Man Without Qualities

Saturday, December 07, 2002

Individual, Not Necessarily Fundamental

How Appealing has an interesting post that takes a blogosphere-contrarian view approving the U.S. Court of Appeals for the Ninth Circuit opinion in Silveira v. Lockyer that ruled, in an opinion by Circuit Judge Stephen Reinhardt, that the so-called "collective rights view" of the Second Amendment is the correct one.

The Man Without Qualities does not agree with How Appealing that Judge Reinhardt is brilliant, or that his opinion is persuasive or correct - but I do believe that How Appealing's conclusion "that the Ninth Circuit's understanding of the Second Amendment will be affirmed" is very likely - perhaps probably - correct. But I think this has more to do with the fact that the "individual rights" proponents have not really done their homework and legwork to prepare the public and the judiciary for what is, in fact, a radical revision of the longtime common understanding of Second Amendment precedent - even though that common understanding is wrong and does not reflect actual Second Amendment precedent. Indeed, what appears to be a pretty serious error on Mr. Bashman's part in presenting the competing views of the Second Amendment actually demonstrates how poorly the "individual rights" contingent has tilled their field.

Mr. Bashman writes that that the "Second Amendment to the U.S. Constitution guarantees to individual private citizens a fundamental right to possess and use firearms [is] an understanding known as the 'individual rights' view" and that "the Ninth Circuit's decision perpetuates a conflict with a recent ruling of the U.S. Court of Appeals for the Fifth Circuit that stands as the first ever federal appellate court ruling to endorse the individual rights view of the Second Amendment." Mr. Bashman is a highly sophisticated, intelligent and knowledgeable person - so perhaps is correct. But I do not believe the Fifth Circuit's opinion is fairly read as even reaching the question of whether the right that Court holds exists under the Second Amendment is a fundamental right.

To view the Second Amendment as creating a right that inures to the individual does not by itself imply that the right is fundamental. For example, the Seventh Amendment right to a civil jury inures to the individual - but is definitely not fundamental. As a consequence, for example, this Seventh Amendment right only binds the federal government - and is not "incorporated" through the Fourteenth Amendment to bind the States. Whether the Second Amendment creates a fundamental right as well as a one that inures to the individual would also be a rather serious factor in determining the standard and scope of review a court will take in evaluating whether particular legislation violates that right.

The Fifth Circuit did hold that the Second Amendment does not create a mere "collective right" - it creates a right that inures to the individual. In that sense the Fifth Circuit upholds the "individual rights" view of the Second Amendment, but the ease with which the Fifth Circuit allows the government to limit this right does not suggest that the right is fundamental:

"We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights."

Whatever else we know about the meaning of the Second Amendment, one thing is absolutely clear: The Second Amendment did not originally bind the States - and no amount of historical analysis is going to suggest that it did - simply because NOTHING in the Bill of Rights bound the States. Whether the Second Amendment should now be construed to bind the States will turn on the dubious "incorporation doctrine" which arises out of the 20th and 21th Centuries' reimagining of the Civil War Amendments.

Why did the "incorporation doctrine" leave the Seventh Amendment behind while entirely new rights - such as the right to privacy and the right to "choose" were created out of thin air? Why was the ringing language of the Ninth Amendment all but excised from the Bill of Rights? Why has the Tenth Amendment been construed as a tautology? Who knows? But the Supreme Court's cases and reasoning on such matters as well as the musings of legal academics are mostly dross supported by highly political arguments and circumstances.

It was always naive and preposterous for the proponents of the "individual rights" view to hope or think as they did that the courts could first be persuaded that the Second Amendment creates a right inuring to the individual and then, as a kind of afterthought, that the right must be "fundamental" because most of the rights found in the Bill of Rights are "fundamental." The Second Amendment poses unique (but not insurmountable) issues not present in connection with, say, the First, Fourth, Fifth, Sixth, Seventh or Eighth Amendments if it is applied to the States through 'incorporation" - as opposed to the federal government. The purpose of the Second Amendment is to facilitate a "well regulated militia." Even if the "militia" is essentially construed to be every adult individual, what entity is supposed to do the "regulating" of this militia if not the States? The failure of the "individual rights" proponents of the Second Amendment to address both the real world dynamic of modern constitutional law or the full scope of the "incorporation doctrine" issues raised by their arguments was a very serious conceptual and strategic mistake.

And - in my opinion, which might be wrong - that failure, more than anything else, makes How Appealing's conclusion highly credible.
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UPDATE: Augusta Anyone? Or Perhaps The Head Of Caesar On A Platter? The Times reports that a final determination has now been made to run the two columns. The Times now "explains" that: "one column, by Dave Anderson, about the Augusta National Golf Club's refusal to admit women, gave the appearance of unnecessary intramural squabbling with the newspaper's editorial board; the second, by Harvey Araton, which also dealt with the Augusta issue, presented problems of structure and tone." But none of those "problems" has abated. Mr. Anderson's column will still squabble if it ever did, and the structure and tone of the second piece is the same as it was. So why run these columns now? Indeed, the Times is specifically denying that content was the issue: Mr. Raines said: "Some of the commentary said, `It's wrong to censor opinions of columnists.' I agree with that. That's not what happened here." So what did happen here?

Surely the Times isn't suggesting that the tone and approach of its many prior Augusta items were wrong - only that their number may have been too high. And if it is true that the problem is that "By almost any measure, the paper's coverage of Augusta has shifted from overdrive to overkill," why run two more somewhat dated Augusta items now?

In other words:


Or is the Times actually saying it is going to run these two columns as their authors now know them? On the surface, that seems to be the case: "We have invited Harvey and Dave to resubmit the columns," Mr. Raines said. "In the conversations, they have been reassured that the subject matter and opinion content was not an issue." He added, "And they'll come in, and we'll publish them."

But it appears the Times still plans to edit the items: Mr. Raines said in another interview, a day earlier, that the reference to the editorial could have been easily removed. "That is what we should have done," he said, adding, "I have absolutely no problems with the opinion that Dave expressed."

And how else other than by some serious editing does one fix those nasty problems of structure and tone?
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Wrong Side of History

The "movement" opposing war with Iraq has a curious focus, as related by this item on CBC and elsewhere:

It isn’t a matter of groundswell support or sympathy for Saddam Hussein. Rather, the new anti-war movement zeroes in on the fear that any campaign against Iraq – especially the expected urban warfare on the streets of Baghdad – would imperil the lives of hundreds of thousands of Iraqi civilians.

Now it is surely true that any campaign against Iraq would "imperil" the lives of hundreds of thousands of Iraqi civilians.

But Saddam Hussien's regime already "imperils" the lives of hundreds of thousands of Iraqi civilians and, in fact, has been responsible for ending the lives of hundreds of thousands - possibly millions - of Iraqi civilians. A very substantial fraction of those innocent civilians were and are raped and tortured while being so "imperiled" and ultimately murdered.

But there is a big difference between the U.S. "imperiling" and Saddam's "imperiling" - the U.S. brand would end with the war ending. But Saddam will imperil, rape, torture and murder his people indefinitely and in ever-increasing numbers if he is not stopped.

So the antiwar movement's focus on eliminating "imperiling" of civilians should lead them to urging immediate U.S. war with Iraq.

The main arguments against war with Iraq are based on versions of international law - which is focused on the rights of states, not the safety of civilians. That focus on states' rights is a remnant of the European 17th Century influence on international law. Prior posts have pointed out that this influence should yield to the political insights of the 18th and later centuries that focus on individual rights. If it had, Iraq would have essentially no argument under international law or otherwise against military action to oust it’s hideous regime.

This antiwar movement seems to be quite literally on the wrong side of history.

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Friday, December 06, 2002

By The Way

Saddam Hussein's "Drop Dead Date" of December 8, is also The Feast Of The Immaculate Conception.

A Catholic Holy Day of Obligation.
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Augusta Anyone? Or Perhaps The Head Of Caesar On A Platter?

Mickey Kaus has a nice wrap up of the foolishness that has fallen out of the recent New York Times crusade against the male-only policy at the Augusta National golf club - especially the Times' decision to run the sports items previously spiked as inconsistent with the Times' imperious, silly and self-indulgent editorial position.

But with all respect to Mickey, I think one interesting question not asked here is: who ordered the retreat?

Is this an example of Howell Raines coming to his senses? Or is this an example of Howell Raines being sent to the woodshed? If the latter, whose hand held the switch?

And what to make of the Mnoosweek caveat: Late Friday, however, a Times spokeswoman said, “A final determination has not yet been made.”

Time (or Newsweek) and leaks will tell! Ah, we wait again for the words - drops of blood, really - so dreaded at the Times: "In a memo circulated to staff and subsequently made public, managing editor Gerald Boyd wrote ..."

And didn't Mr. Boyd write that these sports items were spiked for want of sufficient logic? Have they begun to sprout new logic? The Man Without Qualities loves logic the way Charlotte loved blood!

Tasty, tasty.
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How Many Personalities Can Fit Into Bill Clinton's Body At One Time?

Bill Clinton on September 27, 2002:

"[President Saddam Hussein's] got a very dangerous (weapons) program. We need to eliminate it," Clinton said on ABC's Good Morning America. ... "I think we ought to go to the United Nations. I think we ought to get a tough resolution which basically says we'll take Saddam Hussein up on his commitment to free and unfettered inspections. ... If he doesn't comply" Clinton said, a U.N. resolution should make clear that the international community "is authorized to use force. ... I think we can walk and chew gum at the same time. That is, I think we can turn up the heat on Iraq and retain our focus on terror. ... Let's don't relax our efforts. Let's intensify our efforts ... They (al-Qaeda terrorists) still have plans to target Americans within the United states and elsewhere and I think we should all support the administration and whatever has to be done to eradicate this network."

Bill Clinton on December 3, 2002:

What should the positions be? First, on national security, the facts are that the majority of the Democrats have been clear and virtually unanimous in the fight against terror, and in supporting defense increases. The majority of us stood up and said, yes, we do have to have unlimited and unambiguous inspections in Iraq and the ability to use force, if necessary, if those inspections and the mandate of the UN are not honored. That's what we wanted all along, exactly what has been done. We need to make that clear. We now have a homeland security department and that's fine. It'll probably do more good than harm.

What should our security position be? First of all, we ought to listen to Senator Graham. Al Qaeda should be our top priority, Iraq is important but the terrorist network is more urgent in terms of its threat to our immediate security ....

The inconsistency between the September and December Bill Clintons is not all. The December President Clinton also thinks that the Democratic Party should be "clear" that "we do have to have unlimited and unambiguous inspections in Iraq and the ability to use force, if necessary" and that Democrats "[f]irst of all... ought to listen to Senator Graham."

But Senator Bob Graham, D-Florida, is the leader of the Senate Democrats opposing the Administration on Iraq. Senator Graham was one of 23 Democratic Senators who voted against the resolution granting President Bush the power to invade Iraq. The Miami Herald reported that Senator Graham attempted to stop the Iraq resolution inpart by telling "his colleagues that ''blood is going to be on your hands' if action is not taken to foil terrorist attacks in America should the United States invade Iraq." Another report noted: "Hussein may have to be taken out at some point, Graham has said repeatedly, but now is not the time." The Senator insisted that "he voted against giving President Bush support for attacking Iraq because Middle Eastern and Central Asian terrorist organization pose a more immediate threat to the United States."Then, after the Administration pushed its resolution through the United Nations, Senator Graham said he was "pleased" because if "Saddam Hussein... rejects this international call, he will be bringing down on his country and his regime the full force of U.S. military power." The very same U.S. military power whose use the Senator had voted against giving to the President. Senator Graham also thinks that the United States should attend to North Korea and many other malfeasants before militarilly addressing Iraq.

And, although the former President also said that Democrats should tout their support for the Homeland Security Act, Senator Graham appears to have been one of the Democratic Senators seeking to stop that Act from reaching President Bush unless partisan questions regarding "how the employees will be paid and what benefits they will receive" were resolved to Senator Graham's satisfaction.

There is a scene in Isaac Asimov's "Foundation and Empire" series where the image of Harry Seldon appears on schedule to give a progress report - and the panic that results when everyone in the room realizes that Seldon didn't have a clue that the threatening crisis would occur. The DLC meeting at which Mr. Clinton spoke must have felt a bit like that.

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Thursday, December 05, 2002

Deck the What?

The Christmas carol begins "Deck the halls with boughs of holly," and everybody has heard it many, many times. Nevertheless, for some reason this old song includes many lines that are routinely misheard or misremembered, at least by a fair number of people. Common examples:

Misheard Lyrics: Deck the halls with parts of Molly
Correct Lyrics: Deck the halls with boughs of holly

Misheard Lyrics: Don B. Nowert's gray apparel
Correct Lyrics: Don we now our gay apparel

Misheard Lyrics: Join me now in gay abandon
Correct Lyrics: Don we now our gay apparel

Misheard Lyrics: See the blazing U. B. Forest
Correct Lyrics: See the blazing yule before us

Misheard Lyrics: Strike the heart, enjoy the florist
Correct Lyrics: Strike the harp and join the chorus

Of course Walt Kelly's famous nonsense variation, which is not a true mishearing or misremembering of the original song, begins "Deck us all with Boston Charlie."

But even Kelly's variation seems to have inheritied some of the original's talent for spawning misheard lines, since Kelly's version seems to often be misheard or misremembered as beginning with the hybrid phrase "Deck The Halls With Boston Charlie." Examples are here, and here, and here and here and here and here and here.

In fact, a highly nonrandom and nonrepresentative survey of some friends found that every single person who thought he or she remembered the Kelly variation thought the first line was "Deck The Halls With Boston Charlie."

Not that any of that matters, of course.
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The Why of It III

The evidence mounts that Democratic complaints about the influence of conservative media are intended to stir up what the Democrats view as a base constituency: newsmedia reporters and management, as noted in one prior post and discussed further in another. Specifically and completely predictably, the Durbin, Daschle, Gore "B" team having failed, Bill Clinton - the "A" team - has now tried to make the same paranoiac song fly high. As related by John Fund:

This week the former president [Bill Clinton] told the Democratic Leadership Council that successful Republican candidates were aided by an "increasingly right-wing and bellicose conservative press" which was drowning out "an increasingly docile establishment press." (Full disclosure: According to a Fox News report, "he cited only the Wall Street Journal by name.") Calling conservative criticism of Sen. Daschle "unconscionable," Mr. Clinton railed that Republicans "have a destruction machine. We don't have a destruction machine."

Yes, yes, Mr. Clinton says the Republicans have their Destruction Machine (although apparently according to a Fox News report, "he cited only the Wall Street Journal by name" - at least rectifying Mr. Gore's previous inexplicable omission of the Journal from his rant). And Mr. Clinton wants his own Democrat Destruction Machine! Heck, his comments are reminiscent of lines from Young Frankenstein: "A riot is an ugly thing! And I think it is just about time we had one!"

And just where would this Democratic Destruction Machine come from? Why, it already exists!

It's de-lightful!
It's de-licious!
It's de-famatory!
It's de-New York Times!
It's de-L A Times!
It's de-CNN!
It's D. Rather!
It's de-TIME!
It's de-Newsweek!
It's de-lovely!

But it just wasn't working all that well during the last election cycle! As Mr. Clinton puts it: The Democrat Destruction Machine – that part of the Democrat base - was just too docile.

Mr. Fund continues:

[T]here may be a method to the madness. Democrats appear to have concluded that if you can't beat the conservative media at their game, you join them and up the ante. During the same news conference in which Mr. Daschle warned that talk radio may be stoking something akin to religious violence in America, he admitted Democrats may follow the example. "We were just talking with some experts a couple of days ago about how, if we're going to break through as Democrats, we have to have the same edge that Republicans do--you know, Rush Limbaugh and all of the Rush Limbaugh wannabes have a very shrill edge, and that's entertainment."

But what to do about the economics of news coverage? People don't seem to want to listen to or watch the Democrat Destruction Machine like they once did:

The New York Times reports that "Fox has a solid lead over CNN, and has left MSNBC in the dust." Fox's prime-time ratings are up 17% from a year ago, while CNN's are down 31%. Even so, Fox's audience is still dwarfed by that of the major network news broadcasts, which Andy Rooney of CBS News recently acknowledged lean left. Mr. Rooney added that while he "always agreed" with his colleague Dan Rather, he admitted that he was "transparently liberal" and "should be more careful."

And, worse, the economics of news coverage - especially the success of Fox News - are reportedly increasingly tempting some mainstream media companies to reign in their liberal bias in order to hold onto their audiences - a threat to the Democrats!

Got to stir up the base to stop that from happening! Go for it, Bill! Go for it now!

The Federal Communications Commission is just going to make the economics pressure even worse in the future!

UPDATE: Glenn Reynolds has more.

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Wednesday, December 04, 2002

More Than Zero?

A heck of a lot more than zero with this post. Mindles H. Dreck does the round up of all the various hidden and not so hidden ways the government directs and misdirects the real assets of the society.

A must read.
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Of Mice and Chimps

Well, recent studies seem to suggest that humans are more closely related to mice than to chimps.

[I suppose I have to put in this note or someone will think I'm being serious.]
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Continuing the discussion...

... in an echo chamber?

"Trackback" is a sometimes thing. It is supposed to identify the URL's of sites that have linked to a particular post. But the function often seems not to work. Most bloggers don't have "Trackback" - including this one. [Anyone who links to this blog and would like a back-link is invited to send an e-mail to that effect.]

In some cases the "Trackback" workings seem a tad mysterious. Brad DeLong's "Trackback," for example, seems to only reveal the URL's of sites that have linked to his posts and had nice things to say about them. Now, that would be high technology, wouldn't it? Curiously, the Good Professor's Website Policy makes no mention of his blocking unfavorable links (unlike his adamant insistence that accusations of Nazism be polite accusations of Nazism). So it appears his readers are suppose to trust him that no such blocking is going on. And I, for one, want to go on record as firmly believing that the Good Professor wouldn't do something so, well, misleading and petty to the readers who trust him and who he values and respects in his own way.

Now of all the total of twenty-six posts currently on Professor Delong's blog - posts that run from "Doug Besharov on Welfare Reform" to "When Filtering Algorithms Attack!" exactly three are revealed to be linked by some other site in the "Trackback" - all of those links adoring.

Life is good!
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How Often Do You Finish A Newspaper Story With Your Face Wet From Tears II?

The many good hearted, well intentioned people of varied political stipes and race described in this Sandy Banks article from the LA Times are struggling with real problems having tragic consequences.

But that's not what most of the supposed intellectual elite of the Democratic Party do. Most of those elite seem more interested in preserving what they seem to think is their valued race card. For example, one can pick up any copy of the National Review today and see that it has changed - and that Mr. Buckley has changed - tremendously since 1957. But that fact must be denied by today's casual, Ivory Tower purveyors of racial enmity.

Before shuffling his race cards for another such raw deal, Professor DeLong may want to ring up his Berkeley colleague John U. Ogbu and have lunch with him once or twice. And Sandy Banks is very approachable. She can be reached at Perhaps she would be willing to give the Good Professor the contact information for some of the people mentioned in her article who are actually trying to understand and do something constructive about racial problems, especially in education - not just fatuously exploiting them for on-the-run political gain.
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Not Afraid of No Zombies?

Holman Jenkins writes in the Wall Street Journal:

Notice, too, the ferocious lobbying of other carriers against a United bailout, violating an unspoken ethic that companies in the same industry don't embarrass each other in Washington. But a bankruptcy that wiped out United's experiment in labor-management collusion would be a salve for the entire industry. United's management could go back to managing. Labor could go back to trying to protect its members' interests in arm's length bargaining with the front office. And the airline business would no longer have its salary scales distorted by United's misbegotten experiment in worker ownership.

Mr. Jenkins is correct. But a prior post regarding the US Airways bankruptcy is just as true of a possible United Airlines bankruptcy - which the denial of government subsidies will likely hasten:

In fact, there are very serious historical reasons to view the US Airways bankruptcy as a potential disaster for competing airlines. Consider the bankruptcy of the old Eastern Airlines. As with many airlines bankruptcies, the Eastern Airlines bankruptcy court viewed the airline as a "public service" - a characterization which the court used to justify Eastern's consumption of virtually all of its cash, equipment and other assets. In the end, even the secured creditors and administrative creditors of Eastern Airlines received just a few pennies for each dollar of debt. In the case of the secured creditors, the court allowed the airline to so run down and cannibalize the equipment securing the debt that when the creditors were finally able to foreclose, the equipment was often worthless. The so-called "administrative creditors" were unsecured creditors who advanced credit to the airline (sometimes involuntarily) after the bankruptcy. Such creditors did poorly, but they beat out the general, unsecured creditors, who received absolutely nothing.

But as far as competing airlines are concerned, the real importance of the bankruptcy court's treatment of airline cases does not lie solely in the outrageous treatment of the airline's creditors. Rather, the problem for the competing airlines is that they have to compete against an airline which is empowered to exploit its creditors for an operating subsidy which the non-bankrupt airlines don't have unless they, too, declare bankruptcy. Competing with a bankrupt, zombie airline is very expensive. Eastern Airlines converted several billion dollars of its creditors' funds into operating subsidies with the blessing of its bankruptcy court.

But it gets worse. If the bankruptcy courts continue to advance their "public service" approach to airline bankruptcies, creditors of existing airlines must take into account not only the increased likelihood that their debtor will seek bankruptcy protection resulting from the need to compete with a zombie, but also the likelihood that the creditors will be subject to Eastern Airlines style gutting of creditors rights if such a bankruptcy occurs. That means the cost of credit to competing, non-bankrupt airlines will rise substantially - further increasing the risk of bankruptcy. This vicious cycle could easily expand without limit. With the current structure of the airline industry and its weakened condition, it is no exaggeration to say that the US Airways bankruptcy has the potential to destroy the entire worldwide airline industry if US bankruptcy courts insist on following precedents such as Eastern Airlines. And the policies of insolvency courts of other jurisdictions are generally worse than those of the US courts, further exacerbating the potential problem.

The best possible thing the US Airways bankruptcy court can do for the nation and the national airline business is to take a very hard look at US Airways viability - and utterly reject the ill-conceived "public service" model. If the US Airways plan of reorganization is not quickly produced and clearly shown to be viable, US Airways should be promptly liquidated.

But historically, that has not been the way bankruptcy courts have treated airline bankruptcies.

It is sometimes surprising how short lived memories are in the airlines business. Perhaps those who do not suffer from amnesia bouts can't stand being in that industry. But such bouts are not so serious that United's competitors are unaware of the risks and difficulties they will face competing against a bankrupt flying zombie. It is therefore likely that the competitors recognize that although bankruptcy often operates as a disguised subsidy to the bankrupt arilines as discussed above, government loans are an overt subsidy - in this case to be followed by a United bankruptcy-subsidy anyway. Moreover, additional government-guaranteed debt would make a reorganized United less likely, prolonging the zombie phase.

Such an understanding would explain why United's competitors are acting as if they have no fear of this flying zombie. But "acting as if" is not the same as not having actual fear. If United seeks bankruptcy protection, treating that case in the "public service" model would be a catstrophe for the national and worldwide airline industries.

Indeed, while United's problems go well beyond any possible effect that might be induced by the US Air bankruptcy, it would be interesting to see whether the bankruptcy court's treatment to date of the US Air case has exacerbated United problems and those of other airlines.

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Tuesday, December 03, 2002

Corporate Governance In Disneyland II

The Walt Disney Company is not making much money turning out mostly tired, unexciting retreads of old warhorses.

But Mr. Eisner wants you to think it's all OK because he is putting the company in the vanguard of corporate governance reform!

Just think: Somebody had to make this up. Now THAT'S imagineering!

Disney's shenanigans and the effort at market manipulation (I mean "investor relations") might be more amusing if it weren't so obviously part of a formal public relations strategy, as noted by Holman Jenkins in the Wall Street Journal way back on October 23:

Disney needs a plan for using its assets more productively to generate earnings. Michael Eisner , its long serving chief, may have run out of ideas; he may be unwilling to do what is necessary. If so, he should go. But instead the company is bogged down in an esoteric discussion of who constitutes an "independent" director, as if replacing Sidney Poitier on the board is a substitute for investors taking charge and deciding where the company needs to go. ...

Mr. Eisner , no wonder, has become Disney's biggest champion of governance reform. He's brought in Ira Milstein, a legendary lawyer and expert on good governance; he's been meeting with gadflies and soliciting their advice. Yet such steps are no substitute for radical changes in Disney's business model, dismantling much of what Mr. Eisner spent his career building. (One idea: dump everything except the theme parks, retail outlets and animation studios, and turn Disney into a real estate investment trust, paying out 90% of its earnings to shareholders as tax-free dividends).

Nothing like this is going to happen with out a fight over control of the company, which Mr. Eisner has forestalled by changing the subject to governance reform.

Right you are, Mr. Jenkins. And the Disneisnerian bog just goes on and on and on.
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The Losing of a Constituency II?

Matt Miller seems to think the Clintonian third-way has exhausted itself.
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Could Anyone Think This Was Not Counterproductive? is not an official organ of the Democratic Party, but the Party could surely bring serious pressure to bear on the site or just expressly distance itself from the site. But to my knowledge the Democratic Party does neither of those things - and most indications are that the Party and the site are rather chummy.

That's more than a little odd, because it's hard to understand how the political geniuses in the Democratic Party don't understand that the preposterously intense anti-Bush spin gives to so many of its items lapses into factually faulty anti-Americanism. The net effect is almost certainly a drag on popular support for the Democratic Party.

Why does the Democratic Party let this go on and on and on?
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Jack Welch's Retirement Benefits

Critics of Jack Welch's retirement benefits should read Max Power's notes on the subject.
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Who Is Sonny Galt?

Jane Galt is certainly correct when she writes, elegantly, as is her custom:

The fact that widespread file-sharing would destroy the source of the files that are shared does not mean that the file-sharers won't go right ahead and destroy it. What's stopping them right now isn't goodwill, but insufficient broadband, and the absence of relatively simple equipment for playing the files on television. There's an economic term for this: The Tragedy of the Commons. Initially it referred to the overgrazing of common land by villagers; since no one had any rights to graze, it behooved everyone to graze their sheep as much as possible, to get the grass before their neighbor did. The result was that overgrazing destroyed the common for everyone.

The Tragedy of the Commons is seen where property rights are eroded or non-existant. No one has an incentive to preserve the public good, so everyone takes as much as possible while the getting is good.

In the case of intellectual property, widespread copying essentially destroys the property right. There is no incentive for any one person to preserve the revenue stream that makes the IP good possible, because their selfish neighbors will destroy it anyway. Everyone copies instead of paying $10 to see the movie, or $18 to buy the CD. Even if they know that they are ensuring that there will be no more feature films, or money to develop new recording technology or promote bands, everyone will still copy except for oddballs with strict ideas about respecting ownership.

The Tragedy of the Commons (also known as the "Overexploitation of the Common Pool") has broad relevance in the field of copyright law. For example, this Tragedy relates in several ways to the widespread hostility to the Sonny Bono Copyright Term Extension Act.

Ms. Galt considers the effects of the Tragedy on the source production of new materials. Another consequence of the Tragedy is degradation through overexploitation of existing materials. For example, the estate of Cole Porter once licensed the wonderful song "I've Got You Under My Skin" to a third party without sufficient license terms limiting the expolitation of the song. The result was a toilet bowl cleaner commercial with the jingle "I've Got You Under My Rim." That was a disaster for the Porter estate, which received the seriously damaged song back from the licensee. With the toilet association established, the use of the song, say, at wedding receptions, in movies and in other classy Cole-Porteresque environments was obviously impaired, but the licensee didn't care that the damage done exceeded the value obtained by the licensee from the commercial. Media companies stuggle mightily to ensure that their works acquire only "desirable" (that is, profitable) associations in the public mind. Free copying makes that control impossible - and would lead to lots of uses like toilet bowl commericals for, say, Mickey Mouse.
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Paul Krugman, Passim

I have increasing doubts about Paul Krugman's academic or "serious" work. It's not that I have read much of it and think it's wrong (I haven't read much). But his popular writings just don't seem to evidence someone who thinks like an economist - at least not now. And he seems to peg a lot of his professional status to his strange claims to have "predicted" various things such as Japan's slowing and other things where lots of other people were saying the same things for years. It all smacks of heavy and weirdly successful self-promotion.

His column (as distinguished from his academic writing) seems to have progressed from offering (1) arguments economists would take pretty seriously (in Slate days), to (2) arguments that economists would regard with skepticism, but acknowledge there was something there, to (3) arguments that employ some solid economic reasoning but omit some key countervailing considerations, to (4) near ranting assertions of political views that make serious economists wince (except Brad DeLong, who seems suicidally determined to defend even Professor Krugman's column).

While his column doesn't necessarily track his intellectual progress, the column is suggestive of someone who figured out early on how to say the right words that made senior people think he was on top of things - but didn't really have the full grasp he made himself appear to have. In such cases, what follows is often an early period of professional success - nice appointments and prizes for "young or most-promising this-or-that" and the like - followed by intellectual and academic drift. That is not an uncommon career path in close academic circles, where providing some argument one's seniors crave may garner more support than coming up with insights that show their work is to some extent off track. But talented people with early, genuine insight and grasp generally keep digging (we like what we are really good at). Intellectual progress and the deepening of one's core thinking normally shows up in one's popular writings - as with Milton Friedman and Gary Becker, but not Paul Krugman. That suggests - but, of course, does not prove - that there has not been much progress or deepening in Professor Krugman's case, and perhaps that he never had as much to offer as originally thought.
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How Often Do You Finish A Newspaper Story With Your Face Wet From Tears?

It could happen now.
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.. or, "Dirigistes Unbound!"

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Monday, December 02, 2002

Nothing Less Than The Heat Death of The Goreocosm

Crispin Sartwell proposes a Goreocosmic Theory of Everything:

It’s not just that in listening to Al Gore time is disposed of nonproductively, that time is lobbed into the universal garbage pail along with the cosmological coffee grounds and orange peels. As Al Gore speaks, time is wasted as a disease wastes the human body; time slowly collapses in on itself like the body of a consumptive: time withers, time decays, time atrophies as all things cease to be, even the very ceasing-to-be itself of things. So Al Gore makes not only everything impossible, he makes nothing itself impossible too, for nothingness must be the annihilation of itself as well as of everything. Al Gore is the universe feeding on itself and then feeding on its own excrement and then feeding on its own feeding maw, until it collapses into itself like a black w/hole that consists of a single infinitesimal point. And then Al Gore is the annihilation of that infinitesimal point itself, and the annihilation of that annihilation. .... Consequently, a vote for Al Gore is a vote not only against the universe in which we happen to find ourselves; it is a vote against the very possibility of any universe, of even a single merely possible lepton. A vote for Al Gore is a vote for the complete annihilation of all possible worlds.

Who knew so much was at stake?
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Why Do So Many People Think John Kerry Is Icky?

Mickey Kaus asks: What is it that makes so many people, myself included, intensely dislike Sen. John Kerry? This is the great mystery surrounding his 2004 presidential campaign. Talking Points has noted that the press corps do not like Senator Kerry, either - although Mr. Marshall does.

Well, this is just a thought, now, but I think one reason so many people, myself included, intensely dislike Sen. John Kerry is a form of arachnidphobia.

Yes, arachnidphobia - fear of spiders. Simply put, Senator Kerry bears a tragic, physical resemblance to a spider, a resemblance to which many people react poorly. Senator Kerry is a rather large, lanky sort - which makes him an Aragog: "ara" (from "arachnid") "gog" (from "big") - see also, "Gog" and "Magog." Of course, this does not reflect poorly on the Senator, but it probably reduces his electabilty on a national level.

Deletion - Correction

The rest of the post regarding the question "What is it that makes so many people, myself included, intensely dislike Sen. John Kerry?" has been deleted because it contained a serious error: mistaking a pro-Kerry website for Senator Kerry's own website.
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Twit IV!

It's now almost noon on December 2 in California, site of the august Berkeley economics department, and Professor DeLong has been busy, busy, busy posting on his Blog today. He has copied an entire copyrighted article from the Economist about the Zimbabwean model of development! (Heck, that's "fair use" isn't it?) He's told us what's wrong with NAFTA. (And included for good measure a copy of yet another entire copyrighted Economist article.) And the Good Professor has even sorrowed over a ridiculous fouth-hand Slate report telling us that "The NYT flags a coming Esquire interview with a former White House aide who says that the administration is obsessed with the political impact of things and doesn't give two-hoots about actual policy: John J. DiIulio Jr., who used to head the Office of Faith-Based and Community Initiatives and is, it should be noted, a Democrat. And also, it should be noted, a person once charged with a White House portfolio of which Professor DeLong almost completely disapproved - but that doesn't stop the Good Professor from trumpeting and relying on Mr. DiIulio's credibility now.

Is it important that people know these things - especially that the Good Professor is telling his readers that Slate is telling its readers that the NYT's is telling its readers that Esquire will be telling its readers that a disgruntled White House aide thinks there's too much politics in the White House? It seems to be more important to the Good Professor than deleting a comment that has been sitting in his database for almost two days comparing another of his commenters to a "Nazi."

Is that polite, Professor?

UPDATE: One might also question the politeness, judgment and credibility of the Good Professor's failure to note that John J. DiIulio, Jr. said Monday that quotes attributed to him in a January Esquire magazine article are wrong and were never said. But the Good Professor is apparently just too busy, busy, busy with important things to get rid of accusations of Nazism from his comments or correct a good sliming of the Administration. Well, maybe he's waiting to just copy the entire copyrighted Economist article on the matter when that comes out.

FURTHER UPDATE: Matt Drudge reproduces the underlying memo of John DiIulio. It's foolish phrasing and incoherent writing style seems to call into question Mr. DiIulio's judgment more than anything else.
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Cellphone Car Accidents

That cellphones cause some traffic accidents seems pretty clear. Whether their benefits outweigh their costs is another, more complicated, matter. Perhaps the most peculiar popular assumption concerning automotive cellphone use is that such accidents are mostly caused by the driver using his or her hands with the phone. This assumption has led to political pressure for laws, such as one passed in New York, forbidding the use of cellphones in cars.

The topic has hardly been thoroughly researched, but there is a Canadian study of the matter. In short: The Canadian study found that hands-free phones did not appear to reduce the risk of getting into an accident. Crashes "may result from drivers' limitations with regard to attention rather than dexterity," the Canadian authors suggested.

In addition, one might consider that more people have and use cellphones in their cars because traffic has been getting slower and more congested - something that might be addressed by "congestion pricing" (i.e. putting tolls on) freeways.

UPDATE: A friend responds: "I think I am OK. I have stopped using my cell phone and instead I am now typing on my blackberry while driving."

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It's not that anybody really disagrees with the substance of what he has been saying!

New York Times columnist Paul Krugman's peculiar version of media economics seems to have prompted the Times Business Section to run a special piece disagreeing with the substance of what Professor Krugman is saying. Specifically, Professor Krugman wrote:

The F.C.C. says that the old rules are no longer necessary because the marketplace has changed. According to the official line, new media — first cable television, then the Internet — have given the public access to a diversity of news sources, eliminating the need for public guidelines.

But is this really true? Cable television has greatly expanded the range of available entertainment, but has had far less broadening effect on news coverage. There are now five major sources of TV news, rather than three, but this increase is arguably more than offset by other trends. For one thing, the influence of print news has continued its long decline; for another, all five sources of TV news are now divisions of large conglomerates — you get your news from AOLTimeWarnerGeneralElectricDisneyWestinghouseNewsCorp.

And the Internet is a fine thing for policy wonks and news junkies — anyone can now read Canadian and British newspapers, or download policy analyses from think tanks. But most people have neither the time nor the inclination. Realistically, the Net does little to reduce the influence of the big five sources.

In short, we have a situation rife with conflicts of interest. The handful of organizations that supply most people with their news have major commercial interests that inevitably tempt them to slant their coverage, and more generally to be deferential to the ruling party.

But today's prominent Business Section article (front page of that Section) squarely responds to Professor Krugman:

For decades, public interest advocates have ... summoned images of Citizen Kane, or worse, Big Brother, warning that without strict regulation a few powerful corporations could take control of political discourse while homogenizing entertainment and defanging news.

But the advocates are now facing an issue that is much more complicated because despite consolidation, media choices have expanded exponentially through technology. Now the typical American can watch Britain's BBC News, among others, on television and choose from tens of thousands of news Web sites, from Al Jazeera, based in Qatar, to The Times of India, based in New Delhi. As a result, federal regulators are questioning whether fears of corporate media domination have become obsolete.

The impact of the Internet and the expansion of cable and satellite TV will be discussed next month, as the Federal Communications Commission considers loosening ownership restrictions in what could be the largest overhaul of media regulations in a generation. ....

Opponents argue that huge leaps in the number of entertainment and information sources mask a consolidation of media ownership — and a sameness in television and radio programming — that F.C.C. leaders are choosing to ignore.

Proponents of deregulation say that the average household has access to so much information in so many different forms that no single company could ever exert undue influence over consumers. In fact, they argue, large media conglomerates like AOL Time Warner and Comcast, through their investments in cable and Internet, are helping to bring more choices than ever to the average American household.

Just such an analysis is driving the F.C.C., now under the control of Bush administration appointees.

To some, the average American home has almost too much television to watch — 89 channels by the count of Nielsen Media Research. Nearly a third of United States homes with televisions have satellite or digital cable systems that give them access to more than 200 channels.

"When I look at the trends in television over the last 20 to 50 years, I see a constant and increasing explosion in variety," said Michael Powell, the F.C.C. chairman. "In the purported golden age of television there were three networks."

Most car radio dials have access to nearly two dozen stations, according to F.C.C. data. Satellite radio systems, if they gain traction in the market, will offer far more. Meanwhile, almost two-thirds of all Americans have the Internet at home, the F.C.C. says, allowing them to peruse just about any major newspaper or magazine in the world.

The response of the public interest advocates — and some politicians — is that while the media menu has expanded, it is chosen according to the commercial interests of a handful of companies.


This dynamic has helped lead to a dearth of major networks addressing minorities or people interested in high culture or civic affairs, areas that do not promise the ratings and profit bonanzas that major media companies are seeking, said Gene Kimmelman, senior director of the Consumers Union.

"With a handful of companies deciding what makes it in programming," said Mr. Kimmelman, "many points of view, many tastes are underrepresented in the marketplace."

He said ownership limits should, if anything, be increased so that no company has that much power over what programming people can see.

Underscoring their point, advocates say that while the number of national television channels has increased greatly, ownership of those outlets has not.

Proponents of media deregulation say this sort of analysis ignores economics. Good media executives, they say, know that people will pay well over $50 per month for 200 channels only if they are offered a compelling array of choices.

"Common ownership can lead to more diversity," Mr. Powell said. "What does the owner get for having duplicative products? I don't know why you'd want to have two newspapers that say the same thing. I would say, `Let's make one Democratic, let's make one Republican."'

And, he said, large corporations are often better positioned to start and sustain various media outlets than are smaller companies.

For instance, regulators allowed the News Corporation, headed by Rupert Murdoch, to buy The New York Post in 1993, despite its ownership of New York's Channel 5, because the newspaper, owned by the developer Peter Kalikow, was only a breath away from death. That saved a local voice in New York that would have been lost.

And consumer demand has, in fact, pushed cable companies to start their own local news and public affairs channels, adding to diversity. ...

EchoStar, meanwhile, has found that there is money in offering immigrant communities programming from their home countries with Russian-, Arab-, Chinese-, South Asian- and Greek-language packages.

Public interest advocates said all this misses the most important points. They question how many people really use the Internet as a major news source.

According to an F.C.C.-commissioned study, the average television viewer watches more than 2.5 hours of news a week. Mark Cooper, director of research for the Consumer Federation of America, says studies show that people use the Internet for news about one-fifth as much.

Still, Mr. Kimmelman said, "This is not to say something horrible happens day in and day out. If it even happens once it wasn't worth the risk of distorting democracy by letting somebody own too much of the media."

But, he said, "I don't know that if because you can articulate the anxiety it is a compelling case for having massive structural regulation of the industry."

Of course, there must be some terrible mistake here. Nobody is really disagreeing with the substance of what Professor Krugman is saying, are they Professor DeLong?

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Sunday, December 01, 2002

The Why of It II

A prior post discussed how the classic incentive for executives and other insiders to convert corporate assets and opportunities to instead serve the personal agendas of the insiders is similar to the incentive of reporters and news media executives to spin "ordinary new coverage" towards their personal political agendas at the expense, at least in the case of liberal political agendas, of network viewership and corporate profitability. In each case, the well-known corporate economic concept of "agency costs" can be applied to gain an understanding of the issue. To the extent such behavior reduces corporate profitability (a phenomenon increasing apparent in the case of liberal-biased reporting), it constitutes a species of corporate corruption in many respects similar to other corporate scandals.

Because mainstream reporters and and media executives are overwhelmingly liberal, the Democratic Party has likely been a major beneficiary of this brand of corporate corruption for many years. That prior post noted that Messrs. Durbin, Daschle and Gore seem concerned to keep those benefits flowing.

Another, quite separate, example of how the personal economic agendas of news media representatives may be affecting the slant given to ordinary news appears in an article by Daniel Akst in today's New York Times:

Another explanation for the economic gloom [in current mainstream reporting] may be the sharp advertising downturn that started in early 2001. The resulting media recession, including layoffs and other cutbacks, has produced a grimmer-than-usual attitude in the perennially gloomy fourth estate. The industry's concentration in New York and Washington, both of which were struck by terrorists last year, has further darkened the industry's outlook.To raise consumer confidence, maybe the Federal Reserve should pay for free massages and other mood enhancers for the nation's journalists. Until then, you can expect to hear more pessimism, even though the current economy is one that economists might have considered darn near utopian just a generation ago.

In other words, news media representatives personally feel economically threatened, so they are reporting that everyone is economically threatened.

If Mr. Akst is right, then some economic reporting is less accurate and less useful to readers and viewers - and therefore likely less profitable to the media companies - than such reporting would be if media companies did a better job of filtering out the effects of their representatives’ personal economic agendas. Similarly, political and general reporting is less accurate and less useful to readers and viewers - and therefore likely less profitable to the media companies - than such reporting would be if media companies did a better job of filtering out their representatives' personal (generally liberal) political agendas.

There are differences: The affects on economic events which Mr. Akst suggests, such as overly-gloomy reporting that may deform investment and/or consumer decisions, are presumably inadvertant economic effects from such coverage, which could not be manipulated or encouraged by the likes of Messrs. Durbin, Daschle and Gore. But political and general reporters (including economic reporters) often deliberately politically spin their coverage of sensitive events.
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Krugman Truth Squad points out that Professor Krugman is again in complete error in construing and reporting the data underlying his polemic that a "spectacular" rise in social inequality is now afoot in America:

As we have pointed out before, when Krugman cites research in support of a point, it is a good idea to actually read the citation. In this case, he completely misses (deliberately we suspect) an essential point. The data show there is no bias in intergenerational income mobility. A child with parents in the top 10 percent of income is just as likely to fall, and fall just as far, as a child born to parents in the lowest 10 percent is to rise.

Notwithstanding these errors, and the many of Professor Krugman's other egregious errors and omissions catalogued by the Krugman Truth Squad, for example, Brad DeLong writes that "[i]t's not that anybody really disagrees with the substance of what he has been saying" when Professor Krugman savages the Administration and Mr. Bush, personally.

Since Professor Krugman clearly has many who disagree with the substance of what he is saying, including the Krugman Truth Squad [partial index here], Jane Galt and many other Bloggers and columnists, perhaps Professor DeLong will tell us how he has determined that such people are "nobodies." Professor DeLong also thinks that the voters who tossed the Democrats out of control of the Senate a few weeks ago - in large measure as a result of Mr. Bush's campaign gallivantings around the country - were either (1) "nobodies" who don't count from the Olympian intellectual heights of the Berkeley economics department or (2) signaling agreement with Professor Krugman's pot-shots. Perhaps Professor DeLong can resolve the ambiguity in his thinking here.

And while he is at it, perhaps he can resolve the separate ambiguity as to how it happens that he, who holds himself out as fulsomely insistent on the "politeness" of the commenters on his website, has no problem keeping company with a commenter who, in response to one of the Good Professor's critics, left behind the following droppings on November 30, 2002 05:15 PM - a full 24 hours ago:

Hi there. This is Jason Leopold. I'll get right to it. I don't know who Patrick Sullivan is, where he gets his information, whether he is a journalist or just some right wing Nazi, but he is out of his mind.

Professor DeLong's "Politeness Policy" states, among other refined restrictions, that: "Comments on this website will be polite to me and to other commentators, or their comments will be deleted. ... For example: Commenters who compare others (or me) to Stalin, Pol Pot, Hitler, or Mussolini should not expect their comments to remain in the database. " The Good Professor also says that such judgments will be made "[i]n whose judgment? Mine, of course."

Since Mr. Leopold's comments have remained in the Good Professor's database for the past 24 hours, it seems that he views characterizations as "Nazis" of people such as Mr. Sullivan who do not agree with the DeLong orthodoxy as sufficiently "polite" - and not at all covered by his maxim that "Commenters who compare others (or me) to Stalin, Pol Pot, Hitler, or Mussolini should not expect their comments to remain in the database."

The reader may decide for herself whether this is an inconsistency that damages the Good Professor's credibility. Certain academics would counsel Professor DeLong that he has every incentive not to burn his credibility--it is, after all, the only thing he has to sell.
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Oddly, They Both Seem to be Right!

E&P, a media industry publication reports:

LA Weekly's John Powers wrote last week that [Paul] Krugman is "the president's most effective establishment critic. ... "

Daniel J. Mitchell, a senior analyst at the Heritage Foundation conservative think tank in Washington, is less admiring of Krugman: "He's sort of a doctrinaire, left-wing, big-government type. I don't think he's terribly effective."

Sometimes the "most" is not "terribly."

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