Crescat
Sententia

Jim Ryan has been defeated by the sex scandal in Illinois, it seems. I have nothing else substantive to say about the other candidates for Senate except that Barack Obama seems like a very nice and very sharp guy, and since he's from the U of C I'm strongly biased in his favor. Jim Oberweis, who is on the short list to take the Republican nomination, runs a dairy that makes darn good milk. I can't see how that would help him be a Senator though.

Apropos of yesterday's quoting from Supreme Court opinions, Toby Stern emails to let me know that he prefers this bit from Scalia's concurence in Ring v. Arizona:

I add one further point, lest the holding of today’s decision be confused by the separate concurrence. Justice Breyer, who refuses to accept Apprendi ... nonetheless concurs in today’s judgment because he “believe[s] that jury sentencing in capital cases is mandated by the Eighth Amendment.” While I am, as always, pleased to travel in Justice Breyer’s company, the unfortunate fact is that today’s judgment has nothing to do with jury sentencing.... There is really no way in which Justice Breyer can travel with the happy band that reaches today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.

If you missed them yesterday, go back and read Peter's and Greg's post on the Supreme Court Forecasting Project. Fascinating stuff, and there will be more to watch in the future.

Timothy Noah liked the World War II Memorial. I've been wondering for almost a month whether I would, too.

Yesterday, I finally visited it for myself. A few assorted thoughts:

1: There are little funny pillar-like things with the names of states (and Guam, and the District of Columbia, and American Samoa, and so on) on them ringing the big pool. I don't really know why-- I had thought that in World War II (unlike, say, the Civil War) there wasn't any particular state-based organization of the armed forces. It's almost as if somebody decided that pillars would look nice and then said, "What do we have about four dozen of that the pillars could represent?"

2: The pillars themselves are weird-- they look remarkably like arrowslits that have been stripped from some old castle wall and dropped there.

3: The big pool of water is nice enough-- I like big pools of water-- but it lacks the subtle power of the Lincoln Memorial's reflecting pool, and the fountains in the pool are a little funny-looking. There's no attempt to decorate or hide the little industrial-looking nozzles that are spraying the water.

4: It's nice that they let people put their feet in the water; that's very refreshing on a summery day when you've been traipsing about for a while. But maybe they ought to work harder to keep people from letting their diapered infants charging hip-deep into the water. That's just icky.

5: But, the pool does have ducks. Two of them-- rather persistent little creatures, too, who kept swimming over and contemplating my toes.

6: For that matter, what will happen to the big fountain-thing in winter time? The whole memorial will look even more antiseptic and Coruscantian if they turn off the fountain and let the basin gain a frosty sheen, which I assume they will. If the nozzles weren't sticking up quite so baldly and boldly (see #3) they could at least turn the center into a tiny ice-skating and -sliding rink.

7: Noah is wrong that:

The quotations carved in marble are mostly stirring; the only misstep is a fairly bland quotation from the writer Walter Lord ... about the Battle of Midway.

It's possible to imagine that, once the crowds die down, young lovers will smooch here—a venerable war-memorial indiscretion that no one would dare attempt at the infinitely more solemn Vietnam and Korean war memorials at the opposite end of the Reflecting Pool.

I just finished Of Love and Other Demons, a short book by Gabriel Garcia Marquez that I bought a very long time ago, because I was so intrigued by the title. It's five chapters long, and the first four chapters are perfectly good in that Gabriel-Garcia-Marquez-tells-a-good-story kind of way. The fifth chapter, though, blows the previous four away in a way that makes the whole book highly worth reading.

This quote from the book is dedicated to those friends of mine and Crescat's who are a handful of time zones ahead:

"The very idea that they have already slept tonight in Spain fills me with terror."

"We cannot intervene in the rotation of the earth," said Delaura.

"But we could be unaware of it so that it does not cause us grief," said the Bishop. "More than faith, what Galileo lacked was a heart."

Greg's post below reminded me that I never got around to posting on the Supreme Court Forecasting Project, despite seeing one of the coauthors present a draft of the paper this fall. Ooops. At any rate, I can at least take this moment to draw attention to one of the more amusing factoids in the data: not only did the experts (in the aggregate) do worse than the algorithm, the experts did worse than they would have if they had simply bet "The Court will reverse" on every single case. In the 2002 term, the experts got 59.1% percent correct, while the reversal rate (and hence the percent correctly predicted by using the naive "bet on reversal" rule) was 72%.

Now, this isn't a particularly nice comparison to make, or a particularly fair one. The 2002 term had a rather high reversal rate; the average over the past 10 terms was 63%. Then again, 63% is still higher than the experts' 59.1%. Of course, it's possible that this was just a bad year for the experts; we won't know until this contest is repeated a few more times.

Nevertheless, this highlights two important issues: first, even experts often overestimate their own private knowledge. Second, especially when dealing with discrete choice models, it's important to be careful about what makes a model good or bad. "The Court always reverses" is right a decent percentage of the time; this particular term, it was right almost as often as was a much more complex model made by professionals. But it's clearly a bad model with respect to knowing what American law is or what it will be in a given case; all it highlights, really, is the fact that an unreversed decision stands, so a Supreme Court that is inclined to affirm has less need to grant cert. than one which plans to reverse. It's worth reading the article Greg linked to, then, if only for the discussion near the end where the authors highlight what such models are and are not good for.

The Supreme Court Forecasting Project was designed to facilitate a "a friendly interdisciplinary competition to compare the accuracy of the different ways in which legal experts and political scientists assess and predict Supreme Court decision making."

Professor Volokh offered an early prediction on which group might be victorious:

Cool! I've been on the side of the steam drills in many projects; they win eventually. But somehow I think that you can bet yo' las' red cent on me and my colleagues in at least this particular competition.

Well, I hope Professor Volokh did not bet his las' red cent on the predictions offered by him and the rest of his colleagues. According to results from the Court's 2002 term just published in the Columbia Law Review, the statistical model created by political scientists correctly predicted 75% of the Court's affirm/reverse results correctly, while the legal experts languished behind at 59.1% of case outcomes correctly predicted.

I haven't yet been able to look over the paper closely, but this appears to be a significant victory for political scientists in the long running debate over which group is more accurately able to predict Supreme Court outcomes. If you're wondering, the model created by political scientists considered six factors: "(1) circuit of origin; (2) issue area of the case; (3) type of petitioner (e.g., the United States, an employer, etc.); (4) type of respondent; (5) ideological direction (liberal or conservative) of the lower court ruling; and (6) whether the petitioner argued that a law or practice is unconstitutional." Id. at 1154 n. 19. As the paper reports, "The legal experts, by contrast, utilized particularized knowledge, such as the specific facts of the case or statements by individual Justices in similar cases." Id. at 1154.

Thanks to How Appealing for pointing to the published results.

I'm sorry to hear about Belle Waring's travel travails, and I just thought I'd point out that it's my visceral reaction to this sort of thing that makes me something of a libertarian.

I just can't understand the purpose of a set of rules that stops an adult woman and her husband and child who go to the embassy and explain, "Hi, we're law-abiding citizens who would like to go on vacation." The fear is-- what, precisely? Couldn't somebody just fingerprint them before they leave and check when they return?

Sigh. I realize that the let-Belle-Waring-go-on-vacation cause doesn't carry the moral imperative that a lot of Libertarian causes do, but it still irritates me.

UPDATE: A note to the emailers-- I'm fully aware of the need to have sensible systems, and aware that a sensible system can't make exceptions for every case of need. Yes, rule of law, is good.

BUT, my claim is that the current system of immigration/travel law nearly anywhere is far from sensible. Why not let babies travel on their mothers' passports? (Perhaps subject to some sort of extra check-- finger prints or . . . whatever).

This will be of interest to nobody but me and the other two Ada-lovers on the web, but the curious Nabokov site Zembla is launching a project called ADAOnline, which will put the entire text of Ada, complete with Brian Boyd's sometimes too-complete notes from the Nabokovian, online.

Ada, is, of course, Nabokov's greatest novel, and coincidentally the greatest novel written in the English language. [Contra William Jefferson Clinton.]

Oh, and the folks there are also looking for volunteers to help encode the rest of the novel. Anybody with lots of time handy who is looking to be acknowledged on the site should email Jeff Edmunds: jhe2 at psulias dot psu dot edu.

As all serious court-addicts will have deduced by now, there are some new Supreme Court opinions out (available, among other places, here, and briefly summarized, among other places, here). Thus far, the snappy-line-of-the-day award goes to Justice Scalia (writing a majority opinion for Thomas, Ginsburg, Stevens, Souter, and himself) in Blakeley v. Washington:

JUSTICE BREYER cites JUSTICE O'CONNOR's Apprendi dissent for the point that this Bishop quotation means only that indictments must charge facts that trigger statutory aggravation of a common-law offense. Of course, as he notes, JUSTICE O'CONNOR was referring to an entirely different quotation, from Archbold's treatise. JUSTICE BREYER claims the two are similar, post, at 14, but they are as similar as chalk and cheese.

JUSTICE O'CONNOR does not even provide a coherent alternative meaning for the jury-trial guarantee, unless one considers "whatever the legislature chooses to leave to the jury, so long as it does not go too far" coherent.

SCOTUSBlog reports a partial win for Cheney in the Supreme Court, with what seem to be five votes-- Kennedy in the majority and Ginsburg in one of the dissents (reading from the bench, which usually means that a justice got particularly exercised about the issue). If so, and if Scalia is one of the five, it means that the prediction Bruce Ackerman made in class last March is wrong.
UPDATE (10:27 EST): The AP calls the decision 7-2.

UPDATE TWO (10:58 EST): Bruce Ackerman is vindicated, according to the AP. Scalia and Thomas form a 2-Justice concurrence, thus Scalia's not to recuse himeslf doesn't matter at all.

The Curmudgeonly Clerk suggests that the legitimacy of the Supreme Court's decision in Bush v. Gore should not be impugned, since even had Gore won, the evidence seemed to be that he would have lost the recount:

I can find no evidence that any organization has ever found that Gore would have won had the recount continued as per his own preferred methodology. It seems somewhat questionable to brand the Court's conduct illegitimate, given the inevitability of the outcome, particularly when that inevitability was the result of Gore's own litigation strategy.

As of now (11:44 EST) The Volokh Conspiracy has its first post up with comments enabled (Eugene Volokh's anti-comments comments notwithstanding). This sort of guff from guest-bloggers is very unfortunate. I never even got the comments template set up over here on Crescat, so even when I tried to give in to pressure it didn't work.

I guess I've been out of the loop when all the drama on "good music" was taking place -- however, a few caveats on the discussion:

1) Although a valiant attempt, I agree with James (the first comment here on the Dead Parrots post). The two songs are definitely not being played at the same volume -- so, I suspect (but am not sure) that the only thing that really "fits" about the two songs is that they are in the same key and are approximately the same tempo. If this is a crime, most music sounds the same.

Following up on Greg's post below, a pair of other amusing acknowledgments.

First from The Most Insignificant Justice, by David Currie. (50 U. Chi. L. Rev. 466)

I should like to thank none of my colleagues for help in composing this seminal article. None of them appeared to take it seriously.

Professor of Law, University of Chicago, a title I shall not be able to keep if I write many more articles in this vein. I am indebted to R. H. Helmholz for pointing out a spelling error in an earlier draft. Several of my other colleagues offered similarly helpful advice about this project -- most often to publish it under someone else's name -- but as usual I disregard their sage counsel. The Law and Economics Program of the University of Chicago Law School provided no support for the research and writing of this article and is not responsible for any of the conclusions expressed here. Neither am I.

I am an enthusiastic reader of the comments provided by authors at the start of law review articles. Here's a most amusing entry:

The practice of acknowledging help in the writing of insignificant law review articles has gotten out of hand; otherwise the author would note his exceptional indebtedness to Professor Robert C. Post.

Michael E. Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203 (1986).

Ice-cream trucks sell drugs? Geez. I haven't been this disillusioned since I discovered that the phrase "confirmed old bachelor" means something much different than I always thought when I was little [So, in My Fair Lady, when Rex Harrison said he was a "confirmed old bachelor, and likely to remain so . . ."]

Somebody should tell us kids these things.

Chris Lawrence has gone on the warpath against "the widespread condescension displayed by the self-annointed music cognoscenti toward popular music." Lawrence is right to suggest that there's plenty of room to live and let live in the world of music. Of course, he wants people not only to let him enjoy his dubious pop music (some of which I like quite a bit as well), but also, presumably, to stop peddling their "pretentious twaddle." This is a more complicated point, since (near as I can tell) the pretentious twaddle isn't being directed at him so much as blogged near him and (for some folks) that "pretentious twaddle" adds to their enjoyment of the music.

But even more fascinatingly, Lawrence links to this guy who links to a fellow who has posted an mp3 of two Nickelback songs mixed together (so that they play simultaneously). The mix sounds (to my ear, and apparently others) quite good, and better than either song individually. This is supposed to prove that Nickelback sucks, and that their music is "all the same".

Of course what it actually proves is that two particular Nickelback songs have some interesting harmonies, and don't sound dissonant or unpleasant when they overlap. One can only assume, then, that the criterion for the goodness of an artist is that for every pairing of that artist's songs, the songs are sufficiently different that they will sound dissonant if simultaneously played. I have no idea why that's a sensible criterion, but presumably the internet-mixer at work here has blended Beethoven's Rule Britannia and God Save The Queen and Count Basie's Jive at Five and One O'Clock Jump to demonstrate this principle.

Anyway, the Nickelback blend is quite good, and somebody should release it. It would do well. Of course, given copyright law, that somebody would probably have to be Nickelback. Is this evidence for Tyler Cowen's theory that mixing is the wave of the future?

In my rather futile and half-hearted attempt to keep people up to date with relatively unknown holidays, today is St. John's Eve, tomorrow being the Feast of St. John, aka Midsummer (a la A Midsummer Night's Dream) in some cultures.

...not that I, of course, condone either eloping under penalty of death or setting huge piles of wood on fire...

...although it does seem to keep witches, creatures of questionable existence, and parents with nothing better to do rather occupied.

I speculated yesterday that William Saletan's bizarre series of "Kerryisms" in Slate might really be just a big joke-- perhaps poking fun at Jacob Weisberg's less bizarre but often unfair Bushisms. Now Our Girl in Chicago points me to a New Yorker piece by Louis Menand about all of the grammatical infelicities in Lynne Truss's Eats, Shoots and Leaves, and he too comments that the whole thing might just be a joke.

Perhaps there is a moral to this story about being very wary of a certain sort of grammatical zealotry. I have a lot of sympathy for grammatical sticklers, but really.

UPDATE: William Saletan has responded to his critics. Sadly, he focuses mostly on the over-the-top criticisms at Spinsanity rather than the sounder and more focused debunkings of Eugene Volokh.

Coolness. Eugene Volokh welcomes Cass Sunstein of The University of Chicago Law School as a guest-blogger to the Volokh conspiracy. To my knowledge that makes him the first blogging Chicago Law prof (barring the possibility of somebody like Richard Posner maintaining an anonymous blogspot domain amidst his other prodigious output).

That's very cool.

I remember hearing a story-- which now seems vaguely relevant-- about somebody who was at Chicago for a time and used to eat lunch with Richard Posner and Cass Sunstein. This fellow and Sunstein used to get in long arguments with Posner, and leave the argument upset. The difference, the fellow explained, between him and Sunstein was that he went up to his office and fumed for an hour while Sunstein went up and popped out an article in response.

The point of this story was about the way blogs let us get in touch with much smarter people on a much more regular basis than we could before, even if what we read are mostly off-hand musings rather than scholarly output. That is, in some sense we can all have blog-lunch with Eugene Volokh nearly every day. Now, it seems, Sunstein is coming to lunch too.

UPDATE: Jack Balkin also claims to be hosting Cass Sunstein (though as yet he has materialized no Sunstein post). Will the professor be double-posting?

I now have a piece on TNR Online discussing yesterday's decision in Hiibel. Thanks to Howard Bashman and Lawrence Solum, and anybody else who's already linked to it.

As must be terribly obvious to you all, given the slightly depressed traffic of the past week or so, daytime blogging-- at least on my part-- will not be at the same frenetic pace this summer that it has been at since January. [And that blogging was not at the still-more frenetic pace as it was during my fall months in Cambridge.]

Occasionally a few moments in the day wiggle free, and I'll sometimes post things during them, as well as at night, and occasionally I'll save things as drafts and post them during the day. And so on.

In other words, posts are going to be much more catch-as-catch-can (my favorite phrase when describing my own irreponsible habits) for a little while. But hopefully you'll keep coming back for the usual mix of completely unrelated musings.

Brian Montopoli has a piece up on TNR Online in praise of Jeopardy. I'm a little dubious about what seems to be his political agenda (rescuing Jeopardy from the cut-throat competition folks) but praise of useless knowledge is always welcome, especially by those of us who waste much of our time in life acquiring it. And because no post about useless knowledge could be complete without it:

Housman: Taste is not knowledge. A scholar’s business is to add to what is known. That is all. But it is capable of giving the very greatest satisfaction, because knowledge is good. It does not have to look food or sound good or even do good. It is good just by being knowledge. And the only thing that makes it knowledge is that it is true. You can’t have too much of it and there is no little too little to be worth having. ... It’s where we’re nearest to our own humanness. Useless knowledge for its own sake. Useful knowledge is good, too, but it’s for the faint-hearted, an elaboration of the real thing, which is only to shine some light, it doesn’t matter where on what, it’s the light itself, against the darkness, it’s what’s left of God’s purpose when you take away God.

Below the fold

In deconstructing the latest Kerryism, Eugene Volokh finally asks:

What is the author of this column thinking? ... What is he trying to do?

Guido Calabresi's anti-Bush remarks have been getting some attention in the blogosphere. Some of this attention has been from The Curmudgeonly Clerk who rightly points out that Calabresi's comments violate the Code of Conduct for United State Judges:

In the past, I have advocated according judges broad free speech rights. I retain this position. In general, I think more harm comes from muzzling judges than from letting them freely speak, even on topics that intersect with politics. What constitutional issue does not have a political dimension, after all.

But Judge Calabresi's remarks go too far. His speech constitutes an unambiguous violation of the Code of Conduct. He has improperly publicly declared opposition to a specific political candidate (and thereby implicitly endorsed another). Such brazen politicking from members of the federal bench cannot be tolerated.