotted every 'i', crossed every 't' and sent the intern to the photocopier, his eight years was up, so Bill gave it to the new guy as he was showing him the Oval Office - 'That carpet under the desk could use replacing. Oh, and here's my brilliant plan to destroy al-Qa'eda, which you guys really need to implement right away.'

The details of the brilliant plan need not concern us, which is just as well, as there aren't any. But the broader point, as The New York Times noted, is that 'there was at least no question about the Clinton administration's commitment to combat terrorism'.

Yessir, for eight years the Clinton administration was relentless in its commitment: no sooner did al-Qa'eda bomb the World Trade Center first time round, or blow up an American embassy, or a barracks, or a warship, or turn an entire nation into a terrorist training camp, than the Clinton team would redouble their determination to sit down and talk through the options for a couple more years. Then Bush took over and suddenly the superbly successful fight against terror all went to hell.

- Posted by Stuart Buck @ 8:19 AM

 
Some Observations

* A posting by Stuart Buck

Some observations about my experience:

• It's a weird thing to pick up the classical guitar or piano, and to be an expert with one hand (or at least passable on the piano) yet to be somewhat of a beginner with the other hand. I imagine it's good therapy, though.
  
  
• You don't want to rip out your IV while in your sleep. For one thing, blood gets everywhere. For another thing, they might have trouble finding another vein. It's not as if they are going to let you do a few curls with a fifty-pound weight in order to get the veins popping out.
  
  
• You might also want to shave your arms prior to going to the hospital. Shaved arms look silly, but better to look silly than to have a bunch of tape ripped out when it is attached to hair.
  
  
• An occupational therapist came by to see if I needed therapy. At 6 in the morning. I wanted to shake him, and say, "You're a doctor who is supposed to help people get better, right? Do you really think you get an accurate assessment when you wake people out of bed at 6 in the morning when they've hardly had any sleep to begin with? Huh?" But I was too groggy to issue this kind of statement.

- Posted by Stuart Buck @ 7:59 AM

 
Update

* A posting by Stuart Buck

I'm home now, barring any more "incidents." Almost a week in the hospital, and they still have no idea why I would have had a stroke. Several blood coagulation tests came back today -- all looks great. That leaves only two tests left as possible explanations. If I can't get an explanation, I'm going to seek a second opinion. (Someone I work for has offered to get me in with any neurologist at U. Chicago Med. School.)

Again, thanks to all who have written. I don't particularly feel like answering many dozens of emails right now, but they are indeed appreciated.
- Posted by Stuart Buck @ 6:24 PM

 
Thanks

* A posting by Stuart Buck

Thanks to everyone who wrote, by email or by blog, to wish me well. I can assure that your thoughts and prayers are much appreciated, even if I'm not able to thank everyone individually.

I am using my laptop from the hospital. Basically, I had two strokes of the cerebellum this weekend. No one knows why yet. They've done 7 or 8 different tests, including most recently a trans-esophageal echo-cardiogram and an angiogram of the neck. Everything looks great, which leaves only the blood coagulant tests (still waiting for those to come back from Kan. City) as an explanation for why someone who is almost 30 would come down with a stroke. (Anyone know any really obscure causes for stroke? Do email if you do.)

My brain is fully functional, although the strokes left me with lack of full coordination on my right side and mouth. That should all come back in time.

I'll keep you posted here. Thanks again for your best wishes and prayers.
- Posted by Stuart Buck @ 6:16 PM

 
Update

* A posting by Stuart Buck

Stuart is doing much better today. The tests he had yesterday (angiogram, heart scope) came back normal. We're still waiting on the blood coagulation tests to come back. He's taking blood thinners just in case. He's alert and his memory is all there. Stuart's right side is still a little weak. I'm going to bring him his laptop today, so the next posting you read will probably be authored by him.

Farah
- Posted by Stuart Buck @ 1:11 PM

 
Stuart Buck in the hospital

* A posting by Stuart Buck

Hello, this is Farah Buck, Stuart Buck's wife. I just wanted to let the readers of this blog know about Stuart's condition. Stuart is 29 yrs. old and has always been in perfect health. On Friday night he went to the hospital with what seemed to be meningitis symptoms. Later it was determined Stuart actually had a stroke. Something else similiar to a stroke happened Saturday night but they have not determined he had a second stroke.

Stuart is having several tests today that will examine his arteries and see if the cause of this problem can be found. His heart and neck ultrasounds have come back clean and his blood work and blood pressure are normal. There are a few other blood tests that were done on Saturday morning that will test Stuart's blood coagulation. If his blood is too thick and that is what caused the stroke he will be put on an oral blood thinner and sent home. He's taking a blood thinner (heparin) now and he hasn't had another episode. His head hurts, and he does not like laying around in a hospital bed one bit.

He wants me to bring his laptop to the hospital so he can catch up with work and email people. I've let his law firm know what's going on, so he doesn't have to do anything right now. When I left the hospital today he told me several times to bring his laptop. I'm not sure if I should or not. On the one hand, I'd like for him to feel normal and having his computer would help him feel less "out of touch". On the other hand, I don't think that doing work, or reading 1000 editorials and working on his blog is good for him at this point. His right arm and hand feel weak and he might be frustrated if he's not typing at the lightening speed he's used to.

Anyway, he and I appreciate your thoughts and prayers. Please pray that he will have patience with himself, that we'll find out the cause of this and that God will restore him completely. For those of you who don't know, Stuart and I have a 4 1/2 year old son, Ethan, and a 2 1/2 year old daughter, Eva. I'll be posting updates periodically.

Farah Buck
- Posted by Stuart Buck @ 12:44 PM

 
On Whether Women Should Change Their Last Names Upon Marriage

* A posting by Stuart Buck

In the debate over whether married women should change their last names, no one mentions the effects that our practices here will have on future would-be genealogists.

I've spent a good bit of time trying to research who my ancestors were. It can be quite difficult to do so, but at least you can count on people having followed the rule that women changed their last name to their husbands upon marriage. The rule could have been the other way around, with men changing their last names. What matters is that 1) families had the same name, and 2) the rule was predictable.

These days, though, things are not predictable. There are numerous possibilities:

• 1. The woman changes her last name;
  
• 2. The man changes his last name;
  
• 3. The man and woman hyphenate, in no particular order;
  
• 4. The man and woman turn one of the last names into a middle name, in no particular order;
  
• 5. The man and woman each keep their own name;
  
• 6. The man and woman create a brand new last name.

Rules 1 and 2 are by far the best; and neither of them is better than the other. (Rule 1 is preferable only because it's more predictable; that's how things have always been done. If society could en masse switch to Rule 2, that would be equivalent to future genealogists.)

Rules 3 and 4 are bad, because any couple who combines last names makes it a virtual certainty that their descendants will follow a different rule when they get married someday. (One can't have a string of 4 or 8 last names, after all.) Rules 3 and 4 therefore fail to be predictable. Rule 5 is fine for the couple themselves, but it creates difficulties as to what the children will be called (again, unpredictability rears its head), and it makes it more difficult for future genealogists to figure out whether these two people had anything to do with each other. Rule 6 at least creates a family with the same last name, but it creates a sharp, unpredictable, and possibly unbridgeable break with all prior generations of both families.
- Posted by Stuart Buck @ 6:51 AM

 

* A posting by Stuart Buck

In the recent flap over Intelligent Design theory, Harvard Law student Lawrence VanDyke said this:

If you a priori pick a naturalistic methodology (which is a philosophical choice, not a scientific one), then of course you will get "naturalistic implications" - i.e. results that only fit within a naturalistic paradigm - all others were excluded to begin with. So he is completely wrong that physics, chemistry, and evolution don't have an a priori commitment to naturalistic methodology - of course they do (no offense, but this is a grievous error for a philo PhD to make - Leiter needs to brush up on his philosophy of science). In fact, John Rennie, editor-in-chief of Scientific American, said as much: "A central tenet of modern science is methodological naturalism . . . "

Brian Leiter disagreed:

The difficulty, however, is that science did not "a priori pick a naturalistic methodology"; they adopted, based on evidence and experience (i.e., a posteriori), the methods that worked: it turns out that if you make predictions, test the predictions against experience, refine the hypotheses on which the predictions are based, test them again, and so on, you figure out how to predict and control the world around you. This is what the Scientific Revolution, the Enlightenment, and a few other ancient events apparently not covered in Mr. VanDyke's education, were about: the a posteriori discovery of the most effective ways to predict and control the world.

Leiter's point may be true, but it is also irrelevant. This is because VanDyke and Leiter are using the term "a priori" in two very different senses.

VanDyke meant the term "a priori" to mean that scientists today tend to approach their work having already decided to exclude any non-naturalistic causes or explanations. That's why the most common objection to Intelligent Design Theory is something along the lines of, "ID is not Science. Science is only concerned with finding naturalistic causes and explanations for naturalistic phenomena. Supernatural explanations simply can't be part of science, because they aren't falsifiable. Period." (Citations are unnecessary; anyone familiar with the ID controversy has already seen countless variations on this sort of argument.)

But when Leiter purports to disagree with the above, he is using the term "a priori" in a Kantian sense, where "a priori" means some sort of transcendental or logical truth that is ascertained without any reference to any experience. That's why Leiter refers to the historical origins of methodological naturalism, which, as he points out, arose out of successful experiences seeking naturalistic causes for things.

But VanDyke's point still holds true: Even if they came by this belief due to experience, scientists today generally determine prior to investigating any new phenomena or event that there simply must be some naturalistic cause. One way of detecting the a priori nature of the commitment to naturalism is to conduct a thought experiment: Suppose that the history of life on earth is exactly as neo-Darwinists say, but with one exception: About 200,000 years ago, God specially created the first humanoids that were capable of abstract thought (call them mitochondrial Eve and Adam). Suppose, for the sake of argument, that this is really true. God really did it. And as a result, any attempt to find a naturalistic link to other humanoid ancestors will fail. But even if this were really true, there would still be some scientists who would rule it out a priori by insisting that an explanation that relied on God could not be "science." That's is what VanDyke meant by an "a priori" commitment: Stating that a particular type of explanation is ruled out even if it might be true.

In short, VanDyke was using "a priori" as did Harvard biologist Richard Lewontin in a 1997 article from the New York Review of Books¹:

We take the side of science despite the patent absurdity of some of its constructs, despite its failure to fulfil many of its extravagant promises, despite the tolerance of the scientific community for unsubstantiated just-so stories because we have a prior commitment to materialism.

It is not that the methods and institutions of science somehow compel us to accept a material explanation of the phenomenal world but, on the contrary, that we are forced by our a priori adherence to material causes to create an apparatus of investigation and a set of concepts that produce material explanations, no matter how counter-intuitive, no matter how mystifying to the uninitiated. Moreover, that materialism is absolute, for we cannot allow a divine foot in the door.

¹Leiter didn't mention this quote, even though it appears in VanDyke's book review. Instead, Leiter inaccurately implied that VanDyke had cited nothing but "one line from the polemical Richard Dawkins."
- Posted by Stuart Buck @ 6:51 AM

 
Supreme Court information

* A posting by Stuart Buck

Via Howard Bashman, an interesting article about the testimony of Justices Thomas and Kennedy before a congressional budget committee: :

A cordial hearing about the Supreme Court budget grew testy when lawmakers pointed to the vast amount of information they provide about Congress' doings and said the nation's highest court could and should do the same.

Justice Anthony M. Kennedy protested that the court is making more information about cases available through its Web site, but Rep. Frank Wolf, R-Va., seemed unimpressed.

'I think the court is a little bit aloof,' he said.

Kennedy and Justice Clarence Thomas seemed taken aback, and hurriedly listed ways the court tries to tell the public what it is up to.
The court makes available a transcript of its oral arguments about a week after it hears oral arguments in a case, Kennedy noted.

Congress does that overnight, Wolf replied.

Some of the legal briefs for the court's cases are available online, Kennedy said.

Not everyone has a computer, Wolf answered. He sends his constituents a letter detailing his votes.

Well, that settles it, then. Clearly the Supreme Court has been negligent in failing to send out paper copies of briefs and opinions to all of its constituents (which would have to be all Americans). There are about 8,000 cert. petitions filed per year (with at least two briefs apiece), 80 or so cases on the merits (I'd guess an average of 5 briefs apiece, including the petitioner, respondent, and any amici), plus the opinions themselves, all of which should be mailed to 280 million Americans. That would amount to a mere 4.6 trillion mailings per year. Why, Justice Stevens' clerks could handle that in their spare time.
- Posted by Stuart Buck @ 6:50 AM

 
Background music

* A posting by Stuart Buck

Turns out that Sasha Volokh works while listening to the Tallis Scholars' 2-CD set titled The Best of the Renaissance. Coincidently, that is the exact same 2-CD set that I bought a few weeks ago, and have since enjoyed listening to while working. It features excellent renditions of works by Josquin and Palestrina (as one would expect), as well as a few works by lesser composers, such as Taverner and the famously chromatic Gesualdo.
- Posted by Stuart Buck @ 12:03 PM

 
Seventh Circuit Campaign Finance Decision

* A posting by Stuart Buck

Via Howard Bashman, I see that the Seventh Circuit has issued a decision upholding an Indiana campaign finance law forbidding anonymous advertisements. The opinion is by Posner. Easterbrook filed an opinion that isn't a concurrence, yet isn't a dissent either. It is simply labeled: "Easterbrook, Circuit Judge, dubitante." I have to admit I've never seen that particular label before. What Easterbrook does is lay out his doubts about the Supreme Court's campaign finance jurisprudence, without actually dissenting.

And does he ever have some doubts. Here are some notable quotes (be sure to catch the last line):

Four decisions of the Supreme Court hold or strongly imply that the ability to speak anonymously—and thus with less concern for repercussions— is part of the “freedom of speech” protected by the first amendment against governmental interference. Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 199-200 (1999); Watchtower Bible & Tract Society of New York, Inc. v. Stratton, 536 U.S. 150, 166-67 (2002).
* * *
Although the scope of protected speech has been held to differ across subject matter, the ability to denounce public officials by name and call for their ouster is the core of the Constitution’s protection.
* * *
Today the court holds that a state may require persons engaged in core political speech to identify themselves so that the officeholders and their allies can pinpoint their critics. How can this be?

According to my colleagues, the answer lies in the fact that McConnell v. Federal Election Commission, 124 S. Ct. 619, 689-94 (2003), rejected a constitutional challenge to §201 of the Bipartisan Campaign Reform Act of 2002, which amended §304 of the Federal Election Campaign Act, 2 U.S.C. §434. Section 304 as amended requires any person who makes disbursements exceeding $10,000 in any year for speech in federal campaigns, or who donates $1,000 or more to another person or group engaged in advocacy, to disclose his identity to the Federal Election Commission. Indiana’s law differs—it starts from a lower threshold (100 sheets of paper) and requires disclosure to the public in the electioneering literature rather than to an agency . . . —but once it is settled that speakers must reveal their identities directly to the political establishment, five Justices may think that everything else is mere detail.

Still, the Justices’ failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply.
* * *
The Supreme Court wrote that §304 is valid because it is (in the view of five Justices) a wise balance among competing interests. Yet the function of the first amendment is to put the regulation of speech off limits to government even if regulation is deemed wise. . . . For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn. And when, as in McConnell, the judgment is supported by a one-vote margin, any Justice’s conclusion that a particular extension is unwise will reverse the constitutional outcome. How can legislators or the judges of other courts determine what is apt to tip the balance?
* * *
Often the Supreme Court says that even a small fee or tax, or a short delay in obtaining a free license (as in Watchtower), is an unacceptable burden on speech. . . . Yet in McConnell the Court was sanguine about the delays, and non-trivial legal expenses, entailed in complying with complex rules for campaign speech. These outlays come on top of the costs that must be borne by persons who back the wrong horse and incur the enmity of elected officials—for the winners now are entitled to learn all of their vocal opponents’ identities. Maybe these effects can be justified with respect to electioneering at the national level by deep-pocket interest groups—though I think that the Justices have been too ready to equate political support to bribery, see Ronald A. Cass, Money, Power, and Politics: Governance Models and Campaign Finance Regulation, 6 Sup. Ct. Econ. Rev. 1 (1998)—but for local elections the equation is impossible to sustain.
* * *
Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law.

- Posted by Stuart Buck @ 6:53 AM

 
Fraud

* A posting by Stuart Buck

Brian Leiter has a lengthy attack on a book review that appeared in the Harvard Law Review. A quote:

The author of this incompetent book note, according to this site, is one Lawrence VanDyke, a student editor of the Review. Mr. VanDyke may yet have a fine career as a lawyer, but I trust he has no intention of entering law teaching: scholarly fraud is, I fear, an inauspicious beginning for an aspiring law teacher.

I don't want to get into the merits of Leiter's accusation. Instead, I wish to discuss his implication that someone who commits "fraud" may have a "fine career as a lawyer" but would be sunk in academia.

To be blunt, I see no evidence for this. Lawyers and law professors are drawn from the same class of people: People who went to law school. It would be surprising if those who happened to get good grades and who have an affinity for writing lengthy publications would thereby acquire a more virtuous and honorable character. If professors are more honest than lawyers, it could only be because 1) there is less incentive to be dishonest in legal scholarship, or 2) it is easier for scholarly dishonesty to be uncovered, or 3) the penalties for scholarly dishonesty are higher. I don't think any of those conditions are likely to be true.

Step back for a moment, though, and consider how similar are the types of dishonesty that lawyers and law professors might commit: Misstating an opponent's argument. Misstating the holding of a case. A lawyer might put forward a skewed version of the record in a case, while a law professor might put forward a skewed version of the history of a statute or constitutional provision. Failing to bring hurtful precedents to the judge's (or the law review readership's) attention. Overstating an argument. And for lawyers, trying to hide harmful documents from the other side.

Do lawyers have a greater incentive to be dishonest? I'm skeptical. The lawyer is motivated by a desire to win a particular case. But the law professor might, in many instances, be motivated by a desire for personal influence over the overall state of the law. A lawyer might think that a case can be won if only he or she can fool the judge into accepting a skewed version of the record and the relevant precedents. But a law professor might feel that a given law review article could persuade readers and change the state of the law if only he or she can fool the readership (which may include law clerks or judges) into accepting a skewed version of history and the relevant precedents. I don't know that one motivation is more likely to lead to dishonesty than the other.

Can lawyers get away with dishonesty more easily than academics? I don't think so. In fact, the opposite is more likely to be true. When a lawyer is dishonest, there is an enormous risk that the other side will find out, because they are dedicated to undermining whatever you do. But if you write a law review article, it is highly unlikely that there will be some implacable opponent out there who will spend all of his working hours trying to undermine everything you have written. Most law review articles disappear into the void, attracting only a few scattered citations, if any at all. (According to one recent study, 26% of economics articles from 1974 to 1996 were never cited even once.)

The Michael Bellesiles case is instructive. Here is a professor whose work was riddled with inaccuracies and misrepresentations. Even so, he managed to win awards and acclaim from other scholars. What brought him down was the fact that his work was on a highly controversial subject -- guns. What's more, he had argued for a counter-intuitive and implausible conclusion, i.e., that guns were fairly rare in early America. Thus, his work attracted the attention of opponents who exposed his misrepresentations (such as Clayton Cramer and James Lindgren and Melissa Seckora) .

What's interesting is this: Bellesiles's dishonesty was exposed not through the peer-review process, but only because his work stimulated opponents to take the enormous trouble of checking his citations and sources. I'd bet that this happens relatively rarely in academia. But it happens in every case that a lawyer handles. Every time you litigate a case, there is an opponent who is hell-bent on demolishing everything that you say. I'd guess that it is therefore much harder to get away with dishonesty in litigation than it is in academia.

Are the penalties for dishonesty higher in academia? I don't really think so. If a lawyer is dishonest in conducting a case, the other side will find out, and will likely complain to the judge in some fashion. This can lead to sanctions. Worse, it can lead to the judge ruling against your side, because he or she no longer trusts anything you say. Even worse for the lawyer in question, it can lead to grievances filed with the state bar, and even to disbarment in extreme cases. Thus, in my personal experience, there are many times I have heard other lawyers say something like this: "If you come across a document that harms us, be sure to flag it and make sure we produce it to the other side. It's going to come out eventually anyway, and it will be a million times worse if there is any appearance that we were trying to hide it."

The situation is different in academia. Even when you partake in a scholarly debate with opponents who are trying to undermine your position, you still don't have to worry about getting sanctioned by a judge, or about literally losing the debate due to having lost the judge's trust. There is no judge in the first place, no final authority. At the end of a scholarly debate, what usually happens is that everyone walks away with minimal consequences.

For example, Richard Posner (acting as a scholar) and Ronald Dworkin have publicly sparred on many occasions, over Posner's book on the Clinton impeachment (see here), and over Posner's book The Problematics of Moral and Legal Theory. Both Posner and Dworkin have accused the other of misrepresenting both the state of the law and the other's position. (See this Dworkin essay, for example.) But even if one or both of them made misrepresentations, they didn't suffer any consequences for it, except perhaps reputational harm in the eyes of particularly attentive readers.

* * *

I'm certainly not implying that there is any substantial amount of dishonesty in legal scholarship. Rather, I'm trying to emphasize that practicing lawyers probably just as honest overall as are professors, even if only due to a higher risk of penalties.

- Posted by Stuart Buck @ 11:04 PM

 
Academia vs. Manual Labor

* A posting by Stuart Buck

I was bemused by this article in the Chronicle:

In these pages, I have occasionally seen other articles by faculty members who find the academic life too stressful -- a point of view I find absurd.

As a college student, I worked five days a week in a factory in the summers and delivered parcels for the Postal Service at Christmas. That work was stressful. I also spent a full day down a coal mine, being choked by dust and trying to avoid having my legs gashed by the speeding conveyer belts. That was truly hell. Compared to lives in those jobs, academe is a good place to work.
* * *
I am puzzled, therefore, by those who find the academic life to be so hard and so stressful. Perhaps they would have benefited from spending eight hours down a coal mine in their adolescence?

The same might apply to lawyers. I can't say that I've ever been in a coal mine, but I did spend one day (yes, one day) doing manual labor one summer while I was home from college. It was a one-day assignment that I got through a temp agency. It involved going to a dusty, dank warehouse, and helping another man unload an entire semi-truck full of giant packages of fiberglass insulation. When I say "giant," I mean too large for either of us to lift by ourselves -- probably 75 to 100 pounds, and nothing to grip with. We had to roll the packages off the truck, and then stack them 4 high (i.e., to a level of about 8 or 9 feet) in the warehouse. All the packages were covered in fiberglass dust, which ended up covering one's entire body and itched like crazy. Plus, it was probably about 110 degrees in the warehouse, which was unventilated.

It was the most miserable day of work that I've ever had to do. Compared to that one day, being a lawyer is almost like a cakewalk.
- Posted by Stuart Buck @ 11:52 PM