Man Without Qualities

Saturday, October 12, 2002

Gee, I Used To Think That The Nobel Prize Was For Something You Did

But I was wrong. The Nobel Prize is a way of the Nobel committee expressing its opinion on current events:

The chairman of the Nobel committee ... said the award [to Jimmy Carter of the Peace Prize] was a criticism of President George Bush's policy on Iraq ... [T]he award to Mr Carter "should be interpreted as a criticism of the line that the current administration has taken". ... "It's a kick in the leg to all that follow the same line as the United States."

Chairman Gunnar Berge's comments let Jimmy Carter know that his award is not about anything exceptional Mr. Carter has done. The bit in the committee announcement about the Camp David accord is clearly specious, since Mr. Carter did not receive the Prize when the Camp David Accord was effected - and two Peace Prizes were awarded based on the accord at that time. It is good of Mr. Berge to leave the world in no doubt whatsoever of how specious the committee's justification for this Prize really is. For the same reasons Mr. Berge's comments expose as disingenuous the Nobel committee's own statement that it had "honoured" Mr Carter for "decades of untiring effort to find peaceful solutions to international conflicts, to advance democracy and human rights, and to promote economic and social development."

His comments at the same time let the world know that the Prize itself is not awarded to exceptional people who have done exceptional things - but just to annoy whatever world leader is bugging the committee today. Surely this entire clown show in Oslo completes the trivialization of the Peace Prize.

Just to make sure that nobody thought Mr. Carter was getting the Prize for something he actualy did like the Camp David accord, the official committee's announcement (not just the chairman, whose comments are somewhat controversial) said: "In a situation currently marked by threats of the use of power, Carter has stood by the principles that conflicts must as far as possible be resolved through mediation and international co-operation."

In other words, we're only giving you this Prize to annoy and we hope impair your President in time of Congressionally-approved war.

Perhaps somebody can explain how Jimmy Carter can not turn down this Prize? For a long time after he was instructed by the voters to leave the White House, Mr. Carter was widely termed a man who was a bad President but made a good ex-President. From his apparent acceptance of the Prize and his comments, he seems to be trying to change that second part.

And, gee, why didn't the committee just go all the way and award the Prize to Saddam Hussein for his offer to let the United Nations weapons inspectors back into Iraq? Isn't that a bold move towards peace in the view of the United Nations and this Nobel Prize committee?

And wouldn't that have been more clearly a criticism of President George Bush's policy on Iraq - their stated goal. Perhaps there was some lingering concern over awarding the prize to a deranged, murderous dictator so the committee chose a fool for various deranged, murderous dictators around the world. Fools awarding a fool. But, then, hadn't Arafat's Prize cleared the way long ago for awarding the Peace Prize to deranged, murderous dictators? So why not Saddam now? Somebody didn't think this thing through.

UPDATE: The mystery of why the Nobel Peace Prize Committee did not award the Prize to Saddam Hussein this year continues to deepen as comparisions with Mr. Arafat's award become more apparent. Mr. Arafat was awarded the Prize for making modest concessions to a legitimate democracy (Israel, just as Mr. Hussein's ersatz "concessions" are now proffered to the United States) in a process that bought a brief period of relatively low level military engagement and allowed him to retain his hold on power. Even those concessions were eventually exposed as fraudulent, and the whole situation has now followed its inevitable arc into a full blown catastrophe even worse than that prevailing before the "Accord."

If this was good enough for the Prize Committee in Mr. Arafat's case, what was the big problem now? If Mr. Bush had taken the bait, military engagement would have been delayed - even if things inevitably blew up a little later. Surely the fact that Mr. Bush didn't accept Mr. Hussein's offer to readmit inspectors can't be held against Mr. Hussein!

Otherwise, what's the big difference that deprived Mr. Hussein of his Prize? Maybe when Gunnar Berge gets his fill of imagining that he is kicking Mr. Bush in the leg (on the other hand, I suppose that caterpillars do kick the leaves they are nibbling on from time to time), the Chairman can explain his thinking.

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Friday, October 11, 2002

Biblical Terrorism II

It is also worth noting that from a Biblical perspective the discussion in the prior post on this topic does not seem to depend on any conclusion that what Moses did was participate in good violence, and good war. The voice from the whirlwind tells Job that human answers to the questions generated by the acts and orders of God are wrong and that, furthermore, God himself offers no explanation. Job must wait and endure. God's answer to Job is not "What I do and what I tell you to do is good," it is "Do as I say because I am God, and I'll do as I like for the same reason."

Hey, who does he think he is? ... God?
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For The Opportunistic, Opposites Attract

Dr.Manhattan writes with real insight:

A while ago I linked to this post, which crudely and effectively made a point that I'd been noticing for a while: that critics of American foreign policy generally, and of the war on terrorism and/or Iraq specifically, often make arguments whose logical implications are exactly the opposite of what they intend. A good example of this phenomenon is the debate over what to do with Iraq after we've effected "regime change."

There's more. Josh Marshall especially should take a look.
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Sonny Bono Again Rules Us From the Grave - Get Used To It

A prior post addressed the challenge to the copyright extension act - the so-called Bono Act - that has reached, and for which oral argument was recently heard by, the Supreme Court.

In my opinion, it is highly unlikely that the Court will invalidate this act, contrary to what is argued by the Volokhyries.


Much of the force of the arguments against the Bono Act lies in the practical economic calculation of the value of the additional years that Act adds to the copyright monopoly. As summarized in my prior post:

[B]ecause of the time value of money, a dollar to be received more than 50 years in the future is just not worth that much as an author's incentive today. As one plaintiff put it: “We actually went to the trouble of getting an amicus brief from … a professor of economics at Berkeley, and he made the calculations and found that it would only be a few cents difference in royalties between 50 years after an author died, which is how the law has been since 1978, and 70 years after the author died.”

Fine. Except that to perform that calculation that "professor of economics at Berkeley" (or anyone - including the Court) must choose a discounting rate of interest good for twenty to seventy years. For example, the media is now full of warnings that the nation may face a protracted period of "deflation," a phenomenon normally associated with very low, even negative, interest rates. Interest rates are already quite low - and in Japan, which has been experiencing "deflation" for years has also experienced dramatically low interest rates for a long time.

Suppose the interest rate assumed for this calculation is zero (which might seem low, but then the Japanese experience shows that is a false commonplace assumption which depends on some pretty fancy economic prognostications). Then a dollar obtained from the copyright monopoly twenty, fifty or seventy years from now is worth exactly as much as a dollar today. Far from being "a few cents," the value of the extension - and therefore the power of its incentive - is HUGE.

In the alternative, suppose that interest rates will be stable and modest for 50 the next years - and then level out at zero for the next following twenty years (in the sense that borrowing money today for a period ending 50 to 70 years out costs no more than borrowing money today repayable in exactly 50 years). Then each dollar earned in the twenty-year extension period will be worth today exactly what a dollar in the 50th year will be worth. If it was constitutional for Congress to include that 50th year (under the 1976 Act), then how can it be unconstitutional to include the following twenty years under this assumption as to interest rate? Can the meaning of the text of the United States Constitution depend on an unknowable and essentially arbitrary assumption as to what interest rates will be in the period fifty to seventy years in the future? OF COURSE NOT.

The arguments now before the Court amount to insisting that it is of absolute Constitutional significance that actual, current interest rates do not have the characteristics described above. But the meaning of the Constitution is not determined by the current state of the bond market. The last major amendment to the copyright laws was passed in 1976 - a date followed by the Carter period of huge inflation and high interest rates (many home mortgages were made at 19%, for example). Does anyone doubt that the value of a dollar shrinks a lot faster at interest rates in Carter's 20% range than at Bush's (say) 3%? At the interest rates prevalent in the period 1976 through 1981, the discounted value of the copyright monopoly for its 30th through its 50th year was comparable to the value of the copyright monopoly at present, low interest rates for its 50th through its 70th year. Interest rates were very low in the depression, they are relatively low now and even lower in Japan - where they have been very low for a very long time. So what? The constitutionality of the copyright laws does not depend on whether interest rates go up or down.

And it also matters that the Copyright Clause was written in the late 18th century, when there was NO capital market in debt obligations worthy of the name in the entire United States. If, in 1800, Congress had wanted to know whether a particular copyright period was Constitutional under the now proposed "value of the marginal incentive" test, that could not have been done in any reliable fashion. Which is just as well, since at the time the Constitution was written the nation had recently experienced a period of hyper inflation (the saying "Not worth a Continental" refers to money, not soldiers). At hyper inflation interest rates of, say, 10,000%, the tail end of a 15 year copyright monopoly is not worth very much. The Framers understood debt and they had themselves recently experienced the various effects of interest rate fluctuations. In fact, much of the original Constitution is intended to protect the interests of the creditor class (the Contract Clause and the Bankruptcy Clause, for example). All of which strongly suggests that the Framers did not intend the meaning of the Copyright Clause to be determined in the way the Court is now being asked to do.

So what the heck would the Supreme Court be doing picking one or more interest rates for this analysis - any interest rate? Are the Justices expected to experience some kind of joint aphasia and start thinking that they were actually appointed to the Federal Reserve Board, the Council of Economic Advisors or the House Ways and Means Committee?

The problem with interest rate assumptions alone make it highly unlikely that the Court will invalidate the main provisions of the Bono Act based on any argument about the lack of value (and therefore lack of incentive effect) produced by adding an additional twenty years to the copyright monopoly.

But it gets worse.


Through the intermediation of the MicroSoft antitrust action, the world is now quite familiar with at least the existence of arguments which purport to explain how the copyright monopoly can be combined with strategic maneuvering to create a vast and growing dominance of entire industries (in the MicroSoft case, the software industry - allegedly, perhaps the entire internet). Whether or not MicroSoft's actions were illegal, the potential for holders of at least some copyrights to effect huge growth in revenues over rather long periods of time is very much a feature of those theories. Setting aside the antitrust considerations for the moment, what reasonable person could rule out a company such as MicroSoft basing its corporate strategy on a seventy year model for vast exploitation and extension of particularly valuable and basic copyrighted materials. Indeed, isn't that the kind of thing so much of the software industry is afraid of? Such huge returns, even fifty to seventy years out, might be substantial in today's dollars.

Further, does anyone seriously believe that the incentive effects on all forms of copyrighted material are going to be even roughly similar? The Church of Scientology copyrights its gnostic religious materials. Doesn't it seem reasonable that future L. Ron Hubbards (the founder of that Church) might very well consider the additional 20 years important if the point is to construct a Church that will grow to a huge importance over, say, 100 years - as Scientology now seems to be doing? Suppose one thought that one's new religion would expand gradually for fifty years after one's death and then really take off? Wouldn't that extra twenty years really make a difference? Doesn't the Vatican strategize in terms of centuries? To cite another quasi-religious example, consider how intensely the Freud Archivesstill struggles to control even access to his papers.

Similarly, Arnold Schoenberg used to say towards the end of his life: "In fifty years even the mailman will be whistling my tunes." Mahler expressed similar thoughts about how long it would take his music to come into its own. And Mahler's evaluation of his music's future was essentially correct (the prospect of hearing my mailman whistling at least later Schoenberg, I confess, is still unlikely). Mahler died in 1911. Much of his music had been performed during his life, but most of it was controversial and underappreciated. His work never completely fell from the repertory, but only really began to come into its own and be fully appreciated by the broad audience it deserved and he desired until the 1960's, fifty years after his death - especially in the United States, where it blossomed under the inspired championship of Leonard Bernstein. In short, Mahler seems to have lived and written music expressly for a future beginning a half-century after his death - and his hope came true. But the opponents of the Bono Act seem to deny that such expectations are meaningful to society.

We know at least some great music was created in specific contemplation of its performance in the time period captured by the Bono Act, although not with the expectation of financial return. How is the Supreme Court supposed to determine how much other art has been lost because the needs and thinking of such exceptional artists go far beyond what happens "the minute they completed their work" (as the New York Times charicatures the issue in its editorial discussed below)? Are the Justices going to pull out their Constitutional crystal balls, or think themselves from the comfort of their Washington chambers into the mind of the next Mahler who might or might not write a note without copyright protection for that very period of time he or she is thinking about? If they do, maybe the Justices could drop a footnote explaining how they did it to the rest of us.

Let's face it: Infinity is very large even after being discounted from seventy years in the future. And - as an additional complication - the infinities affected by the copyright laws are not only financial, as noted below.

In short, given the current state of economic and mathematical understanding of the copyright monopoly, the Court would be very foolish indeed to base any abrogation of the Bono Act on any argument which relies on an assumption or calculation of how important that marginal twenty years added by this Act to that monopoly might be.

Some of these arguments are articulated by this New York Times editorial. The Times waxes poetic in its own dry way with: "No one but a blockhead writes except for money, Samuel Johnson said, and those who subscribe to that view would be unlikely to write if, the minute they completed their work, others could copy it with impunity. But it is a highly reluctant artist — and one with extraordinary concern for his heirs — who will not create unless his work is protected for a full 70 years after his death." In addition to the economics above, somebody needs to explain to the Times that the Copyright Clause did not enact Mr. Samuel Johnson's social cynicism. And wisely, too, because copyright is as much about an author's or artist's ability to control the use of a copyrighted work as it is about money. Yes, the New York Times is in the business of extracting money from copyrighted materials - but that is not what every author and artist cares about the most. For many authors and artists - for example, most bloggers who write for free - the important thing is to be able to point to something others have read and understood and say, if only to themselves, I created that. Is it only a "highly reluctant artist" who might care about who controls his or her artistic output 50 to 70 years after death? I would have thought the higher class "artistic temperment" was prone to exactly that kind of thing. If one's aim is grandiose - say to remake the way society hears music and to establish a "new tonality," as was the case with Arnold Schoenberg - control of one's works in the period beginning a half-century after one's death matters. Indeed, Schoenberg famously wrote: "I have discovered something that will ensure the supremacy of German Music for the next hundred years." In short, that expanse of time seemed to matter to him.

In the sense of understanding the full purpose and structure of copyright, the Times could not be more wrong.

But it gets worse.


To the extent one might hope that the Court will seriously consider the additional incentive effect created by the twenty-year extension, the fact is that estimating the incentive effect is an economic calculation of absolutely huge complexity which is not well understood at this time - and the uncertainty of the correct interest rate is only a small part of that. For example, consider the relatively benign question of whether the Amazon used book site advances or impairs the economic interests of authors - a question which is simply a special case under special circumstances of how the incentive effects of the copyright monopoly are realized in practice. That is, the Amazon question is in a sense a small portion of the overall incentive question the Court is being asked to consider. As discussed in a prior post, the Amazon question alone unleashes almost inconceivably complex and subtle mathematical and economic considerations. Are the Justices boning up on their Nash equilibria skills? [If they are, they’d better not start by seeing that movie.]

The copyright laws, by their nature and legislative and constitutional intent, create limited market power where they create value for the author. That means that at least in the cases in which copyright is valuable - such as, say, Harry Potter books, the market intentionally created by Congress and specifically contemplated by the framers of the Constitution will be one of imperfect competition (yes, it appears to be true that Harry Potter has market powers). As Virginia Postrel has pointed out with her customary astute economic insight, the fancy game theory that is now being employed in academic circles to understand "imperfect competition" would be a rather unstable foundation for legal principles in its current state - still less as a guiding light in a Constitutional case overturning an act of Congress. As far as I can determine, none of that economics or mathematics has been included in the briefs to the Court - but if the Court wants to understand how an extension of the copyright monopoly might affect the thinking (that is, incentives) of authors such as a MicroSoft or a Mahler, the Court will have to figure all that out for themselves (I hope the committee is reserving nine Nobel Prizes) - or ask for additional briefing. Even if those heroic tasks could be accomplished, what happens to the Constitution next year if those academic economists and mathematicians, settling pillows by their heads, should say, "That is not what I meant at all, that is not it, at all."

Is the Court supposed to hold then that the Framers have changed their minds?

Other Arguments

Of course, the Bono Act's critics have other arguments, not based - or not explicitly based - on any evaluation of the additional incentive value created by the marginal twenty years added by this Act to the copyright monopoly.

And all those other arguments that have been presented to date will also fail.

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The War Resolution And One Election Issue

Congress has passed a resolution allowing the President wide latitude in attacking Iraq.

The vote in the House was 296-133. Only 81 Democrats voted yes, with almost twice that number (126 Democrats) voting no. Six Republicans and one independent also voted no.

The vote in the Senate was 77-23. Only 29 Democrats voted yes, with almost as many (22 Democrats - 21 admitted Democrats plus "independent" Jim Jeffords, who votes with the Democrats within the Senate and on whom they rely to maintain power at least until the coming election) voting no. One Republican voted no.

There will, of course, be many consequences of this Congressional act. One of those consequences should be voters taking a very hard look at the issue of which party controls in which house of Congress. The nearly-late Senator Torricelli tried to make a big deal out of this argument in his failed bid to save his candidacy. It is worth the voters' noting that a very large majority of the Democrats in the House voted against the resolution, and that although Senate Democrats performed better, their votes were almost certainly skewed in many cases towards the President only by the looming election.

For example, one would have to be politically comatose to think that Senator Daschle - who eventually voted for the resolution after engaging in long term trench warfare in the Senate and the media to defeat it, even opening a serious rift with House Minority Leader Gephardt over the issue - subjectively supported the text for which he voted. And his recent behavior almost makes it certain that the Senator would not have voted the way he did but for fact that, as Senate Majority Leader, his vote against the resolution could have affected the fast-coming election - especially in the case of his protege, South Dakota Senator Johnson.

Do the voters really want either House of Congress controlled by the Democratic Party, whose grasp of national and world security is so weak? I don't think so.

So while the resolution may not strongly affect how voters view individual members of Congress, it seems to me that this vote may and should have seriously weakened the force of the argument that voters should vote for a Democrat in order to help secure Democratic control of either House of Congress - the very argument on which Senator Torricelli, for example, was last seen to rely before his recent extinction.

UPDATE: Best of the Web notes:

Of the 13 Democratic senators who face the voters Nov. 5, only four--Illinois's Dick Durbin, Michigan's Carl Levin, Minnesota's Paul Wellstone and Rhode Island's Jack Reed--voted against the resolution. Of those four, only Wellstone faces a serious challenge. ... In addition, every senator whose state was hit in the Sept. 11 attack--including New York's Chuck Schumer and Hillary Clinton--voted "yes."

Best of the Web is a correct as the force of the looming election on these votes is obvious.

And let's not forget that his vote here may be the last straw for the egregious Senator Wellstone.

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Thursday, October 10, 2002

Another Second Amendment Thought

A prior post wondered whether there might be some research out there indicating how many households in late 18th and early 19th Century America owned militia worthy firearms, not just some gun (as Bellesilles' now-debunked "research" purported to do). This might be significant under what may be an emerging interpretation of the Second Amendment as creating an individual (perhaps even individual and fundamental) right with respect to militia type firearms.

Since Professor Jim Lindgren of Northwestern University wrote that wonderful article referenced in the prior post, I asked him this question, and he was kind enough to answer:

The best work on militia weapons produced for muster is a forthcoming article by historian Robert Churchill in the William & Mary Quarterly. The best data available is a few door-to-door surveys done in particular New Hampshire and Rhode Island towns in the late 1700s. They show that gun ownership (here presumably of militia-type weapons) was a bit higher than the New England probate records would suggest for the same period (the door-to-door surveys of the militia suggest that roughly 60% were armed with guns that are presumably for militia use, since this is the purpose of the surveys).

When a war broke out, that would obviously leave a substantial number of the militia without military quality weapons.

I'm not sure which way a 60% ownership rate cuts within the parameters of that emerging Second Amendment approach noted above, but it seems pretty high to me given the cost of such high grade weapons (three times the cost of a "fowler"). In any event, it looks like it's worth keeping an eye out for that William & Mary Quarterly.

Maybe Glenn Reynolds can persuade the W&MQ to post the article on line, since he's been so good at that with Yale.

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Parallel Evolution

In a prior post, the Man Without Qualities noted: "Among the most vicious forms of incivility is simple failure to acknowledge people who deserve to be acknowledged."

"Civility" is a political concept if it is anything, but there may be a deeper connection between civility and politics than this. One may start from the commonplace observation that some people maintain their self-image as "refined" or "good" or "civil" by simply ignoring that which simply may not be ignored. The connection between this aspect to civility and politics, especially the pathological brand of "civility" that does not accept that failure to acknowledge people who deserve to be acknowledged is grossly and broadly uncivil, is suggested - at least to me - by this passage from an excellent essay of Ron Rosenbaum (thanks to The MinuteMan):

The analogy that occurred to me grew out of a conversation I had several years ago with the philosopher Berel Lang, author of Act and Idea in the Nazi Genocide.... Mr. Lang is an extremely thoughtful and meticulous thinker on the question of degrees of evil, and the role of intentionality in determining them. He was speaking about the question of whether one could say there was "a history of evil"—whether Hitler represented a new fact, a new landmark in that history, and if so, what the next step might be.

I suggested the "next step" might be Holocaust denial, because the deniers had found a diabolical way to twist the knife, compounding the pain of the survivors by negating and slandering the memory of the murdered.

Mr. Lang demurred, because he had his own notion of what the next step in the history of evil might be. The paradigm for it, he told me, was the postwar career of Martin Heidegger, the Nazi-friendly philosopher beloved to distraction by postmodernists (and Hannah Arendt).

All of whom apologized for him, despite an increasingly damning series of revelations that disclosed his toadying to Hitler’s thugs in order to attain professional advancement, hailing Hitler’s Reich as the ultimate synthesis of politics and his philosophy.

But that wasn’t what made Heidegger a new chapter, Mr. Lang said; it was his astonishing postwar behavior. After everything came out, after it was no longer possible to deny at least post facto knowledge of the Holocaust, nothing changed for Heidegger. He felt no need to incorporate what happened into his philosophy. "His silence," Mr. Lang said, "it wasn’t even denial. For him, it wasn’t important! It wasn’t important …. Now if you ask which of them is worse … the Revisionists [Holocaust deniers] deny it occurred, but their official position, at least, is that if it occurred, it would have been wrong. But Heidegger knows it occurred, but it’s just not important—it’s not something to distort history to deny. For Heidegger, this is not history to concern oneself with."

Not history to concern oneself with ….

Here’s the analogy: Heidegger’s peculiar neutrality-slash-denial about Nazism and the Holocaust after the facts had come out, and the contemporary Left’s curious neutrality-slash-denial after the facts had come out about Marxist genocides—in Russia, in China, in Cambodia, after 20 million, 50 million, who knows how many millions had been slaughtered. Not all of the Left; many were honorable opponents.

But one must keep in mind that just identifying something as uncivil in some context does not immediately lead to the conclusion that it is somehow or somewhere forbidden.

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Wednesday, October 09, 2002

Big MoBot Project

Surely some enterprising softare engineer can combine the technology powering The Prior-Art-O-Matic with the insights captured by The Immutable Laws of Maureen Dowd to create software which, when fed daily wireservice reports, produces a perfectly acceptable Maureen Dowd column simulacrum - along the lines of a Chomskybot for the next generation.

The "Big MoBot!"

It is important to understand that at this point creating the Big MoBot is an engineering problem, not a problem in science.

That's the same understanding that gave the Manhattan Project its edge over the German atomic bomb effort. Thank God for that.
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O, Martha IV

In a prior post back in August, the Man Without Qualities noted a suit filed against Martha Stewart by a shareholder in her own company - Martha Stewart Living Omnimedia - alleging that she dumped shares of her own company right after selling her ImClone shares. The theory of that suit was that Ms. Stewart knew that her ImClone stock sale - even if it was legal and not based on insider information - was so inherently suspicious that it was bound to attract attention and throttle the stock price of Martha Stewart Living Omnimedia. The public, of course, did not know the facts about her ImClone stock sale. I noted:

It's hard to argue with the allegations in these complaints. If any evidence can be found that Ms. Stewart understood that her ImClone trades would tank her MSLO stock before she sold it, these new allegations could make Ms. Stewart's direct ImClone trouble look positively pastel.

Well, now there is this report:

Federal prosecutors have widened their investigation of Martha Stewart to include whether her public statements about why she sold ImClone Systems Inc. shares, if proved false, were intended to boost the price of her own company's stock and constituted securities fraud, people familiar with the matter told The Wall Street Journal.


Pastel seems to be it this season.
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Bill Simon, RIP

Somebody at the California Organization of Police and Sheriffs is a very poor cop. And Bill Simon appears to be a much richer source of "suicide cells" than the modest worms who contributed so much of themselves to the work of current Nobel Prize winners Sydney Brenner, H. Robert Horvitz and John E. Sulston, who were awarded the Prize for their discoveries in the area of programmed cell death. Mr. Simon and COPS seem to know how to walk that walk.

With so many real and highly questionable transactions in Gray Davis' past, why did Simon have to pick some unverified, unresearched mess?
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A Liturgical Detail?

In the dust ups over the celibacy requirement for Catholic priests, one often sees and hears claims that other churches DO allow their priests to marry - most notably the Greek Orthodox Church.

But DOES the Greek Orthodox Church allow its priests to marry?

The answer is more complicated than the mainstream press presents. The short answer is:

NO. Greek Orthodox priests are NOT permitted to marry.

However, married men MAY routinely become Orthodox priests, but they may not advance in the ranks to become bishops. Moreover, under Orthodox rules, a celibate priest cannot marry after ordination, and a noncelibate priest cannot remarry and remain a priest, even if his wife dies.

All that being said: About 91 percent (575 of 630) of active Greek Orthodox priests in the United States are married, and it is "very rare" for Greek Orthodox clerics to resign.

One consequence: Some Catholic reformers advocate that current Catholic priests be allowed to marry. Whether or not that is a good idea, such a reform would go well beyond Orthodox tradition.

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Tuesday, October 08, 2002

That's Really Old

The F.A.Z. reports:

Journalists last week received their first opportunity to inspect the site where an Early Bronze Age disc with gold foil ornaments - perhaps the oldest cosmological picture ever found - was abruptly ripped from the earth three years ago by local looters.

The archaeological sensation was unearthed in a forest near the village of Nebra in the eastern German state of Saxony-Anhalt. The site was located after one of a band of shady treasure hunters confessed where the artifacts had been unearthed. Seven persons are currently involved in a court case surrounding the illegal excavation and selling of treasures that belong to the eastern state.

The disc is around 30 centimeters in diameter and weighs approximately 2 kilograms. It is thought to be around 3,600 years old.

Actually, it's in large part a sad story.
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Many people seem to think of harsh name calling as a kind of paradigmatic "uncivil" activity.

Is using the names of people one does not care for to create highly unflattering words or to describe highly unflattering concepts, and urging others to do the same, "civil" - in any arena or at any age?

On the playground? In school? In the office? In politics?

Is making up unflattering nicknames for people one does not care for, and urging others to do the same, "civil"?

I, personally, think that in most cases these are uncivil actions - at least where the names or words are strong. Calling someone a "varmint" is not, in my book, uncivil. And, obviously, playing with someone's name in fun or affection, or even to tweak someone's vanity, can be highly civil.

Does it matter? Or does it just go to show that the calls for "civility" one hears from time to time are often wrongheaded or even made in bad faith? Are the benefits of civility oversold?

Why does it seem, at least anecdotally to the Man Without Qualities, that people who seem highly uncivil are at least as likely to call publicly for "civility" as those who are civil?

Is it that my experience has just produced an unrepresentative sample ? Is it that most people want others to treat them with civility - but uncivil words and actions prompt others to respond in an uncivil way? Is this perhaps why so many uncivil people seem to demand civility? Or do they? And it also seems to me that many - perhaps most - calls for "civility" savor uncomfortably of effort to blunt legitimate criticism (in the way a noise control ordinance might be invoked to force a protestor to turn down the megaphone in the park) or, worse, to legitimize ad hominen attacks on the supposedly "uncivil" actor.

How many readers have ever been tempted to demand that someone else stop shouting and be civil, only to realize how absurd that would be since the other person is speaking by telephone from a thousand miles away? I have.

Consider the concept of irresponsible challenging of a sitting President's handling of foreign affairs in an attempt to focus voters on an exaggerated, gloomy version of domestic affairs. That's a pretty nasty concept. But would it be "uncivil" to concoct a word intended to describe this concept out of, say, Senator Daschle's name? Would that kind of thing advance the debate or our understanding? Does any of that matter is determining whether the act is "uncivil"?

It certainly is civil to say that one thinks Senator Daschle is (or was) doing this, and to express the opinion that the Senator should therefore not be returned to his office at the next election.

But does it follow that mangling his name to identify him with this concept is "civil"? This kind of thing has been done to Quisling's name - which is often not even capitalized now. But Senator Dashcle is no quisling, and his activities do not even come close to the destructive and unpatriotic nature of Quisling's. Does it matter in determining whether this kind of name appropriation is "civil" if the name is associated with a particularly bad activity? That is, does civility require that only people who do really bad things may "lose" their names to the general language?

Perhaps a little like a trademark owner losing exclusionary rights to the mark?

But then what about Florence Nightingale? Einstein? Their names are often used to express unflattering thoughts about people other than Florence Nightingale and Albert Einstein, so that's a distinction. (He's no Einstein! or Hey, Einstein!) Is it one that should make a difference?

I'm not sure that "civility" is concept - or a vocabulary word - about which there is as much agreement as first appears to be the case.

For example, I'm fairly sure of this: Among the most vicious forms of incivility is simple failure to acknowledge people who deserve to be acknowledged. This shows up dramatically where people interact physically (at parties or town hall meetings, for example). But it is also true more generally.

As Oscar Wilde put it: "The only thing worse than being talked about is NOT being talked about."

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Monday, October 07, 2002

And Now the Rebuttal

A prior post linked to the Cato list of reasons not to invade Iraq.

NRO pretty much undoes each of the Cato reasons.
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The Last Katherine Harris Post

Prior posts have addressed the Florida election law involved in accusations made in much of the media that Katherine Harris failed to comply with the Florida "resign to run" statute. As noted in those posts, this exact issue was considered in Florida court litigation in which Ms. Harris prevailed.

The decision of the Florida Circuit Court that cleared the way for Ms. Harris' appearance on the Florida ballot can be found here (link e-mailed by a helpful reader).

The court's statement of facts includes a rather precise description of the "notice of resignation" misreported by much of the media as a "back dated resignation," thereby confirming that all reports that Ms. Harris submitted a "back dated resignation" are just wrong. The whole decision is interesting (as election law goes). The kernel of the court's holding is:

Based upon the undisputed facts of this case and applying well established legal precedent, this Court finds that Harris did not comply with the mandatory resignation requirement of [the provision of Florida election law requiring a state officer to send a resignation]. However, her non-compliance was statutorilly foregiven by operation of [the provision of Florida election law automatically effecting resignation of a candidate who runs for federal office]. She has qualified for the primary election and shall not be removed as a candidate for the election to the 13th Congressional seat.

The decision also briefly reviews the history of state "resign to run" statutes and their periodic friction with the federal Constitution, especially provisions setting qualifications of federal Representatives and Senators - the same provisions that were involked by the Supreme Court to overturn state term limit laws.
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Today at the Supreme Court

Here's a list of today's Supreme Court orders. It's not completely transparent, but there doesn't seem to be anything obviously arising in the New Jersey ballot case. But one of those opaque case names in the lost of Cert Denied's ...?

UPDATE: The Supreme Court refused the appeal. Although the particularly incompetent manner in which the New Jersey Court manhandled this case made it more meritorious as an appeal than it should havre been, I think the Supreme Court probably did the right thing anyway.
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Ends and Means

Democrat Frank Lautenberg is reported to have a slight lead over Republican Douglas Forrester in the New jersey Senate race.

But a majority of people polled said the bid to substitute candidates in the race was unfair. Which may help explain why the Democrats showed no interest in having the New Jersey legislature change the election laws, but went instead to the unelected but compliant and activist New Jersey Supreme Court. Given the emphasis (short of a plenary grant) of Article I on the state legislature having the right to determine the "time, place and manner" of elections - this development may be Constitutionally significant.

In the mean time, it is now NOON in Washington - and still no reported word from the Supreme Court as to whether they will even accept the appeal.

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Sunday, October 06, 2002

Biblical Terrorism

The Volokhyries are stretching things to suggest that Moses was a terrorist - at least if one takes the Bible seriously as truth. People acting under real, personal and express instructions from GOD are not "terrorists." That's probably one reason so many terrorists have recently started thinking and saying that they, too, are acting under personal and express instructions from God.

The Devil is in the delusion.

However, while Moses is not a good candidate for Biblical terrorist, some of King David's exploits during his exile from Israel were rather on the frisky side.
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Psychoanalyzing the Supreme Court Some More

Linda Greenhouse serves up another helping of her signature dish on the Supreme Court, beginning with this choice morsel:

IMAGINE going to work every day with the same eight people: laboring together on joint projects, eating together in a small private dining room, huddling together for hours every week behind a locked door that discourages all but the most urgent interruptions. The same eight colleagues. For nine years.

One gets the impression that the Supreme Court spends its days in one or two small, airless rooms in the basement of their marble palace, hour after hour, day after day. The pressure to get along with one's colleagues is unbearable! Anyone would cave! Everyone thinks it's a choice position - but it's really HELL ON EARTH! No wonder the Justices almost always buckle under the strain, stop voting in accordance with their own, disinterested, independent view of what the law is (or should be) - and, according to Ms. Greenhouse, JUST VOTE IN PATTERNS AND COALITIONS SO AS TO GET ALONG WITH AT LEAST SOME OF THOSE OTHER EIGHT OLD PEOPLE!

Consider a somewhat different - and, I believe, far more accurate - version of Ms. Greehouse's lead:

IMAGINE going to work every day to a marble palace, cushioned with the thought that you have life tenure with an irreducible salary by the specific terms of the United States Constitution, coupled with about the best health benefits the mind of modern man can muster, and a job whose prestige cannot be exceeded anywhere in the world. Your large, elegant and well appointed chambers are decorated in your sole discretion and staffed by intelligent people- most of all, by a constantly-changing cast of three or four law clerks chosen each year by you, personally, from the best and brightest graduates of the best law schools in the country. Aside from their almost incandescent intellects and energy, these clerks funnel to you in a most delightful, personalized fashion, the latest thinking of the legal academics who trained them. They are, among other things, a virtual insurance policy against your ever making a truly stupid mistake in anything you write. You daily receive requests to speak on topics of your choice from famous places all around the world, all expenses paid.

When you consider dissenting from your colleagues, you snuggle into your recollection that two of your predecessors thought by many to be among the greatest jurists of the 20th Century - Holmes and Brandeis - were known as the "Great Dissenters," and routinely signed their names to lonely dissents that became the law only decades later. Your Court is headed by a Chief Justice, William Rehnquist, who for many of his first years on the Court was often a singular and repeat dissenter in many controversial cases - and now has a distinct possibility of being considered by history as one of the nation's great Chief Justices despite the harping of his critics.

When Court is in session, you spend just a few hours each week in private with the other Justices, as votes are taken and cases assigned, and of course you sit in the public courtroom for more hours listening to cases and controversies, during which time you communicate little with the other Justices on the bench. Indeed, if you are Justice Thomas, you almost never say anything to anyone during this court time - you just listen attentively. You may or may not take meals or snacks from time to time in the small but elegant dining room. Your "joint projects" are rarely more than either writing a draft opinion which you send to your colleagues for written comment, or your receipt of one of their drafts - there is never even an opportunity for personal, face-to-face acrimony.

The same eight colleagues. For nine years.

What bliss! I dare say under such conditions most people wouldn't give a fig if a single one of their colleagues ever agreed with a word they wrote. Can one imagine conditions that would reduce the felt need to cooperate further than these?

Ms. Greenhouse also writes:

"A court that sits together for a long period of time is more likely to develop stable coalitions," Professor Merrill said, "and those coalitions are likely to grow in strength over time" and to "evolve cooperative strategies." Within the dominant coalition, there develop "dense bonds of reciprocity" — a greater willingness to compromise in order for the group to speak with one voice. He said that may account for the increased number of solid 5-to-4 decisions and the declining number of fractured plurality opinions in which no one speaks clearly for a majority of the court.

How can it not be true that "A court that sits together for a long period of time is more likely to develop stable coalitions" - whatever the heck this is supposed to mean? If the make up of a court (or any group) is not "stable" for a long period, then how could the coalitions in that make up be "stable"?

And nothing is added to the original assertion by the superfluous squib "and those coalitions are likely to grow in strength over time" and to "evolve cooperative strategies." Obviously coalitions (assuming they exist on this Court) are likely to grow in strength over time - in what other way can they or anything "grow in strength" but over time? Conversely, coalitions are also likely to shrink in strength over time. For example, former Chief Justice Warren Burger helped get his old Minnesota buddy Blackmun on the Court, and for years their votes were so similar that they were known as the "Minnesota Twins." Then Burger drifted right (he concurred in Roe v Wade, for example, and later disavowed it) while Blackmun drifted into a distinct if eccentric left niche. Then there was the famous "switch-in-time-that-saved-the-nine," where a conservative bloc broke up after dismembering much of the original "New Deal" in time to disgrace President Roosevelt's attempt to "pack" the Court (a break-up, by the way, demonstrably not precipitated by the election results or the packing attempt, contrary to much urban legend). If Ms. Greenhouse or Professor Merrill want to say something meaningful, then let them opine as to whether "coalitions," once formed, are more likely to strengthen or weaken over time under whatever conditions apply. But I very much doubt if such an assertion could be even formulated in a way that isn't risible. Which may explain the opaque phrasing actually chosen by Ms. Greenhouse and Professor Merrill.

Similarly, what is a "coalition" other an a group of people engaged in "cooperative strategies?" If Professor Merrill is positing a strange kind of "coalition" that at first has no "cooperative strategy," but later "evolves" some, his meaning certainly isn't conveyed by Ms. Greenhouse. Is the point supposed to be that once a "coalition" forms with respect to some topic, then it tends to spread to others? So if some Justices see eye-to-eye on, say, evidence rules, we should expect them to pretty soon be trading away their votes in, say, states' rights cases? That's a pretty strange and inflamatory model of the Court - and it surely is not well articulated by Ms. Greenhouse here.

In short, this entire portion of the above paragraph is near-tautology masquerading as an insight.

While the first part if this paragraph resides in territory a philosophically minded realtor might call "tautology adjacent," the rest of the paragraph is nearly delirious. What is a sinister "dominant coalition" supposed to be? Is this something other than a frequent Court majority? And what evidence is there for the existence of "dense bonds of reciprocity" within the "dominant coalition?" Indeed, what is the evidence for any of this speculation with respect to this actual United States Supreme Court.


Ms. Greenhouse even seems to be aware of the high nonsense factor here, since in the very last paragraph of her article she admits that all the preceding speculation exists "with no laboratory experiment available to test any hypothesis about the impact of change or lack of change..." So very true. And that is why her article is so very meaningless. Too bad she then ruins even that glimmer of intellectual honesty with an uncharacteristically absurd quote from Justice White, apparently taken out of context.

Even the one rather obvious thing that does happen when people - or at least intelligent, sensitive people like the Justices - spend a lot of time around each other -specificlly, people get a better and better idea of how each other think, and a better and better idea of what arguments will play with one or the other - is recast in this article as something exotic and savoring of "insider knowledge":

One of the most important commodities for any justice is information. In staking out a position, drafting a proposed majority opinion or deciding whether to add a new case to the docket, each justice needs an idea of how the others will respond. "The accuracy of the estimates of positions on potential issues that each justice has about the other eight justices will differ significantly on a court in flux than a court in stasis," Professor Merrill said. "Justices on a court in flux will make more `mistakes' about the positions of other justices than will the justices on a court in stasis."

One would also probably get a good idea of which Justice gets on somebody else's nerves. But then, none of that sounds as sinister, gnostic and cabalistic as "dominant coalitions" and "cooperative strategies" "information as a commodity" and all the rest of it.

And then there are the flashes of Ms. Greehouse's own rather obvious political agenda, as with this:

It may also, in his view, account for the court's lock-step march, virtually since the start of the second Rehnquist Court, in the direction of increased autonomy for the states within the federal system. Professor Merrill is not the only one to observe that the court's latest decisions on sovereign immunity are so far afield from the Constitution's textual treatment of the subject as to make it implausible that such a devout textualist as Justice Antonin Scalia could actually be in whole-hearted agreement. But it would be apostasy at this point for any one of the "federalism five" to go over to the other side.

Let us take as received wisdom that a reporter who cannot restrain herself from characterizing a set of Court decisions as "the court's lock-step march" is not exactly a dispassionate observor. And, while it is certainly fashionable in some academic quarters to criticise the direction fo the Court's states' rights decisions, there is a notable lack of alternative approaches other than the always-popular-on-the-left proposal to just let the federal government take over the states if that's what Congress wants. Ms. Greenhouse's unsupported assertion that "it would be apostasy at this point for any one of the 'federalism five' to go over to the other side," which patronizingly suggests that these Justices think their opinions are wrong but just refuse to change their minds is just embarrassing and silly - as is (given her highly personalized position in this article and that of Professor Merrill) her description of Professor Merrill as "a former Supreme Court clerk" with no mention of which Justice he clerked for. By Ms. Greenhouse's own lights, isn't it relevant whether Professor Merrill didn't clerk for one of the "federalism five?" She knows - why doesn't she share? Doesn't she realize that one of the most important commodities for any reader is information?


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Who Needs Snopes When You Can Pick Up Any Dictionary?

The New York Times:

[Matt] Drudge escalated his attacks last week after [Barbra] Streisand gave a speech in which she claimed to be quoting Shakespeare's Julius Caesar:

Beware the leader who bangs the drums of war
in order to whip the citizenry into a patriotic fervor,
for patriotism is indeed a double-edged sword.
It both emboldens the blood, just as it narrows the mind

The problem, as Mr. Drudge gleefully pointed out, is that Shakespeare didn't write it., a site that debunks so-called urban legends, has identified the quotation as an Internet hoax, which entered circulation in late 2001.

Capsule Biography of Shakespeare:

Shakespeare ... continued to write until his death in 1616 on the day of his 52nd birthday.

Merriam-Webster Online:

One entry found for patriotism.

Main Entry: pa·tri·ot·ism
Pronunciation: 'pA-trE-&-"ti-z&m, chiefly British 'pa-
Function: noun
Date: circa 1726
: love for or devotion to one's country

UPDATE: Stuart Buck notes his sense that the phrase "the mind has closed" has an rather modern sound to it.

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