Thoughts from
San Diego on Law, Politics, and Culture

 
Tenebrae
By Maimon Schwarzschild

Having enjoyed the Passover seders this week, I stole off last night to hear Tenebrae, the Holy Thursday rite. It was sung in the High Renaissance polyphony of Tomas Luis de Victoria -- by the Tomas Luis de Victoria Choir of San Diego, no less. This was the authentic Tridentine Latin liturgy, making an improbable appearance at a neighbourhood Catholic Church in San Diego. The intricate, sonorous polyphonic music is gorgeous even when the singing is a little shaky. And Tenebrae is one of the great poetic rituals of the Roman Catholic year: "Quomodo sedet sola civitas..." ("How lonely sits the bereaved city...")

The theme of Tenebrae is a kind of calm, reflective lamentation. The altar is draped in mournful purple, and a candle is extinguished at the end of each psalm or strophe, till there is none left lit. ("Tenebrae" means dusk, nightfall...)

The "mournful city", of course, is Jerusalem.

It is a reminder, not that any reminder is really needed, of Christianity's intimate ties to Judaism. In many languages, even the word for Easter refers to Passover and the paschal sacrifice. (Paques in French, Pascua in Spanish...) Intimacy doesn't mean love, of course. In Christian Europe, Easter was traditionally the season for blood libel accusations, pogroms, and massacres of the local Jews.

It isn't (or wasn't) just that "the Jews killed Christ", though that never helped. (Would Mel Gibson please call his office.) But more than that, Christian allusions to Jerusalem and the people of Israel -- Tenebrae is full of them -- represent a claim that the Church is the New Israel: that God has elected the Church, by virtue of a New Covenant, as the successor to the people of Israel in God's relationship to humanity. And unfortunately, the persistence of the "old" people of Israel, their continuing to exist, unconverted to Christianity, seems (or seemed) to many Christians to mock this claim.

The Economist this week has a pretty good article on today's relationship between Judaism and Christianity.

Passover, and Holy Week, are a reminder that life would be a lot poorer without memory, very much including collective memory. And religion is certainly about memory. (Even if that's not the only thing it's about.) The seder is an exercise in memory; so is Tenebrae. Collective amnesia is a scary thought. It is what Europeans often accuse Americans of, and there is something to the accusation -- though surely not as much as defensive and insecure Euros may want to believe. But collective memory can be scary too: keeping bitter old hatreds and divisions alive.

So I had mixed feelings about the nearly empty church at Tenebrae last night. The Tomas Luis de Victoria Choir of San Diego poured their hearts into the wonderful music. It was a big church. But there weren't more than twenty people in the pews. Almost all had grey hair. And at least one, of course, was an emissary from "old" Israel. (At most one, too, I would guess.) It was sad, of course. But this Jew, at least, feels a little safer, too, in a country where the authentic Tenebrae leaves the pews all but empty.

posted by maimon at 4/9/2004 02:56:14 AM

 
Lenny Bruce Seasonal
By Maimon Schwarzschild

Then there was Lenny Bruce's famous routine about the Jews and the death of Jesus. "I was down in the basement, going through some really old stuff, and I found this really, really old crumpled up piece of parchment. It said, 'We did it'. Signed, Morty."

Self lacerating, of course. Lenny Bruce, as I say.

For a more earnest take -- sanitizing the Lenny Bruce routine for his own purposes -- here is a recent Nat Hentoff column. I don't know enough of the facts about the Paul Weyrich - Evan Gahr story that Hentoff writes about to have an opinion about it. But I have a lot of respect for Nat Hentoff. And it doesn't sound like a happy story.

posted by maimon at 4/9/2004 02:11:59 AM

 
Iraq
By Mike Rappaport

The recent fighting in Iraq is obviously extremely important. While it has already led to tremendous hand-wringing by critics of the war, it is not necessarily a sign either of problems in the prospects for Iraqi nation-building or that the US has done anything wrong. It may simply be an expected and necessary part of the process of establishing a constitutional regime.

First, the uprising does not imply the US has been doing anything wrong. Sure, the US could have had more troops and could have been more aggressive in rooting out these fanatics, but that would have had serious costs. In particular, if the US were too heavy-handed, that might have led to additional opposition to it. Part of what we are trying to do is to create an environment of freedom, and arresting militia members who were then not currently attacking the US, was not necessarily the best way of creating that environment.

Second, this uprising may give the US an opportunity to defeat those within Iraq who oppose the establishment of a constitutional order. So long as the United States stands firm, and certainly Secretary Rumsfeld has strongly indicated that we will, the US can win this fight, kill these opponents of democracy, and in doing so more securely establish the grounding for the next step towards a constitutional order.

The worst possible response would be to withdraw from Iraq. While some argue in favor of this -- such as Senator Robert Byrd of West Virginia -- it is hard to avoid the conclusion that they are either "knaves or fools." Not only would withdrawing weaken the US on the world stage, inviting terrorist attacks against us all over the world, but it could have disastrous consequences in the Middle East. It could allow Iran to establish and control a radical Islamic state in Iraq, or to the Iraqi Kurds joining with the Turkish Kurds to destabilize Turkey.

For similar views to those expressed here, see Steve Don Beste.
posted by MichaelTom at 4/8/2004 11:44:57 PM

 
In bad taste, but funny
By Mike Rappaport

Take a look at these two gruesome ads, if you have the stomach for it. Not being an animal lover myself, I thought they were funny, although the second did cross the line.
posted by MichaelTom at 4/8/2004 08:52:37 PM

 
Debka on Second Iraq War
By Tom Smith

Debka on the complex situation in Iraq. If the Sadr-ites make good on their threat to burn Japanese hostages alive, well, I guess that just goes to show what savages we Americans are.

I realize debka.com has an axe to grind with Iran. Israel probably want the US to come down hard on Iran. However, that doesn't mean we should not do so. The idea that Iran is behind this ugly uprising, and is buying time so it can get its nukes on line, is troubling enough to make you want to dust off the emergency supplies in your garage. We can't let the Iranians get nukes. It's that simple. And we can't be driven from Iraq by these fanatics. Stay tuned.
posted by thomas at 4/8/2004 08:54:53 AM

 
Height
by Mike Rappaport

Interesting post at Marginal Revolution on height. Here is an excerpt:

For two centuries, the American man stood tall in the world. Literally. But today the average Dutch man is six foot one and the average American man is much shorter. Even as little as fifty years ago, American men were considerably taller than Dutch or other European men but since the mid 1950s the Northern Europeans have shot up while Americans have grown wider but not taller. No, it's not a composition effect due to immigration. Native born, English-speaking American men are only five feet nine and a half and this has not changed much in more than a century. Why then the difference?

Take a look at the entire post, but unfortunately it does not have the answer.

While I am willing to consider believing that the average Dutch man is six foot one, I refuse to believe that the average French man is more than half of the size of the average American. That would make him no bigger than 35 inches -- almost three feet. Sounds about right to me.
posted by Michael at 4/7/2004 10:52:00 PM

 
The Kerry Messages
By Tom Smith

A not particularly reliable source emailed me this exchange of instant messages between, apparently, John Kerry and a person identified only as "Father Bob," who seems to be a Catholic priest sympathetic to the Kerry campaign. I cannot attest to the authenticity of the what follows . . .

JK: So is it Paul John or John Paul?
FB: John-Paul
JK: What's with the two names??
FB: It's the names of the last two Popes, well, second to last two popes put together . . .
JK: But I thought that was Pius, you know, the CCCIII or XXX, the 23rd; trouble with those roman numerals ;-)
FB: It was JOHN XXIII, then Paul VI, then John Paul I, THEN John Paul II
JK: There were TWO John-Pauls???
FB: You know, the first one died after a few weeks
JK: Geez! Was he poisoned or something?
FB: Don't go there, John. Now what do you know about catholic issues?
JK: I know everything. Let's see, abortion is bad, but birth control is OK . . .
FB: John, artificial birth control is forbidden by the Church
JK: No! You're kidding right? What do you mean artificial?
FB: The pill, diaphrams, condoms
JK: You can't even use a bag?
FB: John, don't say "bag," it makes you sound too familiar
JK: OK, OK, condom. Holy shit.
FB: You know about divorce?
JK: Sure, it used to be forbidden, but now it's OK in many cases, I think
FB: No, John. Church doctrine still does not permit divorce
JK: But Teddy said
FB: Just forget anything Teddy has told you about it, OK?
JK: But he had I don't know ten kids or something and he still
FB: Just forget him. He was a special case. Divorce is out
JK: Even if you have a pre-nup?
FB: Pre-nups aren't really very Catholic, John. I wouldn't mention your pre-nup if you can help it. Maybe you should tell THK to do the same.
JK: Maybe you should tell her.
FB: OK, fine. Now you tell me what you think of when I say, let's see, "culture of life"
JK: Wasn't that a gay rock group?
FB: That was Culture Club. This is "culture of life."
JK: Oh I know, George Bush, he says that, right?
FB: He got it from John-Paul
JK: The first or the second?
FB: The second. The first John Paul didn't have time to say anything
JK: OK. So what does it mean?
FB: It means anti-abortion, anti-euthanasia, anti-war, anti-violence
JK: What does that have to do with life?
FB: You know, the fetus is alive, the old person is alive
JK: I don't follow you
FB: It's wrong to kill, and there's too much disrespect for life in modern culture
JK: OK, fine. That reminds me. Did you know I fought in Vietnam?
FB: I know. Maybe you could say something like it taught you the value of life
JK: I don't know about saying 'life' it sounds a lot like 'pro-life' which I absolutely cant say
FB: The value of compassion then. Compassion is always good
JK: Fine. Compassion. What else?
FB: That reminds me. What do you think of the movie The Passion?
JK: Is that the one with the cheerleaders in the carwash?
FB: No, no. The Passion of the Christ. You know.
JK: I think I remember something about that from school. Is that a Catholic thing too?
FB: Yes. If anybody asks about a movie with Passion in the title, just say you haven't seen it, and with your schedule you don't know when you'll get the chance. That's fine. OK. Easter. What does Easter mean to you?
JK: Uh . . . Bunnies? Spring skiing?
FB: No, John. If anyone asks about Easter, say it is a time of new life, renewal of life, victory over death. That's all true, vaguely Catholic and shouldn't offend anyone.
JK: I told you. I dont want to say "life"
FB: OK. Hope. Hope is always good. Good Democratic word. New hope. Say that.
JK: OK. I think I'm good. I knew I was a Catholic.
FB: Born and bred, John. Born and bred.
posted by thomas at 4/7/2004 05:48:57 PM

 
J.Lo's mom wins big jackpot. BVM says she had nothing to do with it.
By Tom Smith

God works in mysterious ways. So do slot machines.
posted by thomas at 4/7/2004 05:35:12 PM

 
Lucifer to be dean of Pepperdine Law School
By Tom Smith

Oh no, not the prince of darkness, actually, but Ken Starr (via ProfBainbridge) Judge Starr is proof that everything the media tells you is wrong. Not only is Judge Starr not an evil stalker of innocent Democrats who have done no more than pursue a little good, clean tension-relieving not-sexual-relations-with-that-woman, he is in fact probably the nicest man at his level in the legal profession. That's just how it goes in the big, bad world. Judge Starr was on the D.C. Circuit when I clerked for Judge MacKinnon in the chambers next door. My judge was charismatic and lovable, but nobody would have called him nice. Judge Starr was sunshine itself, and this is not to underrate his formidable intelligence. What he was not, was particularly politically cunning. I would say he consistently underestimated his fellow human's tendency to lie, cheat and so forth, a good man's fault, but potentially a costly one.

Never had two more opposite characters been pitted against each other than when Clinton met Starr. A thousand doctors, priests and detectives couldn't find the truth in Bill Clinton with a flashlight. To get the truth out of Starr, you just have to ask him. I suppose you can fault him for naively thinking Presidents should not break laws to cover up their sexual incontinences, but you have to give him a break. This was before we discovered, with the guidance of the New York Times, Maureen Dowd, and innumberable shrill nobodies on cable TV, that it was fine for big, lovable Bill to do all those big, lovable things on people, and to criticize him was to be some sort of sex-obsessed grand inquisitor. I didn't know that at the time, and you probably didn't either, and what a relief to get that learned. Of course, we will have to unlearn it in a hurry if there is a Republican sex scandal, but sufficient unto the day are the troubles thereof, as they say in Arkansas.
posted by thomas at 4/7/2004 09:14:17 AM

 
Debka on Second Iraq War
By Tom Smith

Characteristically insightful, if gloomy, assessment from debka.com, which has good contacts in the Israeli intelligence community.

The third day of Moqtada Sadr’s radical Shiite uprising saw US-led coalition forces under attack by both Sunnis and Shiites and the first extremely dangerous sign of a merger between the two fronts. DEBKAfile’s military sources report that US-led forces, instead of beginning to get a grip on the armed Shiite militia uprising in Baghdad and four cities, appeared to be letting command slip out their hands. There was little indication of US forces executing the arrest warrant out against the Shiite radical cleric since October. He lost no time in slipping underground, possibly in the Shiite holy city of Najef, with the estimated 3,000-strong hard core of his Medhi Army militia.

The failure to move fast enough to nab Sadr may be as costly as was the escape from capture of Osama bin Laden in Afghanistan in November 2001and of Saddam Hussein in March 2003. Al-Sadr matches neither in stature. He also represents no more than a splinter faction of the Shiite community. Yet if he proves able lead an effective underground resistance to the coalition for a critical period, he could attract a disproportionately large number of Shiite followers to his flag. It might be enough for him to keep going for another five days to a week without being caught or stopped, for the Americans to find themselves in the midst of a full-blown war.

On our side, however, are the Marines, which is exactly the right force to have opposing this uprising, or whatever you want to call it. According to a San Diego reporter embedded with the Second Marines, they entered Fallajuh yesterday with fixed bayonets, which I consider a very good sign.

I think debka's claims of Iran's involvement are plausible, as is al-Queada's involvement and that of other Arab terror groups. I hope we take this opportunity to confront them and kill as many as possible. The Marines are good at that sort of thing.
posted by thomas at 4/7/2004 08:49:14 AM

 
The Welfare State and the Poor
By Mike Rappaport

Tyler Cowan and Brad DeLong have reached an agreement. Brad admitted to Tyler that immigration would be a better way to help the poor than a larger welfare state. All Tyler had to do was to give Brad the right to name one presidential candidate for which Tyler could not vote. Aside from the exchange aspects of the deal, I should say that their reaching agreement on this matter of public policy is encouraging. It is also the kind of thing that the internet promotes and would have been extremely unlikely to happen otherwise.

On the merits, DeLong admits:

Yes, Tyler is right: Increased immigration is superior to strengthening the welfare state. I just don't think it will or can happen, so I will advocate the next best thing. From a cosmopolitan world perspective, almost all of the costs of maldistribution come from income gaps between nations and very little come from within-nation inequality. Development is far more important from a world welfare perspective than social insurance within rich countries. And immigration is a powerful tool for world development.

I have long felt this way. Indeed, it seems to me that once we eliminate the arbitrary and unjustified focus on national distribution in Rawls's theory, the difference principle forbids a large welfare state! The welfare state ends up causing restrictions on immigration and therefore harming the poor from other countries in order to benefit the better-off poor in the US.
posted by Michael at 4/7/2004 08:29:43 AM

 
Hold ... the ... Presses .... for a long, long time
By Gail Heriot

When Barbara Grutter decided to sue the University of Michigan, she knew what a formidable opponent was facing. The University had many millions to spend on its defense; her own resources would be dwarfed. But she thought at least she would be given a fair fight. She was wrong. The system was rigged against her. And it isn’t just Grutter who thinks so. Several of the judges involved in the case complained on the record of procedural irregularities at both the trial and appellate levels. It’s a triple scandal that this story never got more examination in the press.

(((I won’t got into the details of the court shenanigans except to say that court rules require that all cases be assigned to a randomly-selected judge. In Grutter’s case, that was Judge Bernard Friedman. Evidently dissatisfied, the University of Michigan made a motion to Chief Judge Anna Diggs Taylor to have the case re-assigned–something the Chief Judge could do only with Judge Friedman’s consent. That started a complicated series of rule-bending (and sometimes rule-breaking) legal maneuvers by Taylor (whose husband sits on Michigan’s Board of Regents and whose former husband was chairman of the Black Congressional Caucus and a vocal supporter of racial preferences) and her designees that culminated in the issuance of an “advisory opinion” designed to strong-arm Friedman into giving up the case. Furious, Judge Friedman refused to do so. The efforts of his fellow judges to cause him to give up “a case properly assigned ... by blind draw” were an “affront to the dignity and independence of the court and an unlawful intrusion upon ... this court’s business,” he wrote. Everyone knew that there was a good chance that this case would reach the Supreme Court, but the press was largely uninterested in the very human drama that was unfolding over at the federal courthouse in Detroit. Remarkably, further deviations from procedures occurred on appeal as Judge Danny Boggs catalogued in his heated dissent, which is worth reading. I know of no other federal case in history in which the judges themselves have complained so bitterly of improper procedure. Still, the story of the corruption received only passing attention.)))

I was sure that all this would change when documents were leaked to the press showing that the corruption associated with the University of Michigan cases extended all the way to the halls of the United States Senate. These documents make it appear that Senate Democrats and their staff members were prepared to pursue a conscious policy intended to influence Grutter’s outcome. “Elaine [Jones of the NAACP Legal Defense Fund] would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in education is decided by the en banc 6th circuit,” wrote Senate Judiciary Counsel Olati Johnson to Senator Kennedy. She then stated that her “Recommendation” was to “[l]et Elaine know that we will ask Senator Leahy to schedule [Sixth Circuit nominee Julia] Gibbons after [Ninth Circuit nominee Richard] Clifton.” (Such a course of action became unnecessary when the Sixth Circuit decided the Grutter case a couple of weeks following the memo.)

When I heard about the memo, I expected Republicans to be outraged. I expected them to demand an investigation. Sure, maybe it would turn out that Senator Kennedy disciplined Johnson for such an inappropriate recommendation, but I expected a demand for an investigation anyway. Instead, the outrage seems to have come exclusively from Senate Democrats, who were outraged that their strategy documents had been leaked. And, for the most part, that’s how it’s been reported in the press. It’s as if the Pentagon Papers story had been a story about pilfered information rather than a story about Vietnam. And not much seems to be happening on to focus attention on the very ugly contents of the documents. I don’t have any problem with the press drawing attention to the whatever improprieties that might have occurred as a result of improperly obtained documents. But can’t we have just a little outrage for what may well be one of the most “irregular” cases to make it through the federal courts?
posted by Gail at 4/6/2004 06:02:21 PM

 
Blackwater hard to kill
By Tom Smith

Maybe the Iraqui insurgents should go back to sneaking up on the Blackwater operators. Otherwise, they seem too much for them.
posted by thomas at 4/6/2004 04:56:47 PM

 
Anti-war war memorial
By Tom Smith

Does anybody else find those journalistic war memorials (like this one at the Washington Post) a bit offensive? Given the anti-war tenor of the paper's coverage, it's hard to avoid the conclusion the war "memorial" is really an anti-war gesture, meant to remind us of the cost of the war. Yet, I would bet most of the soldiers, sailors and marines killed would have professed the worthiness of their cause, right up to the moment they were killed. So to me it seems like the Post is using their deaths for a purpose they would resent, under the hypocritical cloak of patriotism. The Lehrer New Hour does the same thing. If one of my family members was among the fallen, I think I would resent it bitterly.
posted by thomas at 4/6/2004 04:46:32 PM

 
It depends on the meaning of "urgent"
By Mike Rappaport

If any more were needed to discredit Richard Clarke's partisan attacks, consider this from the Washington Times (Hat tip: Ranting Profs):

The final policy paper on national security that President Clinton submitted to Congress -- 45,000 words long -- makes no mention of al Qaeda and refers to Osama bin Laden by name just four times.
The scarce references to bin Laden and his terror network undercut claims by former White House terrorism analyst Richard A. Clarke that the Clinton administration considered al Qaeda an "urgent" threat, while President Bush's national security adviser, Condoleezza Rice, "ignored" it.

posted by Michael at 4/6/2004 03:39:23 PM

 
A Grammar Mortal
By Mike Rappaport

I took the grammar test, and also scored in as a grammar god. Since I am sure that I am not one, the test does not really tell you much. Tom Smith is a grammar god, but mere mortals can pass the test as well.
posted by Michael at 4/6/2004 02:38:18 PM

 
On the Virtue (and Vice) of Forgetfulness, Part 3
By Gail Heriot

Linda Seebach, columnist for the Rocky Mountain News, sent me a note about my forgetfulness post on Sunday. She has a Canadian anecdote that supports my view that it isn't just that Americans tend to win their conflicts that causes their forgetfulness.

Seebach recounts that while attending the National Conference of Editorial Writers annual meeting in Ottawa a few years ago, she heard a Canadian speaker commenting on the War of 1812. He observed that the United States invaded Canada, lost and has since forgotten about it, but that, despite winning, the Canadians have been brooding over it ever since. That sounds right to me.

(I note in passing that my very un-Canadian ex-husband's ancestor was Sir Isaac Brock, the general who repelled the Americans. Brock's descendants must have voted with their feet; many of them wound up in Texas.)
posted by Gail at 4/6/2004 02:33:03 PM

 
It is I, the grammar god, as I should have thought I was, and as I hope you are too
By Tom Smith

Are you a grammar god? Or, Proof that being beaten by nuns for eight years is not a complete waste.
posted by thomas at 4/6/2004 02:10:28 PM

 
The Greatness of the Yale Law School
By Mike Rappaport

For those of us who have had the privilege of attending the Yale Law School, it is hard to convey to others what that experience was like. Yet, here, at The Right Coast, we are trying our best to describe the experience by reporting on the communications that we alumni receive from the great institution. Tom Smith has unforgettably described the self-congratulatory Yale Law School Holiday Letter. But it is more than once a year that Yale does its thing.

Consider the most recent issue of the Yale Law Report, a magazine sent out largely to alumni. The main article, by William Eskridge, celebrates the Lawrence decision, which held unconstitutional criminal prohibitions on sodomy. The article does not merely praise the decision, or even note that Yale Law School educated lawyers had written some of the briefs. No, that would be too, well, ordinary. Instead the piece describes the case as “a Yale Law School seminar.” This is not the first time this phrase has been used at Yale, and the thought it conveys is, of course, that the professors of Yale – and indirectly the whole Yale community, since this is a fund-raising document, of course – are instructing the Supreme Court on the right way to govern the United States. Very heady stuff, this. If you are “of the body” – if you are part of the wider Yale community and agree with left liberal principles – then this no doubt appeals greatly to your ego.

Here is an excerpt from the article:

Even a superficial examination of the Lawrence appeal reveals that the overruling of Bowers v. Hardwick was a Yale Law School seminar. The lower court litigation was conducted by the Lambda Legal Defense & Education Fund, Inc., under the leadership of its legal director, Ruth Harlow ‘86, and Susan Sommer ‘86. Representing appellants Lawrence and Garner at oral argument was eminent Supreme Court advocate Paul Smith ‘79. Smith and William Hohengarten ‘94 teamed up with Harlow and Sommer to write the brief for the appellants.

Under the supervision of a committee chaired by Mark Agrast ‘85, the American Bar Association filed an amicus brief urging the overruling of Bowers. Other important amicus briefs were filed by [the article then lists various Yale professors and graduates].

Like the best law school seminar, the one the Yale Law School hosted for the Court was not as much interested in a particular result as in thinking more broadly about constitutional theory, methodology, and principle in this regard. The Yale influence was more subtle and potentially more important in the long run.

As the various Yale briefs emphasized, constitutional precedents ought not to be lightly overruled. Even controversial precedents must be understood in light of history, practice, and constitutional principle. Many academic believe that Lawrence v. Texas was one of the Supreme Court’s more satisfying opinions, because the overruling of precedent was soberly and persuasively justified, without the overstatement or law office history often found in Supreme Court opinions. We believe its virtues were deeply informed by the Yale Law School briefs filed in that case.

This is pure Yale. Through our great insight, the Supreme Court was taught how not to engage in simple liberal judicial activism. Instead, the Court was taught how to justify that activism through a discussion of principles and history that we at Yale approve of. Perhaps the most extravagant of the claims was this one: The seminar that “the Yale Law School hosted for the Court was not as much interested in a particular result as in thinking more broadly about constitutional theory, methodology, and principle in this regard.” Could anyone really believe that?
posted by Michael at 4/6/2004 07:01:10 AM

 
Textualism
By Mike Rappaport

A great Legal Theory Lexicon by Larry Solum on Textualism. Larry discusses the relationship between textualism and the philosophy of language concepts of speaker meaning and sentence meaning. He also presents some normative arguments for textualism. Take a look.
posted by Michael at 4/5/2004 09:58:50 PM

 
You might as well face it, you're addicted to . . .
By Tom "the bean head" Smith

caffeine. Do you experiment with putting extra scoops into your French press? Letting it steep 5 minutes instead of four? If a double latte is good, do you think a triple would be better? Do you have a tendency to say things like, "thank you Jesus" after your first, brain soothing swig in the foggy am? You need help. Or perhaps you just need another hot steaming cuppa Joe.
posted by thomas at 4/5/2004 09:57:21 PM

 
Corporate law world update
By Tom Smith

Bernie Black is moving to UT Austin. That's a big deal for Texas and certainly does do what Brian Leiter says it does. Gossip that I am, of course, I wonder what Texas did to entice him. But whatever, it puts Texas in the top league of business law schools. Congrats to Texas.
posted by thomas at 4/5/2004 06:05:50 PM

 
On the Virtue (and Vice) of Forgetfulness Part 2
By Gail Heriot

Both Steve Bainbridge and Steve Sturm commented on my earlier posting on forgetting. I agree with Bainbridge that forgiving is a better policy than forgetting. The only problem is that I'm not sure that the human species is very good at the former without the latter. And although our forgetfulness has gotten us into trouble in recent years, it's worth pointing out that it has its good side too.

I also agree with Sturm that American success has a lot to do with American forgetfulness. But I don't think it's the whole story. The North's defeat of the South in the American Civi War was both more recent and more cataclysmic than the defeat of the French on the Plains of Abraham. (And Sturm is right that American Southerners took their loss a lot harder than American Northerners.) But I can't imagine Georgia having a "We remember" motto on its license plate like Quebec's.

Another factor that I think accounts for part of American forgetfulness is a stronger policy of assimilation. European immigrants have tended to shed their prejudices once they arrived in this country in large part becauase they were expected to. Gentile vs. Jew, English vs. Irish, Serb vs. Croatian: It all seems less important in a world in which we are striving to create something in common with each other.

Hmmm ...I had something more to say, but I've forgotten it ....
posted by Gail at 4/5/2004 02:19:22 PM

 
Debka on Iraq and Iranian connection
By Tom Smith

It's complicated and it's not good.
posted by thomas at 4/5/2004 01:00:06 PM

 
Private Militaries
By Tom Smith

Interesting post at Marginal Revolutions, via professorBainbridge.com.
posted by thomas at 4/5/2004 12:29:40 PM

 
Under God and Same-Sex Marriages
By Mike Rappaport

My position concerning constitutional adjudication is a bit unusual. My normative position – how I think the Supreme Court should decide cases – is originalist. I think the Justices should adjudicate in accordance with the original meaning of constitutional provisions. My positive theory – how I think the Supreme Court actually decides cases – focuses, by contrast, on the politics and preferences of the Justices. I think that the Court as a whole decides cases, especially concerning politically significant issues, with little reference to the original meaning. Instead, the Justices look to their political beliefs, which are to a significant extent those of elite opinion, and are reluctant to take actions that will cause the public and the political branches to severely attack them.

It is true some of the Justices seem to behave differently than my positive theory suggests. Justice Scalia, for example, may often try to decide cases based on original meaning rather than his political views. And other Justices may be willing to decide cases based on their own political views, even if the public would be outraged. But in general, the majority of the Supreme Court, especially a majority with O’Connor and Kennedy, follows the pattern I suggest.

Based on my positive theory, I can make some pretty clear predictions as to how the Court will decide the pledge case and an important question concerning same-sex marriages. In the pledge case, I predict that, if the Court does reach the question whether the pledge is constitutional (which seems unlikely given the standing problems), the Justices will conclude that the pledge does not violate the Constitution. The Justices’ main motivations: First, a large portion of the public would be outraged by a decision to the contrary and would attack the Supreme Court for its decision. Second, public opinion strongly supports the existing pledge and even much of the elite believes that it would be peculiar for the pledge (which they grew up with) to be struck down, even though they might recognize that the pledge fits uncomfortably under existing Establishment Clause precedents.

Concerning same-sex marriages, the most immediate question seems to be whether the Full Faith and Credit Clause would require a state that does not allow same-sex marriages to recognize same-sex marriages entered into in another state. I predict that the Supreme Court would definitely not require states that do not allow same-sex marriage to recognize such marriages from other states. If the Supreme Court did require that these marriages be recognized, that would, again, lead to vehement attacks on the Court and would be inconsistent with the views of most of the public. While elite opinion might support such a rule, it has also argued for federalism in this area, which would be undermined by a requirement that states recognize other states’ same-sex marriages. Of course, twenty years from now, the public might have different views and then the Court might feel open to reaching a different decision.

Of course, my predictions might be wrong. But I don’t think so.
posted by Michael at 4/5/2004 08:15:13 AM

 
On the Virtue (and Vice) of Forgetfulness
By Gail Heriot

I went to the Cirque du Soleil this evening–a wonderful show that I recommend highly. But I won’t waste your time or mine by trying to explain why. You’ll get a better idea from the web site. Right now I’d rather write about what I saw in the parking lot.

Since the Cirque du Soleil is from Quebec, the trucks behind the tents all bore Quebec plates–something we don’t see a lot of here in California. I’m not sure that I’d noticed one since I used to vacation in Maine as a child. Back then, Quebec license plates contained the innocuous slogan “La Belle Province.” Unbeknownst to me, that had changed in 1978, when the motto “Je me souviens” (or “I remember”) taken from the Quebec coat of arms was adopted instead. It remains on license plates there today.

"Remember what?" you might ask. The motto was stamped onto Quebec license plates not long after Quebec separatists were swept to power in provincial elections in the late 1970s. They didn’t care for the tourist-board-sounding “La Belle Province;” indeed they probably weren’t too keen on any reference to Quebec’s provincial status. They remembered a glorious French past, of course, but the main thing they remembered was the defeat of French forces by the British on the Plains of Abraham in 1759. And they’re still not very happy about it. “Je me souviens” remains a rallying cry for the cause of separatism today.

I’ve got no horse in that race, but if I were an English-speaking Canadian, that license plate might give me the willies. In this country, a similar license would be unthinkable. Georgia simply cannot adopt a slogan like “We haven't forgotten General Sherman” to replace “The Peach State.”

Why would an “I remember” license plate be unlikely here? Part of the reason is that Americans really don’t remember. For good or ill (and I think it’s both), we’re a forgetful people. If there’s anybody in the entire country still stewing about something that occurred in 1759, they won’t admit it. That kind of memory isn't much admired. Remembering is for Europeans–Serbs and Croatians, Greeks and Turks, or English and Irish. Many of us are descended from people who came here precisely to get out from under long, bitter, and useless feuds.

Forgetting sometimes gets us in trouble. We forgot about the first bombing of the World Trade Towers; we forgot about the U.S.S. Cole. And we do a less than stellar job of teaching new generations about the ideas that created the nation. Forgetfulness has cost us dearly and it will probably cost us again in the future. But it has its positive aspects too. Americans don’t bear grudges the way that some others do.

Sure, it would be nice if we could remember the things that ought to be remembered and forget the things that are best forgotten. But I doubt the distinction can be drawn cleanly. Perhaps no matter what we do, we will err slightly on one side or another. If that’s the case, maybe it’s better that we be slightly forgetful.
posted by Gail at 4/4/2004 11:43:48 PM

 
Swordplay
By Tom Smith

I have been meaning for some time to post something on swordplay, or fighting with swords, but it's a long story. When my now 12 year old was in second grade, some Japanese musicians visited his school. Luke was enchanted by the music, and that began his obsession with everything Japanese. We went through the inevitable and insufferable Pokeman cards, but with shakuhachi (Japanese flute) music in the background. Soon Luke discovered samurai and was reading everything he could lay his hands on that admittedly fascinating subject. He attempted to teach himself Japanese, and has learned a few words and characters. When his Tae Kwon Do school, as so many do, wanted us to sign a contract roughly equivalent to a cross between a 30 year mortgage and an indentured servitude, I decided it was time to look for the Japanese martial arts training he had been begging me to find for years.

Not surprisingly, there aren't that many places that teach traditional Japanese fighting arts, beyond karate. We were fortunate, however, to find a dojo that not only taught Jujitsu, the weaponless fighting techniques of the samurai, but also swords and other weapons as well. We joined up, and for a month or two we have been faithfully attending for two hours each Monday and Wednesday, learning to throw, flip, roll, lock joints, choke, and wield bokken (wooden katana or samurai swords) and their friendly cousin, choken (foam rubber swords), all in the name of learning how to fight, in a Christian sort of way. Christian, because this is a Christian dojo, that being the way of things out here in East County. But as there were Christian samurai, I suppose that's alright. (Unfortunately, they were mostly killed in various persecutions.)

I thought perhaps many blog readers would be interested in what I have learned in just a couple of months about sword fighting, as there seems to be a lot of blogger interest is such things as Lord of the Rings, fantasy fiction and other war like genres, all of which prominently feature swords and other bladed weapons. Some things one "learns" from reading such stuff is confirmed by a more serious study, but just as much is discredited.

As I told my students, the first thing I have learned is that one should never, if remotely possible, get into a fight with somebody who has a sword. Take a katana or samurai sword. It is 30 inches or so of razor sharp steel, steel tempered to a point achievable only by highly refined traditional craft or very advanced modern technology. It weighs about 2.5 pounds, which is neither too heavy nor too light, but dangerously, creepily just right. Not only can it, but it is designed to, lop off arms, legs and heads and even in the right hands cut a person in half. One may know this abstractly, but you start to appreciate it vividly as you work with a sword, and unless you are a highly unusual person, it makes you want to stay out of their way. Movies such as Lord of the Rings with its dazzling swordplay might lead one to believe that a master swordsman (or swordself or whatever) would be able always to parry the slashes and thrusts of a less skilled person, but this is easily exaggerated. Swords, like guns, are great equalizers. Hence their great popularity through the ages. Even a klutz armed with a good sword is a dangerous man, and through luck or bravado can land a devastating blow on a much more skilled opponent, especially if he is willing to die doing it.

A lot of sword fighting in the movies is mere choreography, and not much like real fighting. For example, and a point that strikes me as pleasingly subtle, is that the fighter should avoid "weapon fixation." You see this in the movies, when the Musketeer or whoever is fighting with his sword, and then gets it stuck in a door or something, and in desperation kicks or punches his opponent. But this is all wrong. Just because you have a sword, does not mean you have to use it at every moment. You can still kick, punch, butt with your head and so on. You are not swordfighting, but fighting, while armed with a sword. An inexperienced fighter will be focused on his own weapon, and an inexperienced defender focused on that weapon as well.

Several dramatic moments in the movies turn on varieties of weapon fixation. Qui Gon Jinn in Star Wars Episode One seems to forget (even after extremely sophisticated displays of mixing kicking and swordfighting) that Darth Maul's light Bo (or whatever the Sith call them) can be used as a plain staff, getting him bashed in the face and then impaled. But Liam Neeson gets it back in Rob Roy, however. In the final duel scene, he grasps the villain Cunningham's rapier as he holds it to his throat, fixing it long enough to pick up his Scottish sword and cut the wicked fellow nearly in two, or twain , as they might have said. Cunningham was fixated on all the sword like things you can do with a sword, forgetting that it is also a kind of stick, and a stick can be grabbed. Similarly, you can do things with a sword that don't seem very sword-like, such as jab with a one-edged sword, like a katana, by gripping the hilt and pushing near the point, shoving the edge into your opponent. You can slash in the same way, if you are too close to your opponent to get leverage otherwise. You can see this as a lovely kind of versatility, or as part of what makes a sword a very nasty weapon.

Perhaps the funnest thing we do is spar with "choken" or foam rubber bokken. The sparring can be very intense, in spite of admonitions not to hit your opponent too hard. The first time I sparred it was with a man older than I, but a black belt a couple of times over, and nearly a black belt in weapons as well. When fighting, he got a crazed look in his eyes that was unnerving, to say the least. He also was very fast, and hit very hard. Even with the best of wills, this can only be infuriating, and shortly you are doing your best to hit as hard as you can, preferably on the head, where it hurts the most. But perhaps I should be more Christian about it.

Interestingly, there is now an effort to recover Western sword martial arts, which have probably wrongly been thought inferior to the Japanese and Chinese. Here are two very good books on Western fighting styles, which seem to be based on solid scholarship.

UPDATE: A reader sent me a very interesting email, part of which reads "If you haven't discovered the Swordforum International then you should check it out at http://swordforum.com/. In addition to the community forums which are awealth of knowledge, there are some very interesting essays. Another which might interest you is ARMA at http://www.thearma.org/ . It's geared towards european martial arts but they have an interesting essay which attempts to answer the age old question of whether the katana is superior to the rapier. It's at http://www.thearma.org/essays/katanavs.htm." I have checked out the links, and the sites are indeed very cool, very professionally done, and full of information about swords and sword arts. My son will be very inflamed by the notion that a European swordsman would have a prayer against a samurai, but he can work out his fury in the garage dojo I am building.


posted by thomas at 4/4/2004 08:06:33 PM

 
Taking religion seriously
By Tom Smith

Pretty good essay in TNR by Leon Wieselteir, via Mirror of Justice. The essay is a little long-winded for my tastes, however. I wonder if reading blogs shortens my already sub-optimally long attention span. (Someday there will be a drug that allows people to sit all day reading bond indentures and think it's fun and interesting, but I digress.)

I agree with Kierkegaard's point that a state religion tends to have the religion sucked out of it by the state. The state is not the friend of religion--I suppose we can concede that much to the Reformation and all that. Nevertheless, really, it is a bit hard to take seriously the point that the religious symbols in American public life, "under God" and so forth, have the effect of turning American religion into happy, harmless Anglicanism a la Britons. In a world of MTV and the Democratic Party, I'm not too worried about the state establishment of Judeo-Christianity will eviscerate it. More likely, "under God" will cause some children to wonder who God is, find their teacher cannot discuss it with them, and end up looking for the answer elsewhere, to their potential benefit. That doesn't make it constitutional, but I'd say there are miles of good, rocky ground between us and the slippery slope to complacent, 19th century Denmark. Thanks, but no thanks for the suggestion, Leon.

On the other hand, I could not agree more with Wieseltier's implication that there is something tedious, hypocritical and irreligious in politicians, such as Supreme Court justices so often are, bloviating on what religion is and isn't, when most of them (Scalia must be prominently excepted) wouldn't recognize genuine religion if their guardian angels hit them over the head with it. At least in many religions, there is something profoundly anti-political. It's not about, for once, posing for gain one way or another. The primates pause and for a moment aren't trying to rise in the hierarchy or keep from sliding down. Some primates have so internalized this struggle and are so good at it, that they can only react to this pause with puzzlement. What are these people up to? Is there no way I can take advantage of it?

So yes, if "under God" does not refer to God, who cares if it's in the Pledge? What the case ought to be about is whether the people for whom it does mean something, ought to be able to say it in public school.
posted by thomas at 4/4/2004 11:02:45 AM

 
Diamond
By Maimon Schwarzschild

Jared Diamond is the author of "Guns, Germs, and Steel: The Fates of Human Societies". The book is a fascinating study of how social and economic progress differs among different peoples depending, very crucially, on geography and on the availability of animals and plants capable of being domesticated (aka genetically modified). Geography matters because a big east-west "horizontal" land mass, extending over the same latitudes, allows lots of trade and exchange of ideas. On a north-south land mass like Africa or the Americas, there will be less trade in plants or animals, and hence in ideas, because plants and even animals do not thrive in unfamiliar latitudes. Isolated places like Australia and New Guinea will tend to do even less well.

Here is a speech by Diamond at the Museum of Natural History in New York on how to get rich. Well, about what kind of human organization -- of groups, enterprises, or countries -- is likely to be most successful in life.

And here is a link to a webpage of articles by and about Diamond in the New York Review of Books. Diamond's most recent piece NYRB piece is about Easter Island. Diamond gives evidence that the statue-building polynesians on the island destroyed their natural habitat, and hence their future. He draws some rather heavy-handed parallels to the world as a whole today. He may well be right about Easter Island. Whether he has a point about today's world is a more complicated question, which TheRightCoast -- or at least this post -- will not attempt to answer.

posted by maimon at 4/4/2004 12:19:34 AM

 
Critter Update
By Tom Smith

Out for a hike today with all four boys, spouse, sister, her federal judge husband and their three girls, and my two labs. Trish the triathelete was in running kit, so she takes off running, followed by Biscuit (aka "wormbutt" to the kids, after super-Nanny and ranch girl Heidi ruined my day a few days back by looking at my demure yellow lab, leaning over, and standing back up with an ugly little white worm segment in her hand; Biscuit grinned stupidly.) Denali the miracle dog, who defied veternary science and survived after a week in the doggy ICU from heat stroke, gimpily ran after. He is the very soul of the lab motto, "no brain, no pain." Of course, the group got separated into parts. At one point, Jeanne and I found ourselves temporarily alone on the trail and it was almost like being married. It was the most privacy we'd had in, oh, a year or so.

Critterwise, the news is this. On the way back, we ran into a country-looking woman and her young daughter, walking their large bloodhound. She said to me something like "Is that your trackmaker?" I didn't understand her at first. She had that East County accent, which I guess is, to use the un-PC term, "Okie" in origin. I also didn't know what a "trackmaker" was. It turns out she meant, had my dog made the tracks she had seen further up the road. I had noticed the tracks too, like those of a large dog, with very prominent claw marks. I said no, and she told me I should not be letting my children run ahead of me, as there was, she claimed, a mountain lion in the area. She said she had seen one near her sister's, as if I should know where that was. Not far, I gathered.

When we got to the tracks, Judge Paul said that cougars have retractable claws, so the prints could not be lion. I'm not so sure. The tracks were in mud that had hardened. Perhaps a lion would have used his claws for purchase on the soft mud? The tracks looked feline to me, like those of a 120 pound tabby. Seven year old William leant over, felt the hard tracks and announced authoritatively that they were old, as if his name were really Runs-Like-the-Buffalo. Where did he get that? He was quite right. The tracks were a least a couple of days old, but I have never told him anything about tracking.

To be on the safe side, we herded the kids together and walked home as a group. I wasn't too worried, but I could do without thinking about lions eating my children when I'm out for a stroll straight out my back door. I own a handgun, and now have two reasons to bring it along, the other being the two legged predators who can show up in the Southern Californian bush. It would be illegal, of course, so I leave it home. I suppose Judge Paul could have attempted to enjoin any attacks.

FYI cougar seem to prefer children, though adults will do, and usually the attack is from behind. If you confront one, don't run. They like that. Yell at it and throw rocks. But don't be afraid. They can smell your fear. If you get attacked anyway, it would be a good time to reconsider your agnosticism. Also, fight like hell. It will try to bite your face, head and neck. Getting your arms in the way might help, and kicks and punches to the short ribs are reputed to be especially painful to big cats and dogs. But realistically, at this point you are probably dead. Too bad you didn't bring that gun along!

The recent wildfires destroyed a lot of prime lion habitat in the Cuyamaca mountains, about 45 minutes east northeast of us. Perhaps cougar are moving into new ranges, looking for kiddy chow. It's probably for the best I can't bring the gun, though, as I would be tempted to shoot the ATV drivers and motorcyclists who trespass on the land, ripping it up and making a lot of noise and dust in the process. Maybe the cougars should eat them.
posted by thomas at 4/3/2004 09:34:47 PM

 
Scouting in San Diego
By Tom Smith

The ACLU is out on its mission to do evil, this time in San Diego. See this piece in the American Spectator co-authored by local Federalist Society attorney Mark Pulliam. It the ACLU knew anything about Scouting, they'd know it is mainly about giving working class, often minority kids the opportunity to accomplish something, play some games and maybe spend a little time telling stories around the campfire. Because the Scouts think it might be a problem to send boys out into the woods with adult gay men, the ACLU wants to shut the Scouts down. Anyone who thinks it's not a problem, hasn't spent much time blogging gay sites. If the ACLU hurts a bunch of kids without a lot else in their favor in the process, well, you can't make omlettes without breaking a few little hearts.

I would say the ACLU should be ashamed of itself, but we all know that is asking for the impossible. They could file the lawsuit that caused the Earth to fall into a cosmic black hole, and as the planet circled the gravity drain, they would be congratulating each other on their devotion to principles, ever changing though they might be to suit whatever wind is blowing from the left. All you have to do is spend a little time with ACLU lawyers, and you quickly figure out they do not worry about the costs of their actions. They are every bit as fanatical as the most glass-eyed, Bible thumping fundamentalist. The idea that they are fearless defenders of individual rights is a canard. Most of their actions can be explained by a deep-seated hostility to Christianity and to religion more generally, and that weird identification with criminal defendants (or just criminals) I have always found mysterious. Their history explains a lot, that of a moldy, old hard-left organization that figured out the advantage of posing as defenders of the Constitution. Now they are just a relic, but that doesn't mean they aren't dangerous and full of evil energy, like the one in that horror movie. What do you do if you are a front organization with nothing to front for anymore? It's a good thing we have a First Amendment, or the folks in the ACLU would be fighting to prohibit religion altogether.
posted by thomas at 4/3/2004 01:46:01 PM

 
First Draft of Yale Law School Application site
By Tom Smith

Welcome to Yale Law School J.D. Admissions, [now get lost]
General Information
Academics | Faculty | Student Life | Centers, Projects and Events | Public Interest and Career Services | Sterling Law Building | Housing | New Haven and Visitor Information | Admissions Overview | Tuition, Expenses & Financial Aid

Welcome to Yale Law School J.D. Admissions

Yale Law School is an extraordinary community in which to study law. [You can say that again.] Our unmatched faculty-to-student ratio allows us to offer a vast array of courses [on whatever goofy topic in which a professor wants to indulge himself that semester], with an average class size of under 20 students [often way under]. Easy student-faculty interaction is a hallmark of the school [especially easy for the professors, who interact with students only when they feel like it]; students enjoy countless opportunities for research and writing with professors [up to and including unattributed co-authorship]. Law students have access to scholars in all of Yale's departments [Chip--is this OK, or just too much of a fib even for admissions materials?], to the University's nine-million-volume library system, and to its cultural, social, intellectual, and athletic activities [but not to the various exclusive clubs, such as Morie's, that are only open to undergraduates]. At the same time, Yale Law School has ties to the city of New Haven, a small, lively [think Law and Order] urban [and we mean urban] center with several first-rate museums {a real life cast of characters straight from The Sapranos,] and the best pizza in America. [Students going out for pizza after dark should travel in groups or have significant experience in close quarter combat.]

To request a J.D. application, click here.

Contact information:

Yale Law School Admissions Office
P.O. Box 20823p
New Haven, CT 06520-8329


[I know, I should stop picking on Yale Law School. I should be grateful they let me in. I am grateful they let me in. Otherwise, I'd probably be slaving away in some giant law firm now, thinking I coulda been a contenda. I just can't help myself. I think they are so funny. I promise, if I ever realize my ambition to be incredibly rich, I will give them some money. Not a lot of progress on the incredibly rich front lately, but who knows.]

UPDATE: Brian Leiter has asked me to opine on the appeal of YLS to top law school candidates, given certain drawbacks I allude to comically (I hope) above. I don't really know, but I can speculate. First, whatever problems Yale may have, Harvard has problems of its own, I'm sure. It's what, three times as big, and full of people even more ruthless and competitive than you are. Who can forget that nasty fat guy in The Paper Chase who kept calling people "robot pimp"? So Harvard is a factory, and one might fear that as a sensitive genius, one might not shine at one's best in a factory.

My brother in law Paul Cassell who is sitting on our new couch as I blog this, was president of the Stanford Law Review in his day, and has nothing but positive things to say about Stanford. He is a positive guy, without a lot bad to say about anybody, sort of like me.

Chicago, well, Chicago seems pretty fierce. Yale seems relatively warm and inviting, compared to Chicago. And the ambiguity of grades at Yale is alluring. (I once went to the Registrar at YLS and pressed her to tell me what my class rank would have been, had the law school ranked people. She told me "top 10 percent." I realized later there was every chance she told this to anyone who asked that question, which was probably a fair number of people.) I went to Yale because I was choosing between going to law school and doing graduate work in political theory, and Yale seemed to offer the luxury of not really having to choose between the two. In retrospect, I probably got neither more than both, but given my idiosyncratic portfolio of virtues and vices, I was probably much better off at Yale than I would have been anywhere else. Finally, I think Yale is by some distance the most selective law school, so there is the appeal of joining the most exclusive club (this is before you realize the most exclusive club is one you can only be born into).
posted by thomas at 4/3/2004 11:49:33 AM