concurring and dissenting

Hughes v. Pair - Emotional Distress - Dirty Mouthed Justices

2009-07-21T17:44:00.000-07:00

On July 2, 2009, the California Supreme Court decided Hughes v. Pair, in which the plaintiff alleged the defendant used his position as a trustee to seek sexual favors. After being rebuffed, the defendant allegedly said, "I'll get you on your knees eventually. I'm going to fuck you one way or another."

The Supreme Court affirmed the trial court's decision granting summary judgment in favor of the defendant, reasoning the conduct was not sufficiently severe or pervasive for liability under Civil Code section 51.9 or the common law tort of Intentional Infliction of Emotional Distress (IIED).

It is difficult to determine when summary judgment should be granted on the ground that conduct was not sufficiently outrageous or did not cause sufficient distress for purposes of a IIED claim. What is "outrageous" and what constitutes "severe" distress appear to be issues of fact that--in most instances--are left to a jury. It is hard to say what "no reasonable juror" would find "outrageous." Unfortunately, this decision does not help except to add another specific factual situation to the pile of failed claims. Has the court has simply given up on creating a more manageable standard?

Discussion of how life-experiences influence judging has been widespread with the Sotomayor nomination. This case provides a good example of how a adjudicator's life-experience and history can matter. A more thin-skinned court might see a threat to "fuck" someone over unless they have sex with them as "outrageous."

Also, the California Supreme Court did not hesitate to use the taboo word "fuck" when it was directly relevant to their decision. (Avoiding the word "fuck" in the Hughes opinion would have been somewhat incongruous with holding that the defendant's statement was not outrageous.) In contrast, the prudes in the United States Supreme Court could not bring themselves to write out (or say during argument) the dangerous "F- and S-Words", otherwise known as "indecent expletives," in its recent Federal Communications Commission v. Fox Television Stations, Inc opinions. Will Sotomayor bring some of the language of Bronx to the court?

Some Mind Matter Over Other Mind Matter

2009-06-17T17:07:00.000-07:00

An
interesting discussion regarding how, or whether, scientific understanding of our moral intuitions may impact our moral reasoning and decision making.

The Vice Nominee

2009-06-09T11:15:00.000-07:00

Akhil Amar and Ian Ayres suggest that Obama could nominate a Supreme Court justice before there is any indication that there will be an opening on the court, allowing for a quick replacement to occur in the event of a sudden retirement or death. Sounds fine enough, but the idea is seriously flawed.

First, the nominated person's life would be placed in limbo until a death or retirement, and the nominee may never get a chance to sit on the court if no openings occur before the next presidential election. If the nominee were a sitting judge, as most recent nominees have been, they might feel political pressure in making interim rulings--knowing the nomination could be placed in jeopardy.

Second, the pre-selected nominee might encourage a sitting justice to retire early or to hold on as long as possible. Alternatively, pre-nomination might allow for easier deal making for sitting justices to influence the selection of their replacement. The issue is debatable, but I think most would agree that a sitting justice should not have significant control over selecting their replacement.

Third, pre-selecting a nominee (in the absence of a deal where a justice has agreed to retire) is not in the interest of the President because, prior to selection, the President has the option of changing his or her intended selected replacement. In general, having an option is better than not having an option. In addition, the extended period between selection and final confirmation would increase the possibility of embarrassing revelations or events that might cause the President to retract the nomination. Retracting a nomination is distracting and difficult, causing more voter dissatisfaction than not having selecting a particular individual in the first place.

Also, pre-selecting a second nominee (before a first nominee is confirmed) may change the willingness of the Senate to consent to the appointment of the first nominee. If the second nominee is slightly preferred to the first, why not vote down the first nominee?

Judicial Recusal and Increased Litigation

2009-06-08T17:04:00.000-07:00

The US Supreme Court decided Caperton v. A.T. Massey Coal Company, Inc. today, holding that due process required a state supreme court justice (Justice Benjamin) to recuse himself from hearing an appeal where the CEO of one of the parties (Blankenship) spent millions of dollars to elect that justice (the efforts constituted more than half of the money spent to elect the justice).

As stated by the majority, this was an extreme case where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” The most conservative members of the court dissented, but not on the ground that the state justice's decision to hear the appeal was appropriate. Instead, the dissenters were concerned with increased litigation: They argued that the majority's rule--that a judge must recuse themselves where there is a “probability of bias”--does not provide judges or litigants with "clear, workable guidance" for when recusal will be constitutionally required. Because the rule is not clear, there will be an increase in claims and motions to disqualify judges and, consequently, an increase in litigation over questions left unanswered by the majority opinion. For his part, Justice Roberts provides 40 questions as examples of "a few uncertainties that quickly come to mind." And Justice Scalia believes that litigation over the recusal issues will, more often, delay our "seemingly interminable legal proceedings."

The dissent appears to ignore the fact codes of judicial conduct provide more protection than due process requires. As a result, in what cases will a Caperton claim be made? Claims for recusal in state and federal trial courts and intermediate appellate courts will be no different: motions will continue to be made under the more stringent codes applicable in each jurisdiction. A prudent litigator may include a citation to Caperton, but there will be no change in the amount of litigation. Only in cases where a state supreme court judge or justice fails to recuse him- or herself or where the state supreme court completely fails to enforce its own judicial code is there the possibility of further litigation in the US Supreme Court. I predict the Supreme Court will hear, at most, one or two more case like this in the next decade, if only to establish what is clearly not an "extreme case."

Justice Roberts also believes that the "inevitable" "increase in allegations that judges are biased, however groundless those charges may be . . . will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." This is a curious defense of the judiciary. First, it ignores that litigants often make allegations of bias regardless of whether there is a legal remedy for the claim. If Roberts's dissent was the majority opinion, it would not eliminate allegations of a biased judiciary, but confirm them. Second, his argument conflicts with basic judicial principals, including access to the courts and freedom of speech. Anyone may file a complaint with spurious allegations; it is litigation that will hopefully discover the truth or falsity of the allegations. Finally, it is implausible that "the public" will be aware of any increase in motions to recuse. Instead, most people are only aware of their personal experiences with the courts, or extreme cases of apparent abuse that gain media attention, such as Blankenship's assistance in electing Justice Benjamin.

Justice Roberts complains that "[t]oday’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)." However, he (and the other justices) routinely act as political scientists, economists, and psychologists when deciding cases. Ironically, the analysis in Roberts's dissent cannot be separated from Justice Roberts's thoughts on political science (Blankenship's participation in the election probably did not influence the election or Justice Benjamin's decision), economics (the cost of litigating recusal claims will outweigh the benefits of removing biased judges), and psychology (the public's perception of judges will be harmed through litigation of groundless recusal claims more than allowing judges with an appearance of bias to rule on cases).

I agree with Justice Roberts that it may be difficult for judges to act as social scientists. But legal reasoning is often founded upon one's implicit views regarding the social sciences.

The Prop 8 Decision

2009-06-04T13:04:00.000-07:00

As previously stated, I believe it is a violation of equal protection to deny same sex couples the legal rights available to opposite sex couples: retaining "traditional" marriage constitutes impermissible sex-discrimination, sexual-orientation discrimination, and religious discrimination. However--after looking at the cases regarding whether a change to the Constitution is an amendment or revision--I also agree with the decision to uphold Proposition 8 as a valid amendment of the California constitution.

My main complaint about the opinion is the holding that same sex couples married between the time In Re Marriage Cases was decided and the passage of Prop 8 will continue to be recognized as "married" by the State of California. The court reasoned, the proposition (i.e., “Only marriage between a man and a woman is valid or recognized in California”) did not contain "a provision explicitly stating that the measure is to have retroactive effect,"the "'plain language' of the measure" was insufficient because, in past decisions, the use of the present tense ("is valid and recognized") did "not clearly demonstrate that the measure is intended to apply retroactively," and it is not "very clear from extrinsic sources that . . . the voters must have intended a retroactive application."

The reasoning is flawed because the proposition was clearly not intended to create a limited class of gay couples that the state would recognize as "married" and another class that is not married, but enjoys the same legal rights though a civil union. The absurdity of the result compels a different holding. The opinion is very long, but spends little time addressing this issue. The cases the court cited in support,

(See, e.g., McClung v. Employment Dev. Dept. (2004) 34 Cal.4th 467, 471 [holding statute providing that “ ‘an employee . . . is personally liable for any harassment . . . perpetrated by the employee’ ” (italics added) does not apply retroactively to harassment committed before the enactment]; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 842 (Myers) [holding statute providing that “ ‘there exists no statutory bar’ ” for claims of smokers “ ‘who have suffered or incurred injuries’ ” (italics added) does not apply retroactively to impose liability on tobacco company for sales occurring during period in which tobacco companies enjoyed statutory immunity].)

both involved whether a party would be liable for conduct that they could not be held liable for at the time they engaged in the conduct. Here, the proposition does not attempt to impose any liability on a same sex couple, or change their substantive legal rights, but rather, merely states that California will not recognize the marriage as a "marriage," but a "civil union."

And the Spice

2008-05-26T10:03:00.000-07:00

Cooling Clothes: "What life should you do in the future of Global warming, and I think that the fashion that acquires the consumer electronic affords the enjoyment and the spice."

Rafael Lozano-Hemme

2008-05-06T17:43:00.000-07:00

Rafael Lozano-Hemmer's projects are generally pretty amazing. Here is a presentation he gave last year.

Dope

2008-04-06T02:32:00.000-07:00

The Building Constitution

2008-04-05T14:09:00.000-07:00

The latest post in Jack Balkin's posts on living constitutionalism expresses many thoughts I have had regarding the purpose and the role of constitutional interpretation. It contrasts the view that (1) the constitution provides a framework (in some places specific, some places vague, and some places silent) that political institutions fill out over time and modify as the knowledge and sensibilities grow and change with the view that the constitution is a integrated document with (2) all meaning and application is bound by the expected application in the late 1700's.

Not explicitly included in the constitution were instructions on how the judiciary and others should interpret and apply the founding document. To determine how the document should be interpreted, any good originalist or textualist should agree that the we should look to the works of the Constitution itself and the practices at the time for clues as to how it should be implemented. Balkin makes the persuasive point that in many places the Constitution is written with broad language, particularly section 1 of the Fourteenth Amendment:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Same Sex Marriage

2008-03-06T18:55:00.000-08:00

So, the Cal. Supreme Court heard oral argument in In Re Marriage Cases a couple days ago. I listened to some of it here. I didn't think the lawyers on either side were making the best arguments they could. I found it particularly odd that the lawyer for San Francisco didn't think the State of California could not simply create an equal system through eliminating the word "marriage" and call all State sanctioned unions "civil unions" and leave the word "marriage" to individuals and their religions.

There was a good deal of discussion of whether limiting marriage to male-female couples is discrimination based on sex or discrimination based on sexual-orientation, and if the latter, should rational-basis or a heightened level of scrutiny be applied. The court of appeal below decided that the law is not sex discrimination and rational basis review applies. I have previously argued that the restriction is facially discriminatory based on sex (not just sexual orientation), and the court of appeal was able to overlook this fact because of the reflexive nature of the limit

The court of appeal adopted the argument that all people have the same limitation: they cannot marry a person of the opposite sex; therefore, no sex discrimination. However, a more careful analysis is reveals two different rules: (1) men may not marry men; and (2) women may not marry women. Each of these rules is specific to gender and each is sex discrimination. Only men are prevented from marring men, and only women are prevented from marrying women. Clearly men and women are being treated differently, despite the reciprocal nature of the discrimination. It is often argued that limiting marriage only affects individuals who are homosexual. Therefore, it is only sexual-orientation discrimination. This argument is not entirely convincing. Consider a pair of laws that disallows men from working as teachers and women from working as reporters. Clearly the law discriminates on the basis of sex, even though only a narrow portion of the male and female population desire to be teachers and reports, respectively. The laws really only affect sub-categories of "didactically-orientated males" and "inquisitive-orientated females." Similarly marriage limiting laws create two rules, one imposed on all men and one on all women that have their most significant affects on sub-populations of those who desire to be with people of the opposite sex. In either case, the discrimination is still based upon sex.

Here is another idea. Perhaps much of the confusion over the marriage question comes from the many different asserted justifications for the legal status. I identify the following purposes: (1) raising children (through providing a sense of unity, commitment for long term obligations, tax breaks, shared income and responsibilities, etc.), (2) romantic companionship, (3) platonic companionship, (5) mutual support obligations, (6) unification of family assets and efficient use of resources, and (7) religious requirement. Generally, more than one of these categories applies to any marriage. However, I imagine there are plenty of marriages without any one of the identified purposes. Now, whether restricting marriage to male-female couples appears to be sex or sexual-orientation discrimination, or both, depends on which purpose you are mainly concerned with. Lets have a chart:

Reason for Marriage	Sex Discrimination?	Sex-Orientation Discrimination?	Other Discrimination?
Children	Yes	No
Romance	No	Yes
Platonic	Yes	No
Mutual Support	Yes	No
Assets	Yes	No
Religion	No	No	Yes, Religious

Its probably not so clear what I'm getting at here. It is this: with respect to each stated purpose of marriage, it may matter if the couple is same sex or not. If marriage was simply raising kids or a very close platonic commitment between two people, a person's sexual orientation would not necessarily have a bearing on who someone would choose to marry. Thus, for many of what we consider to be the most important aspects of marriage, its not about sexual attraction, but about something else. Of course, there is an assumption of sexual attraction and generally people have such desire, making a purely platonic marriage unlikely (except in the case where a couple that once had such attraction looses it, and the other purposes remain). If the purpose of marriage is to meet a religious obligation, limiting marriage would constitute discrimination against those whose religion allows for same sex marriage.

Intent and Experimental Philosophy

2008-03-01T17:51:00.000-08:00

Two stories:

The vice-president of a company went to the chairman of the board and
said, ‘We are thinking of starting a new program. It will help us increase
profits, but it will also harm the environment.’

The chairman of the board answered, ‘I don’t care at all about harming the
environment. I just want to make as much profit as I can. Let’s start the
new program.’

Did the chairman intend to hurt the environment?

The vice-president of a company went to the chairman of the board and
said, ‘We are thinking of starting a new program. It will help us increase
profits, and it will also help the environment.’

The chairman of the board answered, ‘I don’t care at all about helping the
environment. I just want to make as much profit as I can. Let’s start the
new program.’

Did the chairman intend to hurt the environment?

A common answer to given to question one is yes; to question two, no. Even though in both situations the chariman had knowledge of a result (i.e., harm or benefit to the environment), but not purpose to cause the event (i.e., his purpose was purely an interest in money). So why the different answers?

I have three thoughts:
(1) In the first story we are comparing costs and benefits (money v. environment), and in the second, there are only benefits (money + environment). In the first situation, depending upon a person's values, they will or will not make the product. In the second, everyone would make the product because there is no downside. This distinction suggests that people's definition of intent depends upon whether a choice needs to be made. In the second story, there is really no choice at all.

(2) Most people can readily think of something that harms the environment, while often "environmentally friendly" products are really something that tends to cause less harm, rather than reducing harm in an absolute sense. For example, driving a hybrid does not remove carbon dioxide from the air, but merely introduces less carbon dioxide. So, when someone thinks about these two stories, they are likely to have a background understanding that the employee in the second story is not actually saying the product will help the environment (for example, a product that removes pollution from the air), but merely cause less of an effect or no effect on the environment.* This background knowledge may influence what they consider intentional. In the first situation there appears to be a change from the status quo to a more polluted environment, in the second, it could be the case that the product merely maintains the status quo instead of making the environment more polluted. If this is the basis for the distinction, it suggests a distinction between action and inaction in determining what is "intentional."

(3) These two ideas different from the initial thoughts of the experimenter, Joshua Knobe, raises concerns that using this type of "experimental philosophy" is not that useful because it is difficult or impossible to (a) eliminate "background" facts in the questionee's mind (even if a question says "assume...," people will not necessary be able to completely eliminate their feelings regarding the probability of the stated assumption), or (b) determine what are the material differences between the two questions.

Executions

2007-12-26T14:32:00.000-08:00

One of the most powerful arguments against capital punishment is that many individuals have been revealed to be innocent while waiting on death row. The risk of killing innocent people is too great.

Our laws establish a two step process of applying punishment: first the jury determines whether evidence of a wrongful act is demonstrated to a particular burden of proof; then, the punishment assigned for that wrongful act is applied. For civil disputes, the burden of proof is generally more likely than not; for criminal prosecutions, the burden of proof is beyond a reasonable doubt. In death penalty cases, in general, the jury first determines guilt beyond a reasonable doubt; then, the jury determines whether the crimes and the offender are sufficiently despicable to warrant the penalty of death, taking into account a variety of factors.

Personally, I feel--assuming the death penalty is worthwhile in the first place--capital punishment should not be limited to the most despicable crimes; rather, death should be limited to those individuals who we are absolutely certain have committed the crimes they are accused of.

I suggest that, for death penalty cases, guilt should be determined by a beyond a reasonable doubt, but the punishment of death may be imposed only where there is "irrefutable evidence" of guilt. Such a standard would allow imposition of death penalties where the evidence of guilt is overwhelming, eliminating the risk of killing an innocent person; it will satisfy the preference of many Americans to kill the worst offenders; it would allow judges to independently and dispassionately evaluate the evidence to ensure a possibly innocent person is put to death; it will also allow plea bargains to put the offender in prison for life without the need for a costly trial. Plea bargains are also useful in some instances to gain information from the offender regarding accomplices or information regarding the location of victims.

Such a standard also might reduce the impact of conscious or unconscious racism in the application of the death penalty.

"The tyranny of the market"

2007-10-10T20:25:00.000-07:00

Joel Waldfogelexplains the idea behind his book: sometimes the market will not address the desires of minority groups. While this is true, most of the time there is not much society (through government) should do about it. Exceptions include things like mandates to accommodate the disabled. I have thought about the tyranny of the majority through individual market choices before, but I think the problem comes more with the creation of societal norms. For example, once enough people acquire a cell phone, or check their email daily, or do some other activity, others will be expected to do the same. These unwanted expectations can be aggravated through social status competition. How many young couples spends thousands or tens of thousands of dollars more on a wedding because of modern American cultural norms regarding what is acceptable?

Soccer!

2007-09-30T12:20:00.000-07:00

Cognitive Daily: Soccer is better exercise than jogging

Keep on whining

2007-09-07T18:20:00.000-07:00

Tyler Cowen is upset at people who purchased iphones that are now complaining about the announced price cut: "It is you people, you who resent Coase (1972), you people who induce wage and price stickiness and widen the Okun gap. . . . AAARRRGGGHH!"

I understand how Tyler feels in some ways. Why should a person complain simply because another person gets a better deal. It should have no effect on whether the deal you received was good. However, there are at least three answers to this:

First, people are not just concerned about whether they have purchased an item that is worth more to them then the amount of money they have paid, they are interested in getting an item at the best price possible (or a "fair" price). Lets say the iPhone was worth $1000 to a particular customer, she has a consumer surplus of $400 when she purchases the phone of $600. That is a good deal, but if the consume was able to buy it for $400, they would have $200 to purchase other items, increasing their utility to at least $1200.

Second, Apple sells a product, but they also sell an (exclusive) culture. By increasing the number of people who can buy, they reduce that exclusivity. When a person purchased the phone for $600, they expected the price and the level of exclusivity to remain that high for a period of time (at least a year, let's say). When Apple reduces the price, it just reduced the value after the purchase was already made.

Third, Apple breached a custom that has value: selling a product at the same price to each consumer. It might be efficient for many companies to sell products at different prices to different consumers in order to extract the maximum revenue. And this could benefit most people by encouraging the production of valuable products, increasing the number of people who will want to purchase an item, and lower prices for many consumers. However, variable prices come with their own costs. When people know prices might change it adds an incentive to try to get the lowest price possible. This could encourage people to delay purchases, to invest time into investigating price changes, and generally increase transaction cost. Ever know someone who spent every day checking flight information looking for price drops? Ever tried to find out the real price of a car? Getting a good deal can be a pain in the ass. Having a norm of giving everyone the same price reduces these transaction costs.

Lindy Hop

2007-08-07T18:36:00.000-07:00

I love this dancing.

Law Breakers!

2007-06-27T21:33:00.000-07:00

Cristina Rodriguez makes some points I mostly agree with.

The vast majority of Americans recognize that the 12 million undocumented immigrants cannot simply be found and shipped out, both for the sake of the American economy and because it is unfair to many that have worked and raised family in America.

Imagine if we could know everyone that drove above the speed limit in the last ten years and then decided to give them tickets. It would be an absurd result with the majority of Americans owing hundreds of thousands of dollars; their license revokes many times over. It is simply unfair to set up a particular enforcement scheme (or lack of enforcement scheme) and then attempt to harshly punish those who acted in response to that system.

It appears that the current system is a dysfunctional stalemate between business interest that want more immigrant workers and pro-immigrant groups and the know-nothing nativists. The easiest thing for a politician to do is keep official immigration low, by restricting official immigration, but keep unofficial immigration high. Similarly, politicians can get behind a big wall. Like low visa numbers, it looks like an effort to reduce immigration, but it is unlikely to significantly limit the number of undocumented workers.

I would propose a massive increase in the number of legal immigrants along with punishment largely directed at employers who hire illegal immigrants or do not comply with labor laws.

Redistribution

2007-06-21T19:42:00.000-07:00

Marginal Revolution:

We don't take steps to redress inequalities of looks, friends, or sex life. We don't grab a kidney from you to save someone's life, even though that health difference was unfair brute luck. Redistribution of wealth has some role in maintaining a stable democracy and preventing starvation. But the power of wealth redistribution to produce net value is quite limited. The power of wealth creation to produce net value is extraordinary. Most of America's poor are already among the best-off of all humans in world history. We should be putting our resources, including our advocacy and our intellectual resources, into wealth creation as much as we can.

The first sentence of the comment compares inequalities in "looks, friends, or sex life" with inequalities in distribution in wealth. You might notice that each of these categories is extremely personal. How our economy functions and distributes wealth is extremely not personal: do you know who made any of the possessions in your room? Even if you're crafty, you got the materials from somewhere. The "market" is an amazing wealth creating tool. Well-functioning markets are created by governments and civil society: the individuals who create and obey the laws of property, contract, and tort. Tiny amounts of wealth creation can be attributed to individual efforts, while cooperative civil society makes a modern industrial society possible. Most of the massive income some individuals earn can be attributed to a well-functioning civil society or the accrued technological knowledge of generations bygone. Bill Gates's nerd-power would not get him much on a desert island. (Perhaps he has realized this and started to share his wealth.) Accordingly, it is appropriate to distribute some of the gains to everyone in the society who had created them. Even the poor.

Looks? Society as a whole does not help create good looks. Friends and a sex life are not something that can be redistributed. Even with these seemingly insurmountable barriers, "we" still try to help. Our government gives everyone an education, giving them tools to overcome deficits in looks and social connections. Institutions often judge people by tests without viewing an individual, avoiding the influence of social networks and smooth skin. Non-corrupt government bureaucracy itself is a large normalizing force.

The second sentence notes we do not take kidneys involuntarily. Again, society/government does not create kidneys.

One of the most important values Americans hold is equality of opportunity. The quote suggests that in the absence of redistribution, a meritocracy would exist. This assumes an equality of opportunity that does not exist. Children need well-off educated parents in order to perform to their potential.

Perhaps Tyler (the author) accepts a system that does not provide for equality of opportunity or provide wealth equal to contribution. All that is important is future aggregate wealth. Or, in other words, "We all had a shot at the wealth lottery. It just so happened that my family and I won. If you lost, too bad. And please stop trying to take money from me."

First Congressperson to Amit They Do Not Believe in God

2007-03-13T17:32:00.000-07:00

Rep. Stark
Generally, such an admission would be politically foolish, but he as been a Congressperson for more than 30 years. So, either he is feeling confident, or doesn't mind going into retirement.

Appreciate Irrational Giving

2007-03-11T13:17:00.000-07:00

Study shows that people have a bias toward giving more when hearing about an individuals suffering, but not when they hear about widespread suffering. Put another way, single death: tragedy; a million: statistic. However, learning about the bias just makes you not care about the individual.

“Thinking about problems analytically can easily suppress sympathy for smaller-scale disasters without, our research suggests, producing much of an increase in caring for larger-scale disasters”, the researchers said. "Insight, in this situation, seems to breed callousness".

people/the government irrationally give millions to a few thousand 9/11 victims' families while ignoring millions of other suffering hardships from the untimely death of a loved one. However, this study suggests that charitable giving is not a zero sum game. Not giving to a particular cause will not necessarily produce more funds for another cause.

Federal $$ per Death

2007-02-27T21:56:00.000-08:00

This
The post compares federal research dollars to (US?) deaths.

* Stroke: $2143 are spent on research into stroke per person who dies of a stroke.
* Heart disease: $3,649 are spent researching heart disease per person who dies of heart disease.
* Lower respiratory diseases (such as emphysema and chronic bronchitis): $9,495
* Alzheimer's: $10,164
* Kidney Disease: $10,552
* Diabetes: $13,474
* Cancer: $14,006
* Influenza and pneumonia: $58,315
* HIV/AIDS: $212,330

The comments (and I) suggest other comparisons:
(b) world-wide deaths;
(c) number of expected life-years lost;
(d) cost to treat;
(e) suffering;
(f) opportunity to eliminate future deaths;
(g) likelihood of reducing deaths/costs per dollar spent.

Other concerns might be (a) issues in attributing deaths to a particular disease; (b) risks of pandemic outbreaks; or (c) what areas the private sector has incentives to work on.

Not that media exposure and politics doesn't have anything to do with how money is spent.

How about dollars spent per US death due to terrorism? ...that makes AIDS look cheap. (And how do you count US deaths in Iraq? deaths due to terrorism or a costs of preventing terrorism?)

One might also argue that research funds are not a zero-sum game. Groups organize and raise AIDS and flu funding. Other groups could organize and raise stroke funding without lowing AIDS funding.

Perhaps a problem for stokes and heart disease is that they can kill you too quickly; no time for the family to lobby congress.

Tickets as Taxes

2007-02-20T18:40:00.000-08:00

Recently, during a conversation comparing the obedient driving habits of Americans with the Turks or Indians, I suggested that enforcement of traffic laws in America is encouraged by strong voter aversion to taxes.
This paper predicts and finds evidence that local law enforcement are more likely to give speeding tickets to out-of-towners, tickets to those who are unlikely to appeal their case, and give tickets when taxes cannot be raised. Confirming another suspicion, young women are more likely to get away without a ticket. But does placing a pro-police sticker on your car help? What about looking like a hippie? Further research is necessary...

I have long viewed prosecutorial discretion as a large gap in efforts to create equal treatment under the law. Courts are often very concerned if a law mentions race or gender, but there is virtually no check on an officer's or prosecutor's decision to choose to enforce the law in a biased manner.

Kite Photography

2007-02-13T20:42:00.002-08:00

Here is a very cool website of a person that takes pictures from kites.

The lady and I purchased a kite recently while at Bodega Bay. We flew it at the head. I am sure everyone else was very jealous. I saw another couple from the place we were staying. They must have been thinking, "Ah, I wish I had a kite," and saying "Why didn't you buy me a kite!" Ha ha! We are the better couple!

I also took many photos on our trip. I imagine that I would like to make kites and fly them and perhaps attach a camera, but I suspect I won't ever do it. It suspect it is more work than one might first imagine.

The Lady

2007-02-08T21:18:00.000-08:00

With the lady out the past couple nights, my behavior has changed for the worse: I eat weird things by combining everything left in the fridge and I write blog posts.

In Defense of Bureaucrats

2007-02-08T21:12:00.000-08:00

From the archives:

Elected, accountable politician vs. faceless, unelected, nearly unfireable bureaucrat:
Civil servants range from deadwood to brilliant . . . . But . . . Bureaucrats spend careers addressing particular problems, learning some system all the way through. They accumulate a lot of local knowledge and familiarity with the players. The fish passage office at Fish and Game has a stunning amount of knowledge about what fish passages structures work and which ones are expensive failures. No one else, not professors or consultants, has seen as many fish ladder installations over such a wide geographic range as these bureaucrats. . . . I like the idea that the person who sets broad policy and direction should be accountable [to voters]. But . . . A political appointee cannot possibly know enough about all the things an agency does to have meaningful opinions at the level of regulations.
...
Privilege.
Regulations in general are trying to correct something, for some reason. Bureaucrats don’t write them for recreation. They write environmental regulations to correct an imbalance that arose over time. It may be a comfortable imbalance for you, one you have always known, that you have grown so accustomed to that it feels like a right. But there is a cost somewhere, . . . If you hate regulation, approve of anything that would delay some regulation, you are, in essence, saying that because the status quo is acceptable to you, you are happy to let other people and the earth bear the costs of your lifestyle and existence. I have no respect for that.
...
..there are only two times a regulation is going to matter to you[: (1)]if it annoys you[, or (2)]if it works. If my friend’s work means your kid breathes easy through the night, if changing THM thresholds saves your pregnancy, it’ll matter to you. But you’ll never know . . . that some bureaucrat spent six years on that. Even if you read the regs, you wouldn’t know that damage to you was averted. . . . you are the ungrateful recipient of the results of thousands of regulations. You think that living un-assaulted by poisons you can’t see or trace to a source just happens, naturally. That isn’t the case, and hasn’t been since the Industrial Revolution. You are constantly guarded by environmental regulations that you resent as an abstraction, as somehow “too much.”
...
"Why not regulate the consequences you are trying to avoid rather than the means that at this particular moment in time bureaucrats think will probably lead to those consequences?"
[Those regulated would ask] if we’d lost our minds. [Those regulated do not have the time or resources to understand how all of their actions affect the environment. Enforcement would be impossible.]
...
I don’t think that Byzantine regulation, unfair enforcement and make-work meddling are a result of top-down regulation. I think they’re just what humans do. A bunch of hippies at a consensus-based house meeting can come up with ornate policies to rival those from any top-down regulators.
[Have you lived in a co-op?]
...
There are very many times when bureaucrats know there will be negative outcomes, but accept them as trade-offs because the overall situation will still be better. There are times when they’re surprised by negative outcomes. There are times when what one group considers a negative outcome is what the bureaucrats considered the point. . . . Every negative outcome has a constituency dedicated to making that consequence the most important thing in a bureaucrat’s life. We do not get to dismiss much.

. . . I have to acknowledge that the accumulated codes are painfully dense thickets, too tangled for easy use by our citizens, complicated, with internal contradictions. I want to talk about how civil servants doing their best end up making systems that are so frustrating that “bureaucrats” and “regulations” are nearly epithets.
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I am always disappointed by public meetings. We hold public meetings for people to give us comment, and we never get the kind of comment I hope for. . . . We get professionals who are there on behalf of an organization to protect an economic interest. Those folks give sophisticated, one-sided comments, which is probably fine [a]s long as we get professionals from all sides . . . . And then we get private citizens. . . . When you’re up in front of those meetings, you can spot ‘em. Your heart just sinks as they approach the microphone. There is so much wrong, and you don’t even know where to start. This meeting is expensive to hold, what with the consultants and staff on overtime, and you can’t spend people’s time discussing this guy’s problems. You don’t even know how to have this conversation with this guy. . .

If we want to uphold our beliefs that all voices have equal value in our country and that citizens guide the governance . . . excluding types of views and voices becomes the exclusion of types of people. Even though it would be so much easier to only deal with the clear thinkers at public meetings, in the end, ease is not what we are after. Because we are representatives of the state, because we are truly civil servants, participatory democracy requires that we shape our public dealings to make everyone heard.

One-Shot Prisoner's Dilemma (with a person exactly like yourself)

2007-02-08T19:28:00.000-08:00

Brad Delong looks at an alternative solution to the prisoner's dilemma:

Basic Prisoner's Dilemma
------------------B Cooperates B Defects
A Cooperates- (2, 2) --------- (-5, 3)
A Defects-------- (3,-5)--------- (-4,-4)

Ordinary solution: always defect because no matter what the other person does, you are better off defecting.
Symmetry Argument: if my opponent is exactly like me (or very similar), then they will do what I do. I should, therefore, cooperate: my partner will cooperate; we both win!

The symmetry argument appears to run into a problem in that it assumes what you think will determine how the other person thinks. But, who believes that what you decide causes other people like you to change their mind? The other option is that you don't really have a choice in what you will decide: your reasoning is determined by sparks, atoms, and molecules interacting inside your mind like a machine. Thus, your decision is already made. You can then hope that you and your prisoner partner are both "irrational" and will choose to cooperate. Alleluia!

Assuming the person is not just like you, the first thing you should ask is, "has my partner taken an economics class?" If so, defect. You might have better luck with a sociologist or communist.

I have not heard the Symmetry Argument before, but I have thought along these lines with respect to voting. Voting is (nearly) completely irrational. You have an almost infinitesimal chance of changing an election outcome. It is certainly not worth the time to walk to your voting booth (much less wait in line or read the ballot propositions). However, if you assume that there are a bunch of people out in the world that think like you, they will (irrationally) decide to vote if you do. You want them to go to the polls because they will vote they way you do. Much like a poll of 1000 Americans will fairly accurately tell you what all 300 million feel about a subject. Therefore, if you decide to go to vote, others like you will decide to vote. The problem is that when a person answers a poll question, they do not cause millions of Americans to believe what they believe. The key, then, is to try to convince yourself and people who think like you to make a rational mistake and believe that the following argument is a good one: Go vote because it means that millions of others will vote with you!

2007-02-06T20:25:00.001-08:00

Supreme Consensus

2007-02-04T00:48:00.000-08:00

This article reports that Justice Roberts, once again, stated that he wants the Supreme Court to act with fewer dissenting or concurring views. In order to get this result he suggests deciding cases on narrow grounds. He argues that this will give the Court more respect as an institution.

I disagree. First, I disagree with the premise that the public is concerned with concurring or dissenting opinions. And with respect to the cases the public is concerned with, each justice is unlikely to bend to Roberts' desires.

Second, even if individual justices suppressing their views did bring the Court more prestige, it is not a worthwhile goal. Deciding matters in secret and only letting the public know party of the reason why a case was decided the way it was doesn't increase my respect for the institution. Each justice is still a human with their own opinions on how a case should turn out. Lying or hiding those opinions will not change matters. At worst, the Chief Justices' approach is deceitful and should undermine people's respect for the Court.

Third, deciding things on narrow grounds to avoid dissents simply provides less information. Most people acknowledge that the Court is not there to make sure the right result occurs in each case, but to clear up legal issues for thousands of similar cases.

Fourth, strengthening the institution through Roberts' plan is synonymous with giving himself more power. He is a member of the Court, the more respect it receives the more power he wields. In addition, the Chief Justice assigns the opinions. Therefore, less dissent would give him more power in determining how the reasoning and holding of a case are written. Lower courts are often heavily influenced by the particular words chosen in an opinion. For example, if the Court mentions a number of factors influencing its conclusion or possible exceptions to a rule in passing, these factors may soon turn up as part of a "test" applied in many other cases.

The best thing the Court could do for its reputation as an institution is to not obviously decide cases based on political preference. I do not respect the justices who signed onto the opinion in Bush v. Gore. It was simply disgusting. I would also suggest more honesty and openness, not more secret conferences. Roberts has undermined respect for the Court before he was even confirmed through his "umpire" analogy. He was either being dishonest or he is not a very sophisticated thinker. He is clearly not the latter.

Dreamdate!

2007-02-03T13:52:00.000-08:00

Discrimination Based Upon Sex

2007-01-16T21:30:00.000-08:00

I recently read the California Court of Appeal decision concerning whether permitting marriage only between couples of the opposite sex violates the California constitution. In Re Marriage Cases

Whether a court will finds a law that bar same-gender couples from marrying violates the equal protection clause is largely determined by what standard of review the court subjects the marriage law to.

Laws that discriminate based on race or gender are subject to strict or heightened scrutiny: the State must demonstrate the law advances a compelling interest and the law must be narrowly tailored to advance that interest. If a law discriminates based upon other characteristics, such as wealth, location, pet ownership, home ownership, etc., the State needs only suggest a plausible legitimate interest in the law. This is know as "rational basis review.

If laws restricting same sex marriage are subject to strict scrutiny, they will be found unconstitutional because any plausible reason for restricting marriage to different sex couples is either not legitimate (e.g., religious reasons, dislike of homosexuals, personal morality), or not narrowly tailored (e.g., encouraging procreation).

If the marriage law is subject to rational basis review, it will likely be found constitutional, at least in California. California has an interest in distinguishing between "marriage" and "civil unions" for the purpose of dealing with federal marriage law, which does not provide legal recognition of same sex marriages.

Thus, the question is (1) is barring same sex marriage gender discrimination; and (2) if not, should there be heightened scrutiny for laws that discriminate against homosexuals (because like race and gender, it is a [relatively, generally] immutable trait that has a history of being the subject of irrational stereotypes, hatred, and malicious legal discrimination.)

Addressing the first question, the majority reasons,

The [current marriage] laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled 'discriminatory' when it does not disadvantage either group

The Court of Appeal makes two incorrect statements: (1) that men and women are treated the same; (2) that "discrimination" means "disadvantaged." In addition, the majority makes a legal mistake: it attempts to determine whether the law disadvantages a gender before determining the correct level of review. The entire point of the heighten scrutiny applied to laws that discriminate based on gender is to take a more careful look to see whether the is, in fact, impermissibly discriminatory.

Men and Women are not treated the same under the current law. A man may marry a woman and may not marry another man. A woman may marry a man and may not marry a woman. One can marry a person with a vagina, the other cannot. One can marry a person with a penis, the other cannot. This is an important difference. Clearly, women and men are being treated differently. If the law suddenly changed to "you can only marry a person of the same gender," it might make a few people upset. Why? because they have a strong preference about which set of sex organs they favor.

The court tries to get around this very obvious discrimination in treatment by phasing the discrimination in the reflexive. They say, each sex is equally unable to marry the "same gender;" however, the term "same gender" only has meaning with reference to the individual's gender. "Same gender" is not a particular category in itself; it requires a subject gender.

Lets try a silly illustration of what should be a rather obvious logical mistake: the legislature passes a law that people are only allowed to purchase and eat plant sex organs that are the opposite of the sex organs they have. Women would be unable to eat fruit, while Men could. Clearly, no one would say each gender is being treated equally in such a situation because women could eat plant stamens.

Ironically, the majority goes on to write, "Rather than dealing in semantics, a court's primary concern in analyzing gender classifications under the equal protection clause is to ensure equal treatment for men and women." It is the court that is using a semantic trick to say the genders are not being treated "differently." Clearly they are: A man cannot marry Tad Benton because of my gender. A woman can. This is a difference!

And this difference is real. Men and women are not completely fungible: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." (United States v. Virginia (1996) 518 U.S. 515, edits in original.) And as noted above, individuals do not consider men and women fungible in terms of potential for intimate relationships. We care a great deal about the sex of our sex partners.

In response, one can argue that while men and women have some important general differences on average, for the most part, an individual's gender preference is largely immutable. Thus, a restriction of marriage based on gender is only directed at the small percentage of people sexually attracted to their own gender. This is what most of the debate over marriage is about: will we discriminate against homosexuals?

The majority accepts that the current law does discriminate against homosexuals. But finds that homosexuals -- similar to, for example, optometrists -- are not entitled to heightened scrutiny of laws the discriminate against them.

The majority reasons,

For a statutory classification to be considered "suspect" for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon "an immutable trait"; (2) "bear[] no relation to [a person's] ability to perform or contribute to society"; and (3) be associated with a "stigma of inferiority and second class citizenship," manifested by the group's history of legal and social disabilities. [Citation.] While the latter two requirements would seem to be readily satisfied in the case of gays and lesbians, the first is more controversial. . . . whether sexual orientation is immutable presents a factual question. The trial court did not conduct an evidentiary hearing . . . .

This analysis is at odds the the majority's position above: that each gender is being treated equally. Either sexual orientation is largely immutable (and, therefore, heightened scrutiny should apply), or it is largely mutable (in which case, the inability to marry a person of the same gender is a real disability based on gender, and not just for self-professed homosexuals).

The Supreme Court's decisions regarding gender discrimination have disregarded legal justifications based upon "fixed notions concerning the roles and abilities of males and females." (United States v. Virginia (1996) 518 U.S. 515.) Beyond the argument over legal classifications and levels of review, the debate over same sex marriage is about the role of men and women in society and how our relationships will be recognized by the government. Laws restricting marriage to opposite sex couples are passed with the intent of enforcing traditional notions of gender roles. They are passed out of fear that society is no longer respecting traditional gender roles. Under the principals articulated by the Supreme Court -- that the State is no longer able to enshrine gender roles into legislation -- laws limiting marriage based on gender are unconstitutional.

Will the California Supreme Court adopt the shoddy reasoning of the Court of Appeal? We shall see.

IQ in childhood and vegetarianism in adulthood

2007-01-05T17:50:00.000-08:00

Pancakes and me is so smart!

The Ideas Issue Questions Its Own Existance

2006-12-10T12:19:00.000-08:00

The NYT's Magazine has an end-of-year ideas issue including this article presenting an idea that I think should be widely publicized: studies showing negative results do not get published. Thus, even well thought out studies that get an outlier result will be published and mislead scientists and the public as to the true causal relationship between two events. The same reasons negative results don't get published in social science journals apply to journalism in general.

Unfortunately, the rest of the issue appears dedicated to providing a platform for spurious correlations, see below.

Paternity Confidence

2006-12-10T12:05:00.000-08:00

ThisNYT's Magazine article repeats the conclusion of a meta-study on what percentage of children have been fathered by someone outside the couple. The standard answer has been 10%. Dr. Anderson believes it is much lower.

Anderson . . . examined every paper . . . in which men with few or no doubts about their paternity learned that they weren’t related to one of “their” kids. . . . studies were mostly designed to explore genetically linked traits in fathers and children. Presumably, if you or your wife suspected you were unrelated to a child, you’d find an excuse not to take part in a genetic study like that, so Anderson determined that these men had high paternity confidence. Collectively in these studies, only 1.7 percent of men learned they were not the true fathers.

. . . a second set, of 31 studies, done at paternity labs . . . largely to resolve paternity disputes, so Anderson classified the men involved in these studies as having low paternity confidence. . . . 30 percent of the children tested in these studies turned out to be children of other fathers.

These two studies establish a rough estimate of the links between confidence in paternity and actual paternity. . . . for the [10%] figure to hold, men would have to have strong doubts about one in four of all children. . . . drawing on a survey of 1,325 men in Albuquerque, found that even when granted total confidentiality, they expressed doubts about only 1.5 percent of the 3,066 pregnancies in which they were involved.

I call bullshit. In the high-confidence studies, the women -- the person who has the best knowledge of who is the father -- determine whether the study will go forward. In the low-confidence studies, women did not have the option of not participating. Thus, the studies do not present a "rough estimate of the links between confidence in paternity and actual paternity" in studies where women have an opportunity not to participate.

This study looks like a waste of time. I'm I wrong?

To predict or not to predict?

2006-11-04T18:03:00.000-08:00

What the proper role of a lower court judge when faced with a novel legal issue? Should it try to arrive at what it considers the best reasoned result, or predict what the reviewing court would do?
Howard J. Bashman thinks a court has the option of choosing either method.

I argue that a court should answer a legal question to the best of their ability given current precedent without thinking about what a reviewing court might do. First, deciding what a reviewing court might do on a novel question is a difficult task. Why abandon what you consider is the correct answer for a different solution that you are not even certain the reviewing court would agree with? Anticipating what the Supreme Court might do would necessitate counting up and analyzing the votes of 9 justices. Second, the lower court opinion itself can be a persuasive document. It is an opportunity for a lower court to provide its own amicus brief to a reviewing court. Third, how would the reasoning be presented? "With the new appointment of Justice Alito, there will be five votes to uphold the law..." Such an opinion would constitute a shocking disregard of a judge's duty. Fourth, the reviewing court might change its opinions or membership.

Reasons for trying to predict what a reviewing court might do include: (1) it would increase consistency in legal outcomes across lower courts; (2) it might reduce the reviewing court's caseload; (3) in practice, what the reviewing court will do is, in the end, the law; (4) it might reduce the time parties have to wait for a final outcome; and (5) it would reduce professional embarrassment of being told you are wrong.

A slightly different question might be, should a court try to avoid being reversed? This is a separate question in that many decisions are either not appealable, or unlikely to be appealed. A court could also fashion an order in a way to reduce the possibility of being reversed by making certain factual findings, or not stating what the specific grounds for the ruling are (and what they are not). I find this practice objectionable because it would be an attempt to undermine the purpose of having a court of appeal, which is have a consistent application of the law, simply to avoid being reversed. A lower court should welcome being reversed where they overlooked an issue, and at least not mind being reversed where there is simply a disagreement at to what the correct application of law should be.

This question can also apply to a law clerk: does one recommend what the judge would probably think is the correct answer, or does one recommend what they believe is the correct answer. A clerk may be shy and not want the judge they work for to think less of them for having a different view of the law.

Same Sex Marriage in NJ

2006-10-25T18:08:00.000-07:00

The NJ Supreme Court held same sex couples must be given equal rights as heterosexual couples, but are not necessarily entitled to have the government label the union "marriage."

The Court concluded by reminding people, "same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship."

I don't understand why same-sex couple, who would otherwise "marry" under state law, have "commitment ceremonies" or other marriage equivalents without calling it a marriage or wedding ceremony. The State cannot stop you from calling your wedding a wedding, or your marriage a marriage! The fact that the State does not grant a same sex couple the rights and obligations or refuses to label it the same does not change what it is: a marriage.

In addition to the satifaction of calling your same-sex marriage a marriage, calling same-sex unions "marriages" and "weddings" furthers the nefarious "homosexual agenda." Speaking about same-sex unions as being marriage actively redefines marriage for all Americans. If a substantial number of people refer to same sex couples as "married," the word takes on that meaning. If you hear, "Tom is married," and many people use "marriage" as a substitute for same-sex civil unions, no person, even the most right-wing fundamentalist, can take it for granted that Tom is married to a woman. As people begin to hear "marriage" used to refer to all long-term committed couples, the idea of same-sex marriage will no longer be foreign or frightening. And once same-sex marriage is marriage, it will be the fundamentalists who will be attacking marriage.

Liberals Hate America.

2006-10-15T12:41:00.000-07:00

Balkinization discusses how voters react to fear of death. The point to a WSJ article stating studies show that people reminded of their own death become more certain of their worldview, conform more closely to societal norms, and show greater reverence to symbols such as flags. Clearly, conservatives, perhaps instinctively, have taken advantage of this over the past 5 years, or make that 50 years.

The article goes on "Building up your own worldview requires disparaging (even unconsciously) that of others."

Now,although the Republican party smear that liberals somehow hate America is a disgusting lie, there is something to the idea that liberal are not as patriotic (depending upon how you define patriotism).

Liberal values include believing persons should be treated equally no matter who their parents are; where they were born; or their sex, race, and nationality. It follows that the life of a non-American citizen is equally as important as the life of an American citizen. Part of the liberal view of equality includes assisting those who, through no fault of their own, lack resources or opportunities; as opposed to the right-libertarian view of equality, where everyone is equally on there own (except that some people, for no particularly worthy reason, start off with much more than others).

Patriotism, as a special form of nationalism, does not value equality or equal opportunity: its basic premise is "Our nation-state is better than your nation state." Nationalism exults one nation above all others: a nation's citizens are superior, deserve better, and have the right to control their own destiny to the detriment of the equal political rights of other states or nations.

Exulting one nation's right to act internationally in its own interest above others is incompatible with the belief that all humans have equal political rights.

The Democratic party does not lack this patriotism. Neither Democrats, nor Republicans would equate the death of an Iraqi to that of a US citizen. But, Republicans are a bit more brazen in stating the primacy of preserving American lives at any cost, even that of many more non-American lives. The well-worn line, "We are fighting them over there, so we do not have to fight them here," is stupefying for more than one reason. But, significant to the discussion here, it indicates a willingness to let the Iraqi people be the subject of tens of thousands of deaths via terrorism to possibly reduce a distant slight threat of harm to US citizens.

This difference can be seen with regard to the immigration debate as well. Few politicians are keenly interested in how immigration might help the immigrants improve their lives. Only a liberal would point out what a generous gift it is to give a person from a poor region of Mexico the benefit of working in a wealthy, comparatively well-regulated, economy.

Place this on the pile of anti-Jesus Republican messages. The big J always emphasized that foreigners and outsiders are just as important as ones own people.

Its not that liberals tend to dislike America or blame it first; rather, they evidence a tendency to treat both Americans and non-Americans as human beings that deserve fair treatment.

Al Gore, NYU Law, 9/18/06

2006-09-18T17:45:00.001-07:00

Al Gore:

For the last fourteen years, I have advocated the elimination of all payroll taxes — including those for social security and unemployment compensation — and the replacement of that revenue in the form of pollution taxes — principally on CO2. The overall level of taxation would remain exactly the same. It would be, in other words, a revenue neutral tax swap. But, instead of discouraging businesses from hiring more employees, it would discourage business from producing more pollution.

I think that I first thought about this idea only 8 years ago. This is something nearly everyone should support: People concerned with the environment should clearly support it. People interested in promoting employment should support it. People interested in public health should support it. People interested in terrorism should support it. People interested in creating the most efficient economy should support it because consumers and producers would be forced to internalize the costs that they are currently forcing upon others.

I would like to see, as much as possible, all of our taxes to be focused on things that produce negative externalities. Pollution and environmental destruction are the most notable.

This idea seems politically palitable as well: who could be against eliminating the payroll tax? encouraging employment? against making those who pollute pay for the harm they cause? personal responsibility?

Los Gatos Weekly-Times

2006-09-09T17:30:00.000-07:00

Los Gatos Weekly-Times | Police Report:

Vandalism--July 10, 10:20 p.m. on Sund Avenue. Juveniles knocked over a port-a-potty on a resident's property.

This is an ongoing problem.

The resident provided a possible vehicle description to police.

The Campbell Reporter

2006-09-09T17:27:00.000-07:00

The Campbell Reporter | August 14, 2002:

Public Nuisance—Aug. 1, 8 p.m. A man at the intersections of Campbell and Railroad avenues was arguing with a Port-a-Potty. Authorities arrived at the scene and determined that he was intoxicated. The man was booked.

Conspicuous Consumption

2006-09-07T20:12:00.000-07:00

Conspicuous Consumption:

In Veblen's view, the wealthy engage in conspicuous consumption to advertise their wealth. If true, such behavior can set off a wasteful rat race, in which people buy expensive products they don't particularly like only to ''keep up with the Joneses'' and signal their lofty status. Because conspicuous consumption makes others feel less successful, some economists have argued that society would be better off if a high tax rate were applied to goods that are the object of conspicuous consumption.
...
Mr. Heffetz's analysis indicates that the higher the visibility of a good, the more likely it is to be a luxury item. For example, spending on cars and jewelry, two highly visible items, rises as a share of a household's budget as its income rises, while spending on home utilities, an inconspicuous category, falls as a share of the budget as income rises.

The relationship is far from perfect, however. Cigarette consumption is greater among lower-income households than among higher-income ones, yet cigarettes are the most noticeable product of all, according to the findings of the study. Formally, the index of visibility accounts for 12 percent of the way in which income relates to consumption across products. Interestingly, the effect of visibility on consumption applies only to the richest half of families, for whom the visibility index accounts for 20 percent of the way additional income is spent on various products.

For those in the bottom half, product visibility has no detectable effect on how income affects the pattern of consumption.

My first thought was "horseshit." How much more electricity can you use? But, of course, people are not really using the added capacity of their Hummers.

My second thought is, I should get into selling a premium brand cigarettes that cost $25, or $100, per pack. It could have something alleged to be special in it to make people think its better, like those $200 hand creams. So smooth you can still taste every bit of your excellent gray goose martini.

What if you had a law that allowed people to purchase visible wealth from the government? Lets say everyone must have a white car, except for people that pay a great deal of money to get another color. Instead of buying a useless hummer people could pay 20K to get a Black or Gold car to show off. Society could use the resources that are otherwise spent on Hummers and digging up shinney rocks to help everyone have a truly higher standard of living, rather than spending the resources on making ourselves look comparably wealthier. Yes, very silly. People would still want to be able lie and say, “No, it really is worth the money.”

Supermajority Constitution

2006-08-24T20:32:00.000-07:00

Mike Rappaport argues that
(1)laws passed by a supermajority are superior to those passed by a majority because
(a) a supermajority protects minority interests, and
(b) greater support indicates significant public benefits;
(2)because the Constitution was passed by a supermajority,
(a) it should take precedence over other laws, and
(b) supports a "original meaning" interpretation of the Constitution because
(i) it enforces the original supermajoritarian view, and
(ii) the supermajoritarian process is superior to amendment by nine Justices.

I agree that legislation passed by a supermajority is generally superior to that passed by a simple majority, but there are many flaws in Mike's argument:

First, the Constitution was not actually passed by a supermajority: only white, male, landowners had a vote in early American society. Even a unanimous Constitution would not be passed by a majority. And that lack of a majority clearly had a large effect on the well being of particular minority groups.

Second, the Constitution was passed at one time 1793. If you consider the life of the State, the people who passed the Constitution are a very small minority. Any super majority at the time of formation is only valuable to the extent that they are an accurate reflection of the current and future interests and understanding of the People. I would imagine that over time there has been considerable drift on what an equitable consensus compromise establishing a nation-state should look like.

And this leads to my third point: supermajority requirements may unfairly benefit a minority that has an unfair advantage under the status quo. It was very difficult to get a supermajority to allow women to vote, give them equal control over their property, or control over their own bodies. Not only was the original Constitution not made by a supermajority, requiring a supermajority to change it locks in the power of a elite minority.

If your goal is to protect minority rights, the best way to do so is not by enshrining what white men in 1793 were the minority rights that they thought the Constitution would protect, but to allow an independent body to determine when laws are unfairly targeted at a minority group. And this is what has happened when our Supreme Court has protected interracial couples' right to marry, the ability of unmarried people to purchase contraception, and the right for the mentally retarded to not be zoned out of housing. The founders would probably not have thought this would have been the result of an equal protection clause.

And this, of course, leads to the fourth point: the original meaning of the Constitution was intended to be not entirely clear and subject to interpretation as the time required. (Ironically, it is the conservative strict constructionist orignalists who now seem most willing to ditch some of the most basic provisions of the Constitution -- like, say, judicial review -- on the ground that “the Constitution is not a suicide pact.” One might actually come to the conclusion that their preferred method of interpreting the Constitution, rather than being an objective way to constrain judicial policy-based decision is really simply a rational for reaching the policy-outcomes they prefer.) As Jack Balkin somewhat tangentially indicates and Justice Breyer argues in his book, you should not just look to what the original drafters or public thought how the Constitution would be applied to specific situations, but how they imagined and expected the Constitution would be interpreted and applied in the future. If the original drafters and public desired that the cultural values and economic, sociological, and scientific understandings of 1793 would be enshrined in the Constitution they could have stated so; they could have dictated how the Constitution would be interpreted. They did not. It is just as likely they thought that future generations would use the Constitution to protect democracy and minority rights as America went through cultural and scientific revolutions. At the time of passage, 1793, judges had must greater law making power than they do today. Almost all contract, tort and much criminal law was developed by judges. You might think that the founders expected and depended upon judges in the future shaping the law. I have gotten a little off topic. A bit on the ranting side, eh?

In conclusion, Mr. Rappaport's argument is thoroughly unpersuasive.

The Empty Posner

2006-08-22T21:42:00.000-07:00

Mr. Law and Econ on the Circuit Court himself, Richard Ponsner writes a commentary that should make every thoughtful person not want to purchase his new book.

As a judge I cannot comment on the correctness of [the decision that the NSA wiretapping program is illegal]. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.

It is not so strange. All momentous issues regarding statutory and Constitutional interpretation start at a trial court. And for momentous questions is does not matter who is randomly selected because the case will be appealed. So the initial comment about a randomly selected Judge is irrelevant bullshit.

And if the process of having neutral individuals, educated, but not ideologically committed to a partisan positions determine the law is strange in the national security area, the idea of the judiciary itself must be strange to Posner. Judges all over american making decisions about environmental impacts anticompetitive conduct, energy policy, psychology, sociology, and many other diciplines one might think expert study would be useful. (A problem with Posner is that he considers himself an expert in all fields. He thinks himself an economist, but doesn't seem to understand such basic concepts as transaction costs or market failures. (See Chicago Bd. of Realtors, Inc. v. Chicago (7th Cir. 1987) 819 F.2d 732, 742.) Perhaps he should quit the business?)

It is the judiciary's inexpert status that places the burden on the parties to present convincing evidence to support their positions. Judge Posner already knows that spying on Americans and locking up foreigners without judicial oversight is the right answer; no evidence presented in court needed.

And this dis of the judiciary coming from a Judge who writes a book on national security? Maybe he is just upset they he won't get to decide the case. Instead, he thinks the experts in national security in the CIA and White House should decide what liberties we have, with oversight from Republicans in congress. We must be in different worlds because, to me, that statement appears absurd on its face.

Perhaps I haven't had my brain damaged by Sept. 11, 2001 -- as it appears many former libertarians have -- but the danger from being killed by a thug in East Oakland or a drunk on the 880 seems a lot more dangerous than terrorism: 45,000 killed per year in car crashes; 100+ murders in 2006 for Oakland. Terrorists: no American deaths in the past 5 years, and deaths in California? Not in my lifetime. And the balancing of what is a reasonable balance between security and public danger is something that trial Judges are as expert at as anyone, repeatedly deciding when it is reasonable to search or arrest someone.

And as Marty Lederman at Balkinization points out, Posner's statement that "We are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court," made in reference to Hamdan and ACLU v. NSA is stange indeed because both decisions were most strongly supported on the ground that the Executive's actions violated a statute passed by a Congress and President in the last century, not the Constitution. And anyone who thinks the threat of the Soviet Union and nuclear annihilation is not far more dangerous than airplanes... We can just stop talking.

So what is Plan Posner? Not actually imprisoning terrorists,

Terrorists are difficult to deter and locking them up has only a limited preventive effect because the supply of terrorists is virtually unlimited. Fortunately, if a terrorist plot is detected it will usually be possible to neutralize the plotters without prosecuting them.

And I heard that we were killing them all in Iraq so they wouldn't come here. What a disappointment. Instead, he wants to let them go and keep watch without the Constitution to hold us back:

Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant.

How to prevent abuses?

The potential abuses of warrantless surveillance can be minimized, without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance.

With the less than stringent Congressional oversight and a White House that does not cooperate with DOJ investigations, there is no restraint on abuse.

Now, I can understand wanting to have a lower standard of proof for terrorist related searches, I can understand a lower standard for holding individuals who are believed to not just be ordinary criminals, but one who wish to kill large numbers of people. However, changing the standard necessary to search, listen, or detain someone does not mean that the task of ensuring compliance should be striped from an independent body and given to political appointees and partisan Congresspersons.

There may be creative judicial, constitutional solutions to addressing the unique threat of terrorism, but the current administration has not attempted to make serious proposals creating such a compromise (such as the passage of FISA itself). Instead, the administration simply asserts there is no constraints on its power.

You would think a free marketer like Posner would understand the dangers of monopoly, the pressures of public-choice theory, and the benefits of competition. The founding fathers did and they created three branches of government that could compete for power and expose abuses. Lets hope we don't kill off this 18th century wisdom because too many people now wet themselves every time someone is brown and on a plane.

Quotes

2006-08-20T20:26:00.000-07:00

The New York Review of Books: The Foreign Policy the US Needs: "Democratization has become confused with elections"

"The imperial nationalism of [the neoconservatives and the apostles of brute force— like Cheney and Rumsfeld—] reminds one of that of the French Revolution, which wanted both to export the "principles of 1789" and to expand French rule of other countries."

"American leaders and much of the public, he charges, suffer from "historical amnesia," fostered by "US textbooks and public rhetoric" which portray America's international role as "uniformly noble, principled and benevolent.""

"He also argues that "when the US promotes local and regional security and prosperity, even to the short-run benefit of tyrannical regimes, it creates the soil in which democracy can grow." This happened in Taiwan, where US protection helped to allow democratic forces eventually to take power."

"[S]ecret intelligence operations often damage US interests—for instance. . . . "Secrecy's role in the US government is to keep senior officials from learning from their mistakes.""

"[W]hile Americans may argue that their security depends on the spread of morality and justice abroad, they should first practice both at home."

"[M]uch American military power is practically unusable because of international risks (as with nuclear weapons) and domestic opposition both to the draft and to protracted wars with high casualties."

Music Genetics

2006-08-18T17:14:00.000-07:00

I care for the analogy to DNA, but I like how Pandora Internet Radio provides songs with similar song qualities as a song or artist you input. They have a bunch of music majors analyzing songs. So far, I have liked their Aphex Twin-like tracks.

Dumpster Diving

2006-08-17T21:08:00.000-07:00

Diving for Dinner
The divers say its food wasted and it doesn't hurt the stores. The stores say they have legal liability and its a health problem. The stores don't say it, but it does hurt their profits. If people get food for free, they are not purchasing it. The stores are just sad that that they are not allowed to sell the food.

...the laws sometimes do not stop a local grocer I know, an outlet of sorts? and i've seen some suspicious bottles inside som hot fat #1.

The Ever Popular Poll Demonstrating People know Pop

2006-08-17T19:24:00.000-07:00

50% of all people are below average

18000 Hz

2006-05-25T18:37:00.000-07:00

The sound that repels youth I could here it, so I must still be young. I would have thought playing next to antares for so long would have done me in. Although anyone who listens to Aphex Twin (Ventolin)regularly can probably withstand (or enjoy) it.

New Term.

2006-04-20T20:02:00.000-07:00

Someone reports Apple Computers latest product before Steve Jobs gets to: theft. Stolen property. That is what Apple says. I think the effort to equate knowledge with chattel is assisted by the term intellectual property. Its not property. You can't hold it; you cannot stop the owner from using it; you cannot destroy it. We should use another term. For now I suggest: creative rights. Its a better description: society gives certain rights to creators. One cannot own rights; one cannot steal rights. But you can sue someone who infringes such rights. (Now you might argue that property itself is simply a set of enforceable rights. That may be true as far as legal philosophy, but its not how most people think about it.)

"Creative rights" would also reinforce the legal concept that the more creative an invention, writing, or trademark is, the more protection it receives. Nonfiction information gathered by a skilled researcher is certainly intellectual, but such information is not protected as intellectual property (however, a particular organization or expression of the information may be protected - the part the researcher creates, rather than discovers).

I would like a term that emphasizes the purpose of creative rights are to encourage creation and they are temporary, rather than reflect some natural right to control the manufacture and distribution of creative work, but I haven't thought of one. Err... transintelmonopoly? Creative rights is is.

Now, I just have to get the world to use it.

-

2006-04-17T19:37:00.000-07:00

Some of the same people who confidently quip that the Constitution is not a suicide pact are the same who fiercely believe interpretation the Constitution must closely hew to the world view and knowledge base of white men of 1793.

Acoustic Aphex Alarm

2006-04-17T18:19:00.000-07:00

I purchased Acoustica by Alarm Will Sound. A 22-piece ensamble covers Aphex Twin songs. Amazing.

"protectionism"

2006-03-20T22:56:00.000-08:00

I like most everything Daniel Davies writes.

A Grand Proposal

2006-03-18T12:35:00.000-08:00

Eliminate the caps-lock key.

Rarely used; should be used even less; a holdover from typewriters; accidentally hit they cause annoyance; space could be used for an italics key. a bold key, or put the control key there, or make a huge shift key, or let it be assigned to whatever function you might like.

Who decides?

2006-03-16T20:01:00.000-08:00

Scalia:

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check"
The 70-year-old justice said the public, through elected legislatures - not the courts - should decide watershed questions such as the legality of abortion.

And anyone who believes that the elected legislatures adequately reflect the views of the people needs a reality check.

Scalia would like to get the Court out of the business of determining what is moral. He sees a battle between a legislature and the courts. The real battle is between the majority and the individual. A court restricting a legislature is not determing what is moral, but giving individuals the the power to decide what is moral for themselves (so long as an action does not cause harm to others). Society has the ability to influence an individuals decisions.

Whatever happened to all that talk about how it is improper for a judge to speak about controversial legal issues that might come before them? Oh yes, that was bullshit.

Courtroom TV Confrontation

2006-02-14T14:51:00.000-08:00

The Sixth Amendment Confrontation Clause gives us the right "to be confronted with the witnesses against" us.

I was surprised to find the Eleventh Circuit en banc (10-3) held that a two-way video link -- such that people in the court can see and hear the witness and the witness can see and hear the defendant and the defendant's lawyer -- to witnesses in Australia who refused to come to America for a trial violated the Confrontation Clause.

My initial reaction was that obviously a two-way video link would satisfy the Constitution (so long as there was some reasonable reason the witness could not come to the trial). "The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford

The Court has previously allowed a one-way video link for the testimony of an allegedly abused child. The Court said there is no an absolute right to a face-to-face meeting with the witnesses,

The Clause's central purpose, to ensure the reliability of the evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding before the trier of fact, is served by the combined effects of the elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Although face-to-face confrontation forms the core of the Clause's values, it is not an indispensable element of the confrontation right.

I would argue that a video link is "face-to-face." You could argue that seeing a person in three dimensions assists in determining if they are telling the truth. I doubt the truth-detecting abilities of juries in any case, but I think Americans have more experience watching people lie on television than in their physical presence.

Ironically, the Eleventh Circuit held that because the prosecution could have used a pre-trial deposition, the video-link testimony was not "necessary." So, testimony made weeks before trial - when the trier of fact cannot observe witness demeanor - is okay, but a real-time video link is not. And, not only is a pre-trial deposition acceptable under the Confrontation Clause, but the fact that such testimony could be used means a video-link cannot be used. Odd.

Less is More

2006-02-14T14:25:00.000-08:00

The Ninth and Tenth Circuit have both held that although the text of a statute said an appeal must be made, "not less than 7 days after entry of the order," the Congress intended, "not more than 7 days after entry of the order"
And here is Howard Bashman spends 1,500 words to say: Because a lawyer might get confused, we should stick with a typo.

And, it is very unlikely any lawyer would be confused. Anyone involved in class action practice will quickly know this rule. If a lawyer was looking up the time period in which they must appeal, any practice guide book or annotated statute would tell them of the relevant court decision.

I would guess that his real concern is that he "operates his own appellate litigation boutique." I'm sure he would like to see very long time periods for appeals.

Ohio Might Ditch ID

2006-02-14T14:00:00.000-08:00

Hopefully, Ohio will reverse its model biology lesson plan.

According to the NY Times, the Discovery Institute,

released a Zogby International poll it had commissioned showing that 69 percent of Ohio voters believed that scientific evidence against evolution should be included in curriculums, and 76 percent agreed that "students should also be able to learn about scientific evidence that points to an intelligent design of life."

There may be popular support for teaching ID, but you wouldn't know it from this poll. I would support teaching "scientific evidence that points to an intelligent design of life," but it just so happens that no such scientific evidence actually exists.

Evolution, Conciousness, and Religion

2006-02-10T10:20:00.000-08:00

Daniel C. Dennett has a new book coming out Breaking the Spell : Religion as a Natural Phenomenon that argues we should scientifically study religion. I agree, but many people have already been doing this. I hear that he also lays out a hypothesis of how physical evolution and cultural change developed religion. I am not a fan of

In a Reason interview for another book, Daniel Dennett comments:

People confuse determinism with fatalism. They’re two completely different notions.
...
Dennett: Fatalism is the idea that something’s going to happen no matter what you do. Determinism is the idea that what you do depends. What happens depends on what you do, what you do depends on what you know, what you know depends on what you’re caused to know, and so forth -- but still, what you do matters. There’s a big difference between that and fatalism. Fatalism is determinism with you left out.

If I accomplish one thing in this book, I want to break the bad habit of putting determinism and inevitability together. Inevitability means unavoidability, and if you think about what avoiding means, then you realize that in a deterministic world there’s lots of avoidance. The capacity to avoid has been evolving for billions of years. There are very good avoiders now. There’s no conflict between being an avoider and living in a deterministic world.

Strait-up.

Although, I am not as enthusiastic about seeing cultural evolution through a Darwinian natural selection framework:

...contrary to some of the blather, you see that good, coherent, true scientific theories in general tend to win out over second-rate, formless, incoherent theories. We’ve improved our understanding of the world over the years. The good theories spread. Bad theories don’t.

Well, not always. Sometimes they get a foothold, and they’re sort of like diseases and they’re hard to eradicate, but those are the exceptions. I think it’s an uphill battle for falsehoods to get established.

While I'd like to think of some beliefs as a sickness to be treated, I am cautious about placing evolutionary ideas with normative concepts of what is good. Using evolutionary theory as a model for cultural change tends to muddle understanding of physical evolution and how physical evolution interacts with cultural evolution.

Reason: Think tanks like the Ethics and Public Policy Center and thinkers like Leon Kass and Irving Kristol seem very frightened about the moral implications of your project.

Dennett: They're scared to death of this ... The idea that they could save what they hold dear by making it magical, by embodying it in this little pearl of soul stuff, that’s superstitious thinking of the worst sort.
...
Reason: I actually suspect some of them of believing that you are correct. They just don’t want ordinary people to think about this stuff. They are afraid that if people believed that God doesn’t exist, then they might think that everything’s permitted.

Dennett: Yes. They don't want me letting the cat out of the bag. I think that’s incredibly paternalistic and arrogant. They underestimate the intelligence of their fellow human beings.
...
At its worst, it’s that paternalism: "I don’t need it, but look at all these childish people around me. They need it. I won’t dare walk the streets at night if my fellow man doesn’t persist in this delusion."

Yes, but then I think: what about all of the fellow men who have been assisted by a 12-step program looking toward a higher power, or the many testimonials of people saying their lives have been transformed in a very real way by belief in God?

The latest books seeks to open the door to answering this question: what causes belief, and is religion good for us? It looks as if DD sees much of religious belief as anti-truth meme desease. In the SFGate:

"Memes that foster human group solidarity are particularly fit (as memes) in circumstances in which host survival (and hence host fitness) most directly depends on hosts' joining forces in groups. The success of such meme-infested groups is itself a potent broadcasting device, enhancing outgroup curiosity (and envy) and thus permitting linguistic, ethnic, and geographic boundaries to be more readily penetrated."
Dennett admits that many of his claims are speculative.

Salon:

S: If society doesn't get its moral foundation from religion, where will that foundation come from? What will keep us being good to each other, if not rules laid down by God?
D: Rules that we lay down ourselves. We've been doing this for centuries. There've been revisions about what counts as a sin in God's eyes. It has changed quite a bit since the days of the Old Testament. It has changed because people thought about it hard and could no longer stomach some of the old rules and practices and changed their minds. It became politically obvious that something had to give, and so it has, and will continue to do so. Now we can continue to expand the circle and get more people involved, and do it in a less disingenuous way by excising the myth about how this is God's law. It is our law.
S:The political consequences of undermining faith are monumental, spurring riots and killings around the world. Are you -- is science -- willing to take responsibility for these deadly outcomes?
D:We cannot let any group, however devout, blackmail us into silence by their expressions of hurt feelings whenever they feel that we are getting close to the truth. That is what con artists do when their marks begin to get suspicious, and that is what children do when they can't have their way, and it should be beneath the dignity of any religious group to play that card. The responsibility of science is to safeguard the well-being of those it studies and to tell the truth. If people insist on taking themselves out of the arena of reasonable political discourse and mutual examination, they forfeit their right to be heard. There is no excuse for deliberately insulting anybody, but people who insist on putting their sensibilities on a hair trigger demonstrate that they prefer pity to respect.

This sounds like it could be a comment in response to the recent hub-bub over cartoons (although the cartoons could be closer to the "deliberately insulting" category, rather than scientific truth).

The Worst of All Worlds

2006-02-09T10:14:00.000-08:00

Conservative Hippies

Death By Chess

2006-02-08T17:46:00.000-08:00

at Yard Sale Addict

I concur

2006-02-03T20:58:00.000-08:00

I pretty much agree with everything Ronald Dworkin wrote concerning Alito.

Smokers, you enjoy tobacco taxes!

2006-01-16T16:52:00.000-08:00

Professor Sendhil Mullainathan has worked on a number of interesting behavior economics papers.

Tobacco Taxes make likely smokers happier. Using Data from the US and Canada along with excise tax changes in different States, likely smokers are happier with higher taxes.

I always thought it a bit unfair to target a minority group, usually of lower income, for special taxation when everyone else is unwilling to chip in, but it may be for the best.

You are more likely to support a politician because you voted for them. Using data from 19 and 20 year olds, who were either eligible or ineligible to vote in the prior Presidential election, the authors found the people who voted to have more polarized views on politicians, suggesting that people view a politician's behavior to agree with their own prior judgment.

I suppose this same effect occurs when someone publically supports a politician. They have to keep supporting them because otherwise they must admit they were wrong about the person previously. Does this explain insane arguments by self-proclaimed libertarians that the Bush Administration spying on US citizens illegally is no big deal? Or does it explain why I think Bush is evil, an idiot, or an evil idiot, when in reality he is a lovable manly man, fighting for The American Way? I am going to have to go with the former.

People with common black names on resumes get called back for interviews less often than those with common white names.

But this is hard to square with Levitt and Fryer's conclusion that there is no negative relationship between having a distinctively Black name and later life outcomes after controlling for a child's circumstances at birth.

Simple changes in how an offer of credit is presented can significantly change how many people will accept the offer.
A South African lender of short-term cash loans sent out tens of thousands of offers to prior customers with random changes in interest rates along with changes in the offer letter. Listing one payment plan, rather than three, significantly increased the applications for credit (equal to lowering the interest rate 2.3%). And for men, having a picture of woman on the letter, rather than a man, significantly increased the number of applications (equal to 4% change in the interest rate). A promotional giveaway can actually reduce the number of (attentive) people applying for credit.

Die already

2006-01-16T12:01:00.000-08:00

LA Times - Ailing Inmate Is Set to Die:

76-year-old murderer Clarence Ray Allen will be executed by lethal injection early Tuesday at San Quentin State Prison. . . . In prison [for murder], he offered $25,000 to fellow inmate Billy Ray Hamilton to kill people who had testified against him in the Kitts murder trial. After he was paroled, Hamilton killed one of the witnesses and two bystanders. . . . The inmate's lawyers said it would violate the constitutional ban on cruel and unusual punishment to take the life of a man who is so old and ailing. Allen, whose birthday is today, had a heart attack in September, is legally blind, has diabetes and uses a wheelchair.

If a proposition were on the ballot to end the death penalty in California, I would vote for it. Any deterrent value of the death penalty is more than offset by the high costs of imposing the penalty and of possible errors. However, of all the situations were a death penalty is most appropriate, it is this: a person in prison killing someone for participating in a trial as a witness.

Confinement was not sufficient to keep this person from killing. Another life sentence has no deterrent or retributive justice value.

And I can't imagine why it is more acceptable for the State to kill someone who is healthy than a person who is near death (unless you felt that keeping him alive in a painful state was superior punishment). Being old and sick does not make a person more worthy of forgiveness. One might think he would be less capable of hurting others, but he was able to kill three people without any physical act.

Right of Privacy Liberty

2006-01-15T12:51:00.000-08:00

Shorter Judge DeMoss: If the Constitution does not contain the word "privacy," you have no right of privacy. When the Supreme Court disagrees with my views, they are amending the Constitution.

It appears Judge DeMoss is not looking to be appointed to the Supreme Court with this op-ed. Like most op-ed's it overstates its case. I would expect more from a federal circuit judge.hat

He attacks the Supreme Court's holdings that we have a right to privacy, saying that because the words, "right of privacy" are not in the Constitution, such a right cannot exist. Instead of attacking the Courts recent decisions that downplay a "privacy" right and focus on "liberty" (a word found in the Constitution). This alone is unbecoming of honest analysis.

In the first cases finding a right to privacy -- Griswold and Roe -- indicated a right to privacy could be centered in the "penumbras of the Bill of Rights," the Ninth Amendment, or the Fourteenth Amendment.

The Judge writes,

. . . use of the word penumbra by the Supreme Court should be understood to mean that in the court's view the right of privacy exists somewhere in the region that surrounds and lies outside of the Bill of Rights.

But there is absolutely nothing in the text of the Bill of Rights about any such surrounding or outlying area, nor is there any catch-all phrase (like "other similar rights") indicating that the rights specifically enumerated exemplify a larger class of rights that were not enumerated.

There are major problems with this argument.

First, the Court did not -- and does not -- only rely on "penumbras;" it has centered the right to privacy, or liberty, in the Fourteenth Amendment. I don't care if we stop calling the right to privacy the "right to privacy" and start calling it the "right to liberty," the effect is the same: the government cannot take control of my body, or outlaw -- based on religious faith alone – private, consensual acts between adults.

Second, "penumbra" does not necessarily means something "outside the Bill of Rights;" one could just as easily think of a penumbra as the area necessarily between the rights. The Bill of Rights can be seen less as an archipelago, and more of as important landmarks within a larger state.

Third, and most importantly, their is text of the Bill of Rights containing a catch-all phrase: the Ninth and Tenth Amendments. Reasonable people can dispute the meaning and importance of these amendments, but the Judge's "absolutely nothing . . ." statement is false.

The Judge even discusses these amendments, often ignored by conservatives, later in the commentary,

The Ninth Amendment in simple plain English says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I think the most reasonable interpretation of this simple plain English is that the argument, "its not listed in the Bill of Rights, therefore, it does not exist" is a loser.

The Judge however levies this non-sequiter:

the Ninth Amendment gives us two instructions: first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is "retained by the people."

Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.

The Judge admits that a right to privacy exists in the Constitution! Clearly, this undermines his argument that because the word "privacy" does not appear in the text, such a right does not exist. Instead of giving up, the Judge implicitly creates a two-tier system for rights protected by the Constitution: The Court can protect your enumerated rights, but the Court may not protect your unenumerated rights. Why this distinction? No reason is given. It is odd that the people must act in order for the Court to enforce some Constitutional rights and not others. What purpose is a constitutional restriction when the only means of enforcing it is through the majoritarian political process? The right of a minority group would not be protected under such a system, and the right of a majority group would not need protection.

Fourth, the Constitution does address issues of privacy. The Fourth Amendment protects American from unreasonable searches and seizures. The Fourth Amendment does not give the reason why warrantless searches are objectionable, but the answer should be obvious: we have a right to privacy in our homes and in our bodies.

The Judge responds,

The fact that the Supreme Court has said that the right of privacy could come from the First, Fourth, Fifth or Fourteenth amendments is solid evidence that the court is just guessing about where it does come from.

Yes, the evidence is so solid. Solid like a rock. A big heavy rock. A huge two ton rock of DNA evidence solid. Anyway, the fact that a right to privacy could come from the First, Fourth, Fifth or Fourteenth amendment is solid evidence that the the right to privacy is pervasive in the Constitution. Solid, like a three ton rock-of-DNA evidence.

And lets point out another couple paragraphs that should make any honest federal judge blush with embarrassment:

Some argue that the Constitution must be a "living, breathing instrument". . . .

These folks operate on the premise that the Supreme Court is infallible and omnipotent, and that once the Supreme Court has spoken, there is no way to change its ruling.

Um... no. People who believe in a living Constitution do not think the Court is infallible or there is no way to change its rulings. To say so is dishonest.

The Judge's solution:

call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution.

He does not actually say what people would be voting on. I would vote down a proposal to let the Court amend the Constitution, but then again, I don't think they have.

What kind of referendum would the Judge like?

a majority of the people in each of a majority of the states

Such a referendum is designed to create the outcome the Judge wants. The less than 1 million people in Montana would have as much power as the 40 million in California. His preferred referendum would place the outcome in the hands of the sparsely populated rural states. As could be seen during the last election, most of the electoral map was red, but only one more state was needed for a Kerry victory. A majority of States are conservative on the issue of abortion, while a majority of people are not.

It is also odd that the Judge -- so opposed to extra-Constitutional action by the Court -- would propose a referendum to settle the issue (again, I note that he doesn't exactly say what the issue is), when such an option is not enumerated in the Constitution. If the Judge wanted to constrain the Court through a Constitutional process, he should propose an amendment to the Constitution. The reason why such an amendment is not offered as a solution: it would never pass.

I feel sorry for any litigants coming before this ol' coot. His reasoning is guided by the outcome he prefers.

And this is not to say that I think Roe was correctly reasoned at the time, or that there are not legitimate arguments that Roe was wrongly decided or should be overturned. This Judge did not make an honest argument.

I empathize with your lack of empathy

2006-01-12T15:55:00.000-08:00

Hector's father dies in a car accident. His friend, Anita, says "I know how you feel." Hector responds, You don’t know how I feel!"

Ramsey McNabb argues that "You don't know how I feel!" is an inherently contradictory statement: You would have to know how the other person feels in order to know that they could not know how you feel. If you can know how someone else feels, it is possible that they would know how you feel. If you can not know how someone else feels, it is possible that they are feeling what you are feeling and you wouldn't be able to know either way.

I think he is wrong for two reasons:

I. Empathy is not necessary to determine if humans can be empathetic in a particular situation.
It does not necessarily take empathy to know that people have different experiences, nor does it take empathy to see how different people possess different neural networks in their minds, that they react differently to similar events, with different mental responses to sensory input. Some of these things can be tested physically, rather than simply relying on philosophical conjecture. For example, as a real-world empathy test, you could run a CAT scan or MRI of three groups: those whose father just died; those whose parents are alive, but imagining that their own father just died; and a third group whose fathers died some years ago and ask them to imagine the time when their father died and feel like they once felt. I suspect, akin to other experiments that have been performed, when people imagine an event the mental response looks very similar to actually experiencing the event. But, if there is a difference between the categories, or -- just as important -- significant differences within each categories, you could then make a very plausible claim that a person does not understand how you are feeling when your father dies. Even if there is overlap between the groups, you can make the claim it is unlikely that any one person knows how you feel. While either Hector and Anita could be wrong, you could say that one is much more likely to be wrong than the other.

II. Empathy does not have to be all or nothing.
As a basis for believing that we can guess how other people feel, we assume that everyone has a similar mind, with similar responses to similar experiences. Then, we can make an educated guess that people that are relatively similar and have similar responses to experiences have the ability to empathize about those experiences. However, if a person knows that they could not comprehend a feeling before the event happened to them, they have reason to believe that other people cannot comprehend their feelings. Here, you are able to empathize to a limited extent, to being able to empathize with some feelings or experiences but not others. Thus, Hector can empathize with inability of Anita to empathize about his father's death.

For example: being sick. I am not sick. I talk to a friend on the phone who has the flu. I say "That's awful. I know how you feel," having had the flu last year. Then two weeks later, I come down with the flu again. I realize then that I was not truly understanding how bad my friend felt. Even though I had the flu two years ago, I could not properly remember how truly awful the feeling of having the flu is. A week after I recover, I remember that I could not properly empathize with my friend about a month ago, and soon I will again be unable to empathize with another person with the flu. However, I will be able to remember that I was unable to empathize. Thus, I know that I cannot know how another person is feeling when they are sick, and if they are like me, they cannot know how I am feeling during such an event.

In order to defeat your argument that denial of empathy presents a paradox, Hector only needs to believe that one can only empathize with the inability to express empathy.

Forced abortion, or consensual abortion, whats the diff.?

2006-01-11T18:06:00.000-08:00

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court:
COBURN:

If I'm driving a car today and I hit a pregnant woman who has a 36-, 37-week fetus, and the woman survives and the fetus dies, I can be held accountable for the death of that fetus. And by law we value that as a life -- unborn but a life.

If I say -- I'm the pregnant woman -- I want to terminate that fetus at 37 weeks, there's nothing in this country today that keeps me from doing that, even though on one side of the law we say it's a life.

How did we get there to where it's not life or it is a life? Tell me. Can somebody logically explain that to the American people that how, if I kill it, it was a life, but if I choose to take it voluntarily, it's not a life?

If I go into a woman's house today and force her to have sex with me for 36-, 37- minutes, and the woman survives, I can be held accountable for having sex with that woman. And by law we value that chastity of the woman.

If I say -- I'm the woman -- I want to have sex with a man in my house for 37 minutes, there's nothing in this country today that keeps me from doing that, even though on one side of the law we say it's a rape.

How did we get there to where it's not rape or it is not a rape? Tell me. Can somebody logically explain that to the American people that how, if I fuck someone without permission, it was a rape, but if I choose to take it voluntarily, it's not a rape?

...and what does Alito say?

[T]ort [law] can be created that applies in the situation of the auto accident you mentioned, or a legislature may choose to structure the tort law differently.

But that's been a decision that's been left for the state legislatures to decide[...]

The second, of course, is the issue of Roe and the cases that follow after it. And those are based on an interpretation of the Fifth Amendment and the 14th Amendment of the Constitution, and they are not the result of legislative decisions made at the state level or at the federal level.

Alito's answer is "good" only in the sense that it maximizes his chances of being appointed to the Court. Otherwise, he misses several obvious distinctions. I am sure tens of thousands of people are willing to educate Coburn and The American People why punishing a person who kills a fetus without the consent of the mother is different than punishing a woman who decides not to continue to allow a fetus to grow inside her, but I doubt he would want to listen.

On a related matter, I don't like the "life" vs. "choice" word battle. I think instead of choice the Senators could talk about a women's control over her own body, and frame the anti-abortion crowd as people who not only want to take away choice, but want to have control over women's bodies. Conservative anti-abortion policies could be tied into the Conservatives' desire to control end of life decisions by not letting people choose to refuse medical care; Conservatives' desire to control what medicine people can take by outlawing medical marijuana; Conservatives' desire to control with whom and how you can have sex by outlawing consensual sex between homosexuals or even sodomy or oral sex between a married couple of a man and a woman; Conservatives' desire to control you family planning by eliminating access to birth control. Its more than a woman's choice, it is control over our bodies.

I like 'um short and fat

2006-01-07T09:07:00.000-08:00

Here

...bartenders poured an average of 20.5 per cent larger shots into short, wide glasses than into tall, slim ones.

Ahrnold II

2006-01-06T18:24:00.000-08:00

As Golden State writes, Arnold has made a State of the State speech that proposes many of the very things he has vetoed over the last year. And, just like during the recall election, Arnold says, "Caleefornia, I propose we have a free lunches." Sorry, no free lunches are available. During the election, he said that he wouldn't cut education, would not go deeper into debt, and wouldn't raise taxes. He cut education, went deeper into debt, and didn't raise taxes. Now, he says that he will not cut education, will increase infrastructure spending massively, and will not raise taxes. The solution? Debt. Which will force spending cuts or higher taxes in the future.

At least he did an anti-Bush: admit he done wrong; say he would change. I hope he is serious, but his election campaign was all show and I suspect more of the same.

Oop: I just heard on the radio, he proposes a $3 monthly "fee" for every household consumer of water, and $10 for commercial use. So, he will raise taxes. And he will raise them in a way that disproportionatly affects the poor and those who use less water.

A forty for you life? Make it a Old E.

2006-01-05T21:01:00.000-08:00

An article by Steven E. Landsburg, who will not be teaching my children anything, condemns another YucatanMan
, arguing that poor people who cannot pay their medical bills should not be given medical care, even if it means that, as a direct result, they will die. On a ventilator and conscious, but can't pay? Die. And, he argues this is the compassionate thing to do. Why? Because he suspects this particular poor person, if they had been given the choice between $75 in cash and an insurance policy that paid for ventilator care (although such choice they did not have), would have chosen the cash.

Once again, a simplistic economist gives the social science a bad name.

Of the reasons why he is unfairly attacks the YucatanMan, and why his argument fails:

1.The YucatanMan's main point was that conservatives who claim to be for a “culture of life” and went to great lengths to keep alive a liquefied brain, do not give a shit about a poor conscious person, or anyone in need of health care who cannot pay. Landsburg does not address this hypocrisy. I wonder which political party he votes for?

2.He argues that the question of how much assistance to give the poor and what assistance to give them are completely separable questions. Thus, he assumes government first decides how much to spend on the poor, say 5% of GDP, then decides how that amount will be distributed. Alas, the system does not function that way. A cut in health care will not be met by an equal increase in cash payments. In reality, advocates for social spending maximize support by focusing on particular issues that connect emotionally with people.

3.He assumes that one poor person is equal to another. Giving $75 to a poor, healthy 21 year olds is equal to giving the same amount of care to people in need of emergency health care who would otherwise die. Most people do not see it this way. For obvious reasons, one person is clearly in more need than the other.

4.He assumes that people simply wish to transfer wealth to the less fortunate; two things of equal value to the recipient are perfect substitutes. However, this is not the case. The person giving, or society though government, has different interests than the potential recipients: Some people don't give cash to a person who begs because they worry the money will be spent on something they do not approve of, such as alcohol; instead, they give money to an organization that provides food and shelter for the needy (while some people give the money anyway, knowing they would not give to a charity later – this is connected to #2 above, most people do not first decide how much to give then divide it up, they give as they come upon the need).

And I am much more sympathetic to his argument than most people. For example, people are much more willing to pay to help others when the risk of harm is close in time and the person harmed is clearly identified. People will pay to sew up a gun shot wound, but not for a vaccinations that will cost less and save more lives. I see refusing to fund a vaccine that will save many lives the same as refusing to treat a person in the emergency room with a gun shot wound, but refusing a person in direct peril is severely condemned, while ignoring the peril that afflicts many is simply a bland negligence we all engage in. I could imagine a social policy where some heartless seeming decisions are made: I do not support Siamese twins with a 50% chance of living with severe brain damage after receiving an operation costing one million dollars when other more pressing medical needs are not being met (I heard about this on TV years ago. After hearing about the story, people called and and gave money for the operation. I don't know what happened).

This point has been made before, by people much more evil than I: One death is a tragedy; a million is a statistic.

Why Angry Little Owl is so cute

2006-01-03T18:12:00.000-08:00

Its the big round head.

Kitzmiller!

2005-12-21T20:47:00.000-08:00

Intelligent Design Creationism lost after having its 6 weeks in court. I was heartened not only by the result, but the forceful opinion. Like the Judge wrote, the trial and the opinion will be a valuable resource to anyone who is curious about the merits of ID as a form of science.

It is interesting to note that the legality of a school board's action, in part, depends upon their intent. In this case, the school board was clearly motivated by a religious belief in creationism to include a warning against the Theory of Evolution and to promote Intelligent Design Creationism.

How would the case have faired if the board had listened to ID proponents as well as scientists and decided that it would be in the best interest of children to learn about both ideas? One of the Defense expert witnesses, David Fuller, who is no religious fundamentalist, thought that ID should not be excluded from the classroom because it might spark interest in children to persue science. He notes that many scientists have been inspired by religion and the belief in God. If belief in God has been shown to inpire an interest in science, could teaching ID have a secular purpose of motivating children to learn? This is an interesting argument, but one could just as easier argue that Protestantism should be taught in schools because it encourages a strong work ethic, or you could argue that a law forcing everyone to attend church is secular because reminding people about God's love encourage lawful behavior. That religion can inspire is not enough to justify the government proselytizing. I think there is an important distinction between a religious motive to explore science and religious beliefs attempting to be labeled science.

I think the easy answer to the question above is that it would never happen. A thoughtful person who honestly wanted the best education for children would not present ID in a classroom other than a discussion of logical fallacies, or in a discussion on the philosophy of science, or Epistemology in general.

While they might not have liked it as much, the Dover board could have used the National Academy of Sciences statement on science

Science is a particular way of knowing about the world. In science, explanations are limited to those based on observations and experiments that can be substantiated by other scientists. Explanations that cannot be based on empirical evidence are not a part of science.

They could go on to say that "explanations that are based on a faith, such as a belief in God, are not science because they are not based on observations and experiments that can be repeated by others. Science does not make a judgment about the supernatural, or knowledge based on belief in the supernatural."
This gets them half-way to where they want to go, and would not run into any legal problems.

The ID movement is a group of disjointed arguments most of which are distortions, misunderstandings, and lies about evolution; other arguments are simply poor analogies. The only bit I would consider serious a somewhat interesting (and a plausible basis for a legal challenge) would be the attack of evolution as an attack on the philosophy of science. As noted above, science does not, and can not, investigate claims of supernatural events. It begins with idea that (without any physical, measurable evidence) there is no God intervening in human affairs. If God came down and healed and created under controlled conditions, God would be a part of science, but as it is He remains mysterious. Thus, ID'er claim science assumes no God exists, just as much ID assumes God exists. Since both implicate religious beliefs, either both or neither should be taught in schools. However, this attack is against all science and not just evolutionary theory. To accept this attack is to doubt the amazing predictive power that science has been shown to demonstrate. One of the reasons the Dover board lost their case was that the statement about evolution being merely a theory, not a fact, focused on evolution alone, singling is out as a subject to doubt. I think this focus on evolution exposes the attack on the philosophy of science as just a convenient argument.

Believe Me; I'm Not Famous

2005-12-10T13:07:00.000-08:00

New Yorker Book Review of Expert Political Judgment: How Good Is It? How Can We Know? by Philip Tetlock.

He conducted a twenty year study asking 284 of those who opine on economic and political matters their predictions on future events. The conclusion: they stink.

The accuracy of an expert’s predictions actually has an inverse relationship to his or her self-confidence, renown, and, beyond a certain point, depth of knowledge. People who follow current events by reading the papers and newsmagazines regularly can guess what is likely to happen about as accurately as the specialists whom the papers quote.
...
Knowing a little might make someone a more reliable forecaster, but Tetlock found that knowing a lot can actually make a person less reliable.... The expert also suffers from knowing too much: the more facts an expert has, the more information is available to be enlisted in support of his or her pet theories, and the more chains of causation he or she can find beguiling....

Most people tend to dismiss new information that doesn’t fit with what they already believe. Tetlock found that his experts used a double standard: they were much tougher in assessing the validity of information that undercut their theory than they were in crediting information that supported it....

Tetlock found that, consistent with this asymmetry, experts routinely misremembered the degree of probability they had assigned to an event after it came to pass. They claimed to have predicted what happened with a higher degree of certainty than, according to the record, they really did.... Plausible detail makes us believers....

In 1982, an experiment was done with professional forecasters and planners. One group was asked to assess the probability of “a complete suspension of diplomatic relations between the U.S. and the Soviet Union, sometime in 1983,” and another group was asked to assess the probability of “a Russian invasion of Poland, and a complete suspension of diplomatic relations between the U.S. and the Soviet Union, sometime in 1983.” The experts judged the second scenario more likely than the first, even though it required two separate events to occur.

And, like most of us, experts violate a fundamental rule of probabilities by tending to find scenarios with more variables more likely.

"why some people make better forecasters than other people":

Low scorers look like hedgehogs: thinkers who “know one big thing,” aggressively extend the explanatory reach of that one big thing into new domains, display bristly impatience with those who “do not get it,” and express considerable confidence that they are already pretty proficient forecasters, at least in the long term. High scorers look like foxes: thinkers who know many small things (tricks of their trade), are skeptical of grand schemes, see explanation and prediction not as deductive exercises but rather as exercises in flexible “ad hocery” that require stitching together diverse sources of information, and are rather diffident about their own forecasting prowess.

I'd like to think that I am a fox and that my predictions will be better, but then thinking I am a fox means I am expressing considerable confidence that I am already proficient at forecasting, meaning I am probably a hedgehog, however, this back and forth of uncertainty within this sentence leads me to the certian conclusion that I must be a fox! (And I am very much unfamous, that helps).

But seriously folks, the problem of confirmation bias is a serious one. Honestly, I do try to ask myself occatinally whether I am just as myopic as many of those I disagree with. I do tend to read things that I find agreeable; and when I read things I disagree with, I suspiciously consider each claim and think or reasons why the analysis is faulty. I tend to dismiss very strong statements as mere puffery when coming from a source I agree with, while I label similar statements by others as deceptive.

While he found there was no partisan bias in the distribution of foxes and hedgehogs among the experts, I wonder if that would hold in the general population? My confirmation bias says not, but if I had to predict with some money on it, I would say yes.

And of course, isn't this fox/hedgehog dichotomy sound an idea a hedgehog would come up with? I suppose the answer is that yes, its simplistic, but simplicity is useful in communication.

KQED had a program on recently with "IDEO General Manager Tom Kelley on Innovation." I found him to sound like a self-help guy for people who want to make their business work better... and full of shit. What turned me off was his disdain for the "devil's advocate" character people play in a discussion regarding a new idea. He imagines that many great ideas have been stifled by the devil's advocate. I am wondering if this guy has read his history (the Bay of Pigs?!) or has read the paper in the last 6 years (Dot com bust? AOL-Time Warner Merger? War in Iraq?). You would think a person who works in the technology field would be well aware of the dangers of positive thinking and dismissing criticism ("No, really, its a new economy. P/E ratios no longer matter.") He is a hedgehog promoting hedgehogism with little more support than repeating pleasant anecdotes (while ignoring the failures) and a persuasive tone of voice. Sure, companies should focus on innovating, but attempts at innovation can often be more damaging than the status quo.

The reflexive nature of an expert book on experts reminds me of the book on memes which forwards an idea that itself can be considered a meme.

A small bear

2005-12-02T20:28:00.000-08:00

A Man's Right to Choose

2005-12-01T23:20:00.000-08:00

It appears there is but one Hastings faculty blogger, Ethan Leib. Unfortunately, he writes shit like this: PrawfsBlawg: A Man's Right to Choose. He says because women get the choice of having an abortion, men should have the choice of disclaiming a child to avoid child support payments. Let me note a couple big reasons why this is dumb: children have a right to support from their parents; women grow children inside them for 9 months, giving birth or an abortion has medical risks and requires significant emotional and physical commitments, while a mans role in creating a child is done; determining when a man was significantly careful (or had time to claim they wanted an abortion) would be costly and uncertian, making non-payment of child support even more common.

Then he links to this NYTimes op-ed which says, "NOBODY is arguing that we should let my friend who impregnated his girlfriend off the hook." (all caps in original) Except Mr. Leib it seems. Instead Dalton Conley thinks "If a father is willing to legally commit to raising a child with no help from the mother he should be able to obtain an injunction against the abortion of the fetus he helped create." A man gets to control a woman's body if he makes a promise to give himself total control over the child? Do I have to list the reasons why this idea is dumb? I find these people objectionable.

Oh yeah, the big problem with society today? Discrimination against men.

"Next Blog" finds something interesting!

2005-12-01T18:54:00.000-08:00

angry little owl found this, Rare Neutral Milk Hotel Demos Surface

Pay for Grades

2005-12-01T09:35:00.000-08:00

NYPost:

Under the pilot, a national testing firm will devise a series of reading and math exams to be given to students at intervals throughout the school year.

Students will earn the cash equivalent to a quarter of their total score — $20 for scoring 80 percent, for instance — and an additional monetary reward for improving their grades on subsequent tests.

The difference between a 70 and an 80 is $2.50? Not much of an incentive to work harder. Maybe the scheme is more complicated than the article says.

How the cash will be distributed are still being hammered out. The cash could possibly be invested in a college or high-school fund for each student

Even an extra $50 would not mean much to a low performing student in the form of a college fund. Give out the cash on the last day of school.

some arguing that they discourage kids from embracing learning for the sake of knowledge.

I can understand that feeling. It would be nice if all the children worked hard to learn, but in that case grades can be seen as counterproductive. Giving money could insulate a student that wants to learn from a environment hostile to learning. Money gives an easy justification for caring. "I like learning." is more likely to get a person beat than, "I want the cash."

Frivolous Lawsuit.

2005-11-29T14:32:00.000-08:00

On November 2nd, the Ninth Circuit affirmed a District Court ruling in Fields vs. Palmdale School District (pdf) that there is no Federal court remedy for parents whose children have been exposed to sexual content at school. The school asked elementary school parents to sign a consent letter to let their children participate in an "assessment is to establish a community baseline measure of children’s exposure to early trauma (for example, violence)." Unfortunately, the school did not indicate that questions would include "sexual topics such as the frequency of 'thinking about having sex' and 'thinking about touching other peoples’ private parts.'" Angry parents sue.

And the House has passed a resolution (320-to-91) requesting the Ninth Circuit to rehear the case.

The hostile reaction of conservatives to this rulings demonstrates "judicial activist" is an insult without substance. They don't want the courts involved in deciding the religious content at schools (prayers at graduation, the pledge to God, Intelligent Design), but they do want the court involved in regulating sexual content. If activism meant anything, conservatives (as at least one does) should be supporting the Ninth Circuit decision.

The federal court's involvement in regulating sexual content of education would be far more activist than limiting religious indoctrination. The First Amendment explicitly mentions the government cannot establish religion. There is no Constitutional text dealing with sexual information.

Liberty Counsel represents the plaintiffs. In their petition for the case to be reheard they argue

If the ruling stands, . . . public schools must come with a warning: CAUTION! Your parental rights are severed when you drop your child off at school. You will have no input whatsoever or right to object to any instruction or materials, sexual or otherwise, presented to your child during the school day. . . . the panel's decision says: "Parents - keep your mouth shut. Susie belongs to the school. So get lost!"

There is a simple, democratic solution to objectionable school material: pressure elected officials to change the content. The panels decision says: "Parents – Stop using federal suits to get publicity. Your protests belong at school board meetings. So get lost!"

I hope the Ninth Circuit takes the case. I would expect an overwhelming confirmation of the panel decision. I would like to see the Supreme Court take the case and would expect a unanimous opinion against the parents. Because the panel decision is obviously correct, and taking the case will only generate more negative publicity from right-wing organizations, neither court is likely to take the case.

Congress' resolution is simply political theater, a jab at the Judicial Branch to insulate themselves from being accused of supporting asking sex questions to six year olds next year. If Congress really wanted the decision reversed, they could simply pass a law stating that federal education dollars will only be given to States that require parental notice and approval of all instruction involving sexual materials. I think that such a law would be costly to monitor, unnecessary take control of an issue that should be left to local government, and would be unlikely to change what actually occurs at schools, but it could be done.

Foreign Caselaw in the Supreme Court

2005-11-21T16:54:00.000-08:00

In hisprepared remarks Al Gonzales is concerned. He says "we must protect at all costs . . . the American dream . . . written into the fabric of out Nation through the Constitution." What is this threat to the American dream? The Supreme Court citing foreign legal cases. That and the gays, of course.

Certain members of the Supreme Court appear today to be . . . consider[ing] evolving, contemporary legal judgments and policy preferences of other nations. It appears to reflect a view that such foreign legal judgments and policy preferences are somehow relevant in defining the terms and limits of our Constitution.

The legal judgments and preferences of other nations are "somehow relevant" to applying the Constitution because all nations deal with similar human struggles. Americans are not genetically abnormal. Ideas of fairness, justice, and freedom are usually understood to apply universally without respect to geographic location. To suggest otherwise -- that justice or immoral conduct depends upon location or culture -- is to support relativism. I note the irony that conservatives often attack their opponents as relativists and claim Truth is not relative. If truths are not relative, looking to other cultures institutions for guidance should be natural and appropriate.

[T]he growing tendency by some members of the Court to look to precedents from overseas in construing the Constitution has a direct impact on [the Department of Justice's] work.

I believe Gonzales gets the issue wrong on a basic level. He say the Court is looking to overseas cases in construing the Constitution. The Court does not look to foreign cases to construe the Constitution, rather they look to foreign cases as a source of thoughtful decisionmaking, and possibly as helpful in applying the policies outlined in the Constitution. It is important to distinguish between construing the constitution and applying a doctrine based on that construction.

Applying the Constitution requires the application of facts and logic. For example, the Constitution says that no State shall "deny to any person within its jurisdiction the equal protection of the laws." What "equal protection" is depends upon how we factually understand the world around us. At the time of the passage of the Fourteenth Amendment women were widly considered (by men) less intelligent and capable in many ways than men. Laws that restricted women from managing property or becoming members of the bar might not be unconstitutional under this archic belief system because treating women differently would be completely rational and appropriate. However, this view was incorrect. Knowing what we do today, discriminating based upon gender in these ways is abhorrent. The Constitution did not change, but our application of the Constitution changed depending upon the facts as we know them.

Foreign case law can assist in applying the basic principals of the constitution because other courts have faced similar problems in deciding what fundamental right human beings have; similar issues of contested facts have been presented; or similar policy issues must be balanced. Just as the Court can look to lower court decisions and law review articles, looking to foreign cases allows for another perspective on a difficult issue. Why should the Court be excluded from reading (and pointing to in its opinions) foreign opinions when it can cite to any third rate law professor without any controversy?

Gonzales:

I think it trivializes constitutional inquiry if we cite foreign sources to provide additional support for a conclusion that we already were going to reach based on more traditional sources.

He appears to believe a the result in a case flows directly from "sources," leaving out the fact that applying a general principal of law in a particular case takes facts and logical reasoning. Whether executing juveniles is cruel depends may depend upon our understanding of brain development and the probable effects of such a law (execution would be less "cruel" if it acted as a strong deterrent to crime). All nations -- save the US -- had banned the execution of those convicted as juveniles; looking to the reasons and facts that supported those decisions is important. These foreign opinions can be considered traditional sources under a different title.

This ties into the basic questions of how the Constitution should be interpreted. If you are a certain type of originalist, which I will call a strong-originalist, the Equal Protection Clause could not be used to strike down laws barring them from becoming lawyers or laws that give exclusive control of a wife's property to the husband. Nor could the Constitution have required desegregation of schools. At the time of the passage of the Fourteenth Amendment the authors and the public enacting the law never expected it would overturn these practices. Looking to the expectations of the framers and the public, a large amount of discrimination based on race and gender is acceptable under the Fourteenth Amendment.

This form of originalism is supported only when it doesn't embarrass the proponent. Originalists don't like to argue Brown v. Board of Education was decided incorrectly because it makes them look like racist assholes, but they might not be afraid to condemn homosexuals as unprotected by the Constitution based on the 1850's understanding that homosexuality is immoral (because they don't mind looking like anti-homosexual bigots). And they don't mind applying strong-originalism to the scope of the Commerce Clause. And to add to the hypocrisy, they often claim affirmative action programs are unconstitutional, when they would clearly be allowed under an originalist understanding.

Some more,

Frankly, I don’t know how we begin to identify the relevant universe of foreign sources and precedents that might be deemed persuasive by one or more Justices.

"Whaaaa! Its really hard work to look at foreign law!"

My point is simply that relying on foreign law to interpret our Constitution appears to create more problems than solutions.

My point is that the Court does not rely on foreign law.

Mostly, the argument against citing foreign law is just hyperbole meant to fire up the judge-hating, ten-commandments crowd:

Those who seek to enshrine foreign and international law in our Constitution through the courts...

Who are "those" I wonder. Nobody I have ever read about.

It All Depends on What the Meaning of Torture Is

2005-11-21T13:24:00.000-08:00

Bush and crew often respond to questions regarding US policy on the interrogation technologies captured with digital cameras and placed on the internets with a simple, non-responsive statement: "We do not torture." They do not say, “We do not abuse prisoners,” or, “Prisoners are not beaten or terrorized.” They will not discuss what they consider to be torture, only that "we" don't do it.

The common understanding of sexual relations includes oral sex. And the common understanding of torture includes "Water Boarding" and "The Cold Cell." Clinton lied about an affair. Bush lied about approving torture:

The CIA sources described a list of six "Enhanced Interrogation Techniques" instituted in mid-March 2002 and used, they said, on a dozen top al Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe. According to the sources, only a handful of CIA interrogators are trained and authorized to use the techniques:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

Imagine if Saddam had done this to a US soldier. No one would hesitate to call it torture.

Unfortunately, speaking in simple plain sentences does not necessarily mean one is "plainspoken" or a "strait shooter." I have thought for some time that Bush's seeming inability to actually say something meaningful has been a political benefit. Sure, a few people might call him dumb, but nonsensical, vague and incoherent statements sound good to most people without actually committing him to any detailed position (which could then be attacked).

With respect to torture, he can always say "We don't torture." Instead of conforming US interrogation policy to not include torture, Bush simply redefines torture to exclude what the US does (Water boarding just isn't painful enough). Instead of ensuring no US government officials are torturing prisoners, Bush redefines "we" to exclude those who torture, e.g., the "bad apples" of Abu Garib.

As an added bonus "We Don't Torture" is a present tense statement. When confronted with torture of the past they can say, "Well, we don't torture, now. It isridiculous to think we torture now. It must have been some bad apples."

Not only is torture illegal and inhuman, it also gets you bad information:

Ibn al Shaykh al Libbi, after two weeks of [torture], made statements that were designed to tell the interrogators what they wanted to hear. Sources say Al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being water boarded and then left to stand naked in his cold cell overnight where he was doused with cold water at regular intervals.

His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons.[...]al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.

Of course, that depends on what your definition of "bad" is.

see Balkinization

When Law Professors Run Out of Good Ideas

2005-11-21T00:09:00.000-08:00

Or, "A Simple Proposal to Eliminate Dumb Law Review Articles": Tenure, or other academic awards, should be given based upon a randomly selected article multiplied by 2/3 of the number of articles written. Professors would then be deterred from writing stupid crap like this: A Simple Proposal to Halve Litigation Costs - David Rosenberg & Steven Shavell

The dumb idea:

Under the proposal (1) only half the cases brought before a court would be randomly chosen for litigation, and (2) damages would be doubled in cases accepted for litigation.

Let us list some of the problems:
1. Its probably unconstitutional. If "Due Process of Law" includes the right to engage in sodomy, you probably have the right to take your legal claim of wrongful death to trial.
2. Jury Nullification. Because juries would know damages would be doubled, they are likely to reduce the award.
3. Differences in risk aversion. The paper takes as a given that Plaintiffs and Defendants are equally risk adverse overall, and in every particular case. There is no reason to believe this is true. Imagine a large insurance company that deals with many cases vs. a plaintiff with only one personal injury, say, paralysis. That injured person will want a recovery to pay for their medical bills, lost wages, and so forth. They will be very adverse to receiving nothing. The (big) insurance company will be indifferent between $0 and a double award. They can use this leverage to negotiate a lower settlement value. As part of this strategy, they should let a number of cases go through random elimination to encourage other plaintiffs to settle (proving they are willing to accept double damages). Plaintiff's lawyers may have a lot of money, but they are not allowed to shift money from one successful plaintiff to another.
4. More defendants will become judgment proof. If the expected damages are above half of the net worth of the defendant, they will have an incentive to risk the 50/50 chance they will avoid any damages at all. This will harm plaintiffs by either reducing the settlement amount or giving them no recovery.
5. Some clearly wronged plaintiffs will receive nothing. Besides this outcome being undesirable, the proposal would be repealed by angry human beings who look to the justice system for justice, not economic dollar-based efficiency. If the proposal was not repealed, I would expect to see more vigilante justice and domestic terrorism.
6. Need I go on?

I have had a number of dumb ideas (lets call them "thought experiments"), but I don't publish them. It seems the Virgina Law Review read the authors resumes rather than the Proposal.

I Condemn Randy Cohen and "The Ethicist"

2005-11-18T16:09:00.000-08:00

Let me start by saying that I do not have a problem with Randy Cohen's advice for the most part. He often discusses some relevant concerns and then give reasonable, if debatable, advice. But lo! Notice how I write "advice." For he writes and advice column, not a column on ethics. He is no ethicist. And certainly he is not "The Ethicist."

What makes him different from the Ann Landers or even Dan Savage advice columnist? Not much. He just has a different NYT audience that enjoys affirmation in column having a upper-middle-class moderate-liberal sensibility with a few quips thrown in. Now Mr. Cohen, Quips are ok, but don't get too clever; this isn't McSweeny's.

Let us look at his latest piece of work revealing modern ethical cannons from life's daily dilemmas:

Q: I lent a friend a car while her husband was away on a fishing trip. Coincidently, a neighbor's wife was away that week. My car was seen in the neighbor's driveway overnight, easily recognizable because of my kid's college decals plastered on it. A few people have inquired about my car's being there overnight. How do I explain without ratting out my friend? C.W., Atlanta

After a failure at humor lasting sixty-six words, Cohen writes,

The best way to protect your own reputation without either lying or betraying your friend is to say nothing.

He sees the true issue: how to protect one's reputation. How ethical! Note, there is no discussion of the ethics of lying, betraying a friend, saying nothing, or how saying nothing might be construed as something akin to a lie.

Just mumble vaguely and change the subject; these things have a way of blowing over. It's impressive how quickly most of us return to thinking only about ourselves.

This mumble vaguely strategy would appear to be more effectively deployed in answering letters that in person. "What did you just say?" "No, really, why was the car there?" "What do you mean mumble vaguely? What am I to mumble?" How ethical is it to call yourself "the ethicist," then dodge questions and get paid for it?

Moving on,

Next time your friend borrows your car...

The person did not ask about "next time." Or how to discuss the matter the the "friend." He moves the ethical discussion to another, more easily answered, issue: when can a friend borrow a car and what limits can be imposed? His answer: you don't have to let someone borrow your car. Ok, can we get back to the question?

Then, the concluding paragraph,

While it is not within the purview of my column to suggest better tactics for assisting adultery...

The paragraph suggests a lie that would explain the car being in the driveway: to say she let the neighbor borrow it. He judges his advice, "questionable ethics, but fine craftsmanship." Very good, dear Mr. Cohen! How cleaver you are. Of these questionable schemes, quite a craftsman you are! Perhaps not? Why did she let him borrow the car? What if the neighbor's car was also there? What if they don't know each other well? "His car was not working." C.W. might say. But this is just the start of a tangled web: Imagine the wife comes home and someone asks her if the family was having car trouble.

Furthermore, Mr. Cohen could show a little more skepticism of the writers motives. "Yeah, so I have this, uh, friend, and, uh, she wets the bed... She was wondering..." Note that the person requesting advice is "C.W." While other questioners give a full name.

Now I have mocked Mr. Cohen for his incomplete advice and self-admiration, but my condemnation does not rest on the limited usefulness of his advice. He simply did not discuss the ethics of the situation. You could say that there were two sentences that implicitly carried ethical assumptions. The first, “The best way to protect your own reputation without either lying or betraying your friend is to say nothing." Indicates that "lying" is wrong, and possibly answering a question honestly in a way that would harm a friend. And later the "questionable ethics, but fine craftsmanship" line. Here it is implied that conspiring with a suspected adulterer in order to create a believable lie might be wrong.

You could forgive a less than full analysis -- given the word limitations of a column -- if he didn't waste so much time on attempts at humor, or in addressing questions that were not asked.

I am not here saying what should be done in this situation, but that Mr. Cohen ignores all of the major ethical questions raised: What duty to we have to tell the truth? How does our relationship with who we are speaking affect this duty? When is lying or hiding information to protect the interest of a friend acceptable? Do we have a duty to protect members of our community (neighbors) as much as we do our friends? When is reporting adulterous behavior appropriate? When might reporting cause more harm than good? Does it matter if it was a one- night affair or continuous? Even if it causes more harm to report, is this utilitarian perspective correct? All we get is: mumble and change the subject.

Of course, I run a fools errand in addressing the inadequacies of "The Ethicist" column. The NYTimes, will run column as long as people will see the advertisements running next to it. Opinion page editors believe it is there job to stir up debate rather than present good arguments. Honest reasonable, balanced views are simply not entertaining on the op-ed page; and thoughtful essays on troubling ethical quandaries are not popular Sunday morning reading.

Pretentiously-named advice columnist!

So, damn Mr. Cohen. I shall not read the column again.

Don't like the Constitution? Strip the courts of jurisdiction.

2005-11-12T13:49:00.000-08:00

The Senate has voted to strip federal courts of their jurisdiction to hear habeas petitions from prisoners in Guantanamo. Stripping jurisdiction is one way the Congress and the President can violate the Constitution. A prisoner may have a valid claim that they are being held illegally, but unless a court has jurisdiction to hear the claim the Constitution is just a nice idea.

The sponsor, Lindsey Graham, is also dishonest: "It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint." Mr. Graham said. What he meant to say was, "Its not fair ... for the government to be sued in any court in the land by possibly innocent prisoners based on any possible complaint."*

*Note: under this law, prisoners could bring an action if the Department of Defense violates its own rules or procedure. Also, there are unanswered questions regarding whether the prisoners might still have a Constitutional rather than statutory right to file a habeas petition. I think this is unlikely, given the folks now being appointed.

NYTimes
See,
Balkinization
Obsidian Wings
pdf text of the Bill
Graham's speech:

habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States.

from Law.com,http://www.law.com/jsp/article.jsp?id=1129712711507

There were 18,432 noncapital habeas corpus petitions filed by state prisoners in U.S. district courts.

Petitions from Guantanamo are less than 1% of all district court petitions.

Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.

If frivolous petitions are filed, the district court rules in the government's favor. That is how the legal system operates. Instead, Graham wants no one to be able to file a habeas corpus petition for any reason (save a narrow exception), because he things some of the claims are not meritorious.

It is impossible to interrogate people with this much court intervention.

That could be rewritten, "it is impossible to abuse people during interrogation with this much court intervention."

Behe Cross Examination

2005-11-11T20:33:00.000-08:00

I have read some of the Dover "ID v. Evolution" Trial Transcripts, including the direct and cross-examination of M. Behe, an ID proponent.

In the cross-examination the plaintiff's lawyer is trying to pin Behe down to show that his ID hypothesis has been discredited by scientific studies, but Behe is a good snake-oil salesman. He slides away from giving straightforward answers.

I think this exchange reveals the ID approach to science:

07 Q. And I'm correct when I asked you, you would
08 need to see a step-by-step description of how
09 the immune system, vertebrate immune system
10 developed?
11 A. Not only would I need a step-by-step,
12 mutation by mutation analysis, I would also
13 want to see relevant information such as what
14 is the population size of the organism in which
15 these mutations are occurring, what is the
16 selective value for the mutation, are there any
17 detrimental effects of the mutation, and many
18 other such questions.
19 Q. And you haven't undertaken to try and
20 figure out those?
21 A. I am not confident that the immune system
22 arose through Darwinian processes, and so I do
23 not think that such a study would be fruitful.
24 Q. It would be a waste of time?
25 A. It would not be fruitful.

Can't show how every molecule moved in creating the immune system? No proof!
Don't know how something happened? Well, don't bother: it can't be discovered!

I think there was a good opportunity to trap Behe that was not pursued:

Behe claims that his hypothesis -- that irreducibly complex systems cannot be formed by random mutation and natural selection -- can be falsified. He said that if scientists placed selective pressures on a single-celled organism and that organism developed a new irreducibly complex system (such as a flagellum, an "outboard motor" for a cell), his theory could be rejected.

Falsifiability is important because if Behe's hypothesis is not falsifiable, then it is not a scientific theory (as he claims it is).

Behe is wrong that his hypothesis is falsifiable. Earlier in testimony he said that he could not explain who the intelligent designer was, how the intelligent designer acted, when the intelligent designer acted, or why the intelligent designer acted. He couldn't say whether the design happened at once, e.g. creating man out of clay, or gradually over many generations.

Lets imagine a (real) scientist did Behe's experiment and a new irreducibly complex biological system evolved. What could Behe's response be? The intelligent designer designed during the experiment. Since we know the designer acts in the world, and the laboratory is part of the world, the designer could have acted during the experiment. Because Behe does not propose the designer acts suddenly, a gradual evolution would not disprove Behe's hypothesis. Imagine the designer worked by influencing which mutations occurred by ever so slightly bending bending the course of radioactive particles. That process could never be detected. The experiment could just as easily be proof of the existence of God as it would be proof of the validity of evolution.

My Questions:
1.You agree that a scientific hypothesis must be falsifiable? (yes)
2.You agree that the design process could occur gradually? (yes)
3.You agree that your design hypothesis could be falsified by an experiment where a single-celled creature develops a new irreducibly complex biological system? Such as the formation of a flagellum where previously none existed? (yes, blah blah blah)
4.You agree that you do not know by what process intelligent designer would create a "purposeful arrangement of parts"? (yes, blah blah blah)
5.You even agree that "intelligent design does not rule out natural processes." (Tr. Day 12, PM pg. 32, ln. 5-6)?
6.You agree that an scientists lab is part of the natural world? (what do you mean? Blah blah blah, yes)
7.And, you agree that an intelligent designer could operate in a scientists lab? (yes, blah blah blah)
8.There is nothing in your hypothesis of intelligent design that says that the designer could not cause a process in a scientists lab to create a new design? (no, blah blah blah)
9.If a flagellum developed in a lab, isn't that development consistent with your idea of an intelligent designer creating that flagellum in the lab, rather than mutation and natural selection alone? (uh...)
10.How could the scientist who studied the evolution of the new flagellum prove that an intelligent designer did not interfere with the experiment? (uh...)

Alternatively,
11.You agree that the development of an irreducibly complex biological system is evidence of intelligent design?
12.If an irreducibly complex biological system developed in a lab, would that be evidence that an intelligent force acted in the lab?

Trapped!

Of course, I'm sure the plaintiff's lawyer had written out what he considered perfect traps as well.

The Watchmaker

2005-11-11T18:57:00.000-08:00

Creationists, Intelligent Design advocates, and theistic philosophers (one and the same?) argue the world is so complex it must have been designed. This is called the teleological argument. Analogy, as with most poor arguments, plays a big part in justifying this position.

Behe, an ID proponent testifying in the Dover trial, often talks about how a person coming across a watch, or seeing Mount Rushmore, can clearly tell someone designed each. And therefore, humans should be able to use the same reasoning we use to conclude that humans made the watch or Mt. Rushmore to detect design in nature: if nature, or a piece of nature, is designed it should have identifiable characteristics.

People usually argue against this analogy by pointing out that humans have a great deal of experience with what humans design and what humans' purposes are. We have seen people make human figures, and we have seen people make things that work mechanically. Thus identifying Rushmore and watches as designed is based on our past experience with human designed things. A person looking for God-design would have no examples of prior God-design to make a comparison.

Second, life forms can be acted upon by random mutation and natural selection. Watchs and rocky moutains cannot. Therefore, the appearance of design in a system that allows for random mutation and selection cannot be compared to an item that could not be formed in such a manner.

Thrid, we can identify human design because it is different than what would otherwise naturally form. If nature itself is designed, then you cannot evaluate if anything is designed.

I would add another argument that I have not seen previously:

The watch and Mt. Rushmore are the products of natural forces. Humans are not supernatural beings. Ants are not supernatural beings. Just as ants can create small anthills, humans modify our environment. If humans and ants exist as the result of the natural process of evolution -- as a function of the laws of physics -- then everything we create is also the result of the natural process of evolution and physical laws. The watch, and the anthill, were created by natural forces. Neurons fired, cells that form muscle tissue tightened, pieces of metal were placed, grains of sand were moved -- all in accordance with the natural laws of physics. Thus, the natural process of evolution did create the watch and Mt. Rushmore; evolution created things that are "designed" and also were created by natural forces.

If the watch, Mt. Rushmore, and an ant hill are considered naturally occurring phenomenon (proximately created by humans). Noticing something that appears very similar to what a human or ant might design is, therefore, no evidence at all for supernatural design, but fits into a pattern of natural design.

One might say I am begging the question. I first assume humans, and other lifeforms, are the result of non-supernatural events, and that this is the issue in dispute. However, I am not begging the question because I am addressing whether the “watchmaker” analogy is useful. It is not: under the theory of natural evolution, a comparison between human designed objects and other objects in nature is irrelevant. Watches, ant hills, along with irreducibly complex biological formations are entirely consistent with no supernatural “designer” existing.

In a sense I am arguing there is really no such thing as “intelligence” (or, possibly a soul or free-will), but instead intelligence is a natural process no different that how a Volcano decides to erupt.

NO!

2005-11-09T19:57:00.000-08:00

All the propositions lost. Excellent.
We received a minimum of 8 calls in the last 4 days from nurses, firefighters and such urging me to vote no on the Arnold backed measures. This might be a consequence of my census track being devoid of Republicans. Or did they call everyone?

Now that we defeated these propositions, sign me up for the MaxSpeak pro-growth progressive agenda. ...err... except for that free trade in lawyers part, eh.

Little burdens make undue burdens.

2005-11-08T15:16:00.000-08:00

Alas, a blog points to a Frontline program on Abortion in Mississippi, where there is only one abortion clinic left.

A net of laws seeking to restrict abortion combine to severly restrict access to aborition for many women.

If the court was not filling up with more conservatives, I would think it is time to reconsider the conclusions of the Supreme Court in McRae and Webster holding that the Government does not have an obligation to fund abortions when it provides other medical care, and that the State may prohibit the use of State employees, land, or facilities for abortion services.

Both of those cases were based on the presumption that "a pregnant woman [would have] the same choices as if the State had chosen" not to provide any healthcare, or had chosen "not to operate any public hospitals at all." However, this has proven to not be the case. States are heavily involved in the market for low-income health services. Combined with regulations on clinics, State refusals of service do place women in a significantly worse position.

Restrictive statutes should not be challenged individually, where each alone is not an "undue burden." Notice alone may not be an undue burden, a waiting period alone may not be an undue burden, requiring the use of a hospital in some situations may not be an undue burden, disallowing public employees to give abortions alone may not be an undue burden, allowing any employee to decide not to provide abortion services alone might not be an undue burden, et cetera. But together, they clearly are an undue burden. That is the goal of the sponsors of these statutes. Clearly the health of a woman, nor concern for raising a healthy family is not their concern. The statutes have a unified purpose, and they should be analyzed in relation to each other.

Unfortunately, this Court is just as likely to say no burden is undue.

Why? Because I say so! Two.

2005-11-07T23:01:00.000-08:00

Voter Information Guide has the text.

73 - no. see post below.

74 - This is Arnold's "Fuck you." to the teachers. It would extend the probation period for teachers from 2 to 5 years. Perhaps there should be school reform, including making it easier to fire teachers that are not competent. I certainly had many teachers that I thought were not competent, and I went to what was considered a good school. But, the incompetents were unanimously teachers who had been educators for decades. Serious school reform would comprehensively address many problems. This proposition alone would do little, if anything, to make schools better. A defeat on this proposition would send a message that 1. If Arnold really cares about education reform, he needs to negotiate with Democrats, and teachers. 2. Arnold cannot attack his political opponents through the referendum system. 3. Californians do not think teachers in their third year of teaching are the problem with out schools.

75 - This is Arnold's "Fuck you." to teachers, nurses, firefighters, and unions. It requires unions to get written permission to use union dues in polical activities each year. This proposition, like 74, is a thinly vieled attack on Arnold's political opposition. I might think this proposition was legitimate if it required unions to get permission to use dues for politics once, but this requires forms each year. The only purpose for the yearly requirement is to be a pain in the ass, not protect union members. Governator: the pro-red-tape politician.
Republicans like to call unions special interests, certainly more vilified than the corporations they sucle from. How about requiring every shareholder to a company to approve each year using that shareholders share of profits for political lobbying activity? That might be fair.

76 - This is Arnold's "Fuck you." to the schools, and to the legislature. Arnold barrowed money from the education budget during the economic recession. Now, instead of paying it back, he wants to break his campaign promise that he would not cut education funding. Instead he would rather keep his campaign promise not to increase taxes. Gullible Californians thought he could keep both. Or maybe they knew he would cut education, but just didn't want to have to admit it. This prop would reduce the amount of the budget required to be spent on education... forever.
This proposition is a fuck you to the legislature, because it would authorize the Govenor to make cuts in programs whenever there is a budget "crisis." The major problem with this is that it takes 2/3rds of the legistature to pass a budget. The legislature is made up of more than 1/3 Republicans. Thus, Republicans can simply refuse to make a budget deal, then... crisis. And who gets to decide then? A Republican. Compromise between the parties might be hard, but it must be done.

77 - No, but close. This is another big "Fuck you." to the legislature. The proposition would give a panel of retired Judges the power to draw district lines. In principal this is a good idea. Currently, a deal struck between Democrats and Republicans in the legislature has made most districts "safe" for Democrats or Republicans. Few districts have a truely competitive race between the parties. Redistricting reform advocates argue that reform will create more competitive districts, which in turn will create a more moderate legislature, which will be better able to compromise.

The problem with redistricting reform is that it might create a more fair system in California, but it will not have any effect in Texas of Pennsylvania. Each of those States recently instituted highly partisan redistricting efforts that have sent many more Republicans to the House of Representatives than should be expected given the percentage of votes that Republicans received in those States. Making California "fair" will not make the nation "fair." In fact, it will make the nation as a whole less fair.

A second issue one might consider about redistricting, is that the current set-up might have some downsides, but – in California at least – it is not necessarily unfair or undemocratic. California politicians set up the districts to benefit incumbents more than one party or the other. This means that Democrats are put in districts with Democrats and Republicans are put in districts with Republicans. In turn this means Democrats are more likely to be represented by a Democrat and vice versa. If people are better represented, isn't that the goal of democracy?

People seemed offended by the oddly shaped district, but I do not find odd shapes disturbing. As a low-land city dweller, I am much more like other low-land city dwellers than I am people who live in the hills, or people who live out in the suburbs, and no need to mention those who live out on the ranch. Shouldn't districts contain people with similar interests, rather than similar geographic coordinates? At a minimum, it is not an offensive idea.

See below (#4) for my reform.

A vote for 77 is a vote for Tom Delay, emmer effer. I would rather not give Arnold any victory. He has succeded by making himself appear succesful. Droping all four of his props will make him out to be the failure that he should be.

And get John McCain off my Television. He can go back to taking it from G.W.Bush in Washington.

Other arugmets from Kash, PGL.

78 – No. The drug company's version of a drug benefit. They can volunteer to participate. Need anything be said other than: PharMA's for it.

79 – Yes. A drug benefit for moderate and low income Californians. This does not mean the State will pay for prescription Drugs, just that California will use its large buying power to negotiate lower prices. Need anything be said other than: PharMA's against it.

80 – No. Although I don't like the current energy regulation, extremely complicated issues like this should not decided through a referendum because compromise is impossible, people have a hard time understanding the issues, and changing the law is extremely different.

*********All No, except 79, yes.

Why Vote? Because I say so!

2005-11-07T22:06:00.000-08:00

No child finds "because I say so" a very good reason. Why not say, "I will explain why later. Please remind me then." If its a small matter, they will forget; if not, you can explain when you are not under stress. I guess I am not in a position to criticize.

But with the voting, the Freakonomics authors point out that if you are purely selfish, it is not rational to vote. The chance you will cast the deciding vote are probably lower than the chance you will be stabbed on the way to the polling station.

My responses to this theme:

1. People should not be narrowly self-interested. Like recycling, your action may not change anything, but all together people can have an effect. One could argue that every glass recycled has an effect, even if it is tiny, but your vote will very likely not have any effect. However, a small effect and a chance of having a huge effect have a similar value.

2. Vote not just for yourself, but for everyone that will be voting the way you will be voting. It is unfair to have them go to the polls on your behalf, and then have you not bother. It is simply rude not reciprocate.

3. This argument might be fallacious, but I like it: Think about polls. Pollsters ask 700 Americans about an issue and get a result within 3% of the correct answer. What each person answers is representative of about 700,000 voters. So imagine you just called on the phone. The question: will you vote? What you say is representative of hundreds of thousands of people just like you. If you go to the polls, whatever social forces has brought you there are acting on the rest of the population. It would be dishonest for me to argue that your decision will change the decision of other people, but in a way, if you vote for it, they will vote for it. So vote! That is, if you agree with me.

4. I would change how we vote for representatives. My solution: have two people elected from each district, and when the representatives vote in the legislative body, their vote will be weighted by the number of votes they received. So, lets say candidate Miers gets 40% of the vote and candidate Alito gets 50% (10% other)*. When they vote on a proposed statute, Miers will get 4/9th of a vote, Alito gets 5/9th of a vote. There would be no more problems with gerrymandered districts, because it would not help either party to concentrate the votes of the other. There would always be an incentive to vote. Even if the outcome of who would win the most votes was clear, each vote cast would increase the power of your preferred candidate. And every citizen could feel represented in the legislature.

*This could also be combined with a transferable vote; every vote would count.

The new moderate: Justice Kennedy

2005-11-05T13:57:00.000-08:00

Balkinization reminds everyone that what the Supreme Court outcomes are decided by majority vote; the new Court with Alito will move to the right, not to the views of Alito, but to the new swing Justice: Kennedy (although many issues don't break down on a clean conservative to liberal line).
The 5-4 cases with O'Conner in the majority and voting will the more liberal members will now be in question. The holdings are not necessarily going to be overruled, but they are unlikely to be expanded, and slowly undermined.
Kennedy,

supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion),
supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence),
thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter),
thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and
has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms).

This is not to say it doesn't matter how conservative Alito will be. Scalia himself sometimes joins with the more liberal justices to form a majority. Also, if Stevens dies within the next two years, Kennedy will move from swing onto the liberal side and Roberts, Alito, or Scalia might be the "moderate" "swing" vote. I repeat: I disdain O'Conner being called moderate simply because she was the middle vote and I predict the same will happen with Kennedy. Having one of these federalist bastards be the middle vote... ugh. Stay in there Stevens!

Here is an interview with Kennedy, he doesn't say too much.

if there's a decision people don't like, of course, we're pressured about it. I think it's unfortunate that sometimes people ascribe improper motives to judges. They don't understand the tradition. A lot of editorial writers just read the dissent, they don't read the majority opinion. The press does a fair job of reporting what we do, not a particularly good job of reporting why we do it.

He could have been talking about the recent Kelo decision here. O'Conner's dissenting view of the majority holding was more widely reported than the true opinion of the Court. The dissent's view of the majority opinion is not what is controlling. Oddly, a strong dissent can make the author look inconsistent later. Scalia dissented from Lawrence (Texas sodomy case) saying there is no way to reconcile laws against polygamy or same sex marriage and the majority opinion. However, if such as case came before the Court, he would not hesitate to claim it is obvious that Lawrence is not controlling.
Stare Decisis,

the dynamic of being bound by precedent, the so called stare decisis, is very forward-looking, because it teaches you that you will be bound by what you do. . . . You must ask yourself, to the extent that you can without being imprecise, "How will my judgment play out in the future?" And there's a lot of looking out the window in that job.

The Court has a policy derived from the Constitution that they will not give advisory opinions. That means the Congress can not simply ask the court whether a law they want to pass will be held unconstitutional. The Court also uses this principal to not decide cases where a party does not have "Standing." The parties to the dispute must have a personal interest in the outcome. The idea is that the Court is only deciding the case before it, under the particular facts of that case. This is complete horseshit, as Kennedy makes clear. The Court take only 80-100 cases each year. They take these cases not because they care about the outcome of that particular case, or the litigants involved, they are deciding hundreds or thousands of cases at once. They are not considers just what should be done in the case, but considering future policy. Thus, I call bullshit. More bullshit:

A case is presented to us, and it's our duty and obligation to decide it, whether we want to or not.

Uh, they choose the cases they take. And, they will sometimes use Standing issues to avoid topics they would rather avoid. Remember Newdow and The Pledge of Allegiance ? Kicked out on Standing.

Osama votes Republican.

2005-11-05T10:47:00.000-08:00

NYTimes:

A high Qaeda official in American custody was identified as a likely fabricator months before the Bush administration began to use his statements as the foundation for its claims that Iraq trained Al Qaeda members to use biological and chemical weapons...

...the February 2002 report said. "Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest."

This week we have heard about torture being used in secret prisons. It has been known that coercive interrogation gets answers that the questioner wants to hear, not necessarily the truth. Numerous overturned convictions, based on police interrogation confessions, are proof of that. And now we have proof that coercive interrogation in the Global War on Terror gives bad information (bad, of course, in not being the truth; perhaps good for the purposes of the Bush administration).

The other option is that top Al Queda officials were not simply giving the questioners what they wanted to hear, but instead the information was part of an Al Queda plan to encourage the U.S. to attack Iraq.

It has already been show that Bush and Co. have been the tool of Chalibi and Iran, now they are the tool of Osama himself.

The Iraq War II has been a victory for the "evil-doers" of Iran and Al Queda: they have gotten the United States to use hundreds of billions of dollars to remove a secular dictator and pave the way for civil war and theocracy. All the while, Al Queda recruiting is up and U.S. army recruiting is down. They are willing to blow themselves up for free, we depend on high school graduates whose few skills include playing the U.S. Army on-line game.

Al Queda didn't just hijack some airliners, they got the whole Department of Defense working for them.

Shifting Arguments

2005-11-04T11:21:00.000-08:00

Alas, a blog notes that anti-Same Sex Marriage forces have changed their view of the purpose of marriage from a life-long, loving bond between two people to focusing on marriage as a baby-factory.

In large part, the shift in the argument has come about because of recent Supreme Court decisions. In Lawrence v. Texas, the Court struck down a statute outlawing sodomy. The court said moral disapproval alone is not enough to justify a law. Earlier in Romer the Court stuck down Colorado's Amendment 2, which would have repealed all laws that protected citizens from discrimination based on sexual preference. The Court said the law was so sweeping that it was clearly "born of animosity" toward homosexuals.

These cases rule out the must of the real reasons behind keeping marriage exclusive: homosexuality is immoral; treating homosexuals equally will remove a government-enforced stigma against same sex couples. The desire to keep marriage exclusive has its roots in religious faith and taboo, but the Court will not uphold a law based solely on religion or irrational hatred. Thus, secular reasons need to be promoted to the forefront of the debate.

And looking for reasons to exclude same sex couples from marriage, not based on, "It's always been this way," "God said so!" or disapproval of homosexuality itself, are difficult to find.

Creation Museam

2005-11-03T18:40:00.000-08:00

Yes a museam to show that humans and dinosaurs lived together in harmony in the Garden of Eden: The Creation Museum. I feel sorry for the children.

The problem:

‘I’ve been trying to witness to my friends. They say they don’t believe the Bible and aren’t interested in the stuff in it. They want real proof that there’s a God who created, and then they’ll listen to my claims about Christianity. What proof can I give them without mentioning the Bible so they’ll start to listen to me?’

The solution:

Christians . . . have a ‘time machine’. They have a book called the Bible which claims to be the Word of God who has always been there, and has revealed to us the major events of the past about which we need to know.

On the basis of these events (Creation, Fall, Flood, Babel, etc.), we have a set of presuppositions to build a way of thinking which enables us to interpret the evidence of the present.

So, assuming the Bible is the literal truth, the Bible is the literal truth! And the evidence shows the Bible is the literal truth! Assuming, of course, the Bible is the literal truth.

Prop 73

2005-11-03T11:21:00.000-08:00

LA Times reports Prop 73, requiring parental notice of abortion, is likely to pass. "Nearly six in 10 men back Proposition 73, but women are split almost evenly." A lack of empathy, perhaps?

I tend to have a poor memory of my days as a "unemancipated minor," but I do recall that my maturity and intelligence was significantly underestimated in comparison to those age 18 and above. Unfortunately, as I get older, the cranky old man inside me exclaiming, "Damn kids these days!" has greater influence.

Perhaps a 17 year old needs guidance and help when facing an unwanted pregnancy, but so would a 18 year old or a 25 year old. I hope everyone facing what they might consider a difficult decision has thoughtful and caring people available to consult. I hope families have such good relationships that a teenager would feel comfortable talking with their parents. However, a teenager's parents are not always the best option. The fact a teenager has to deal with their parents may be the most stressful part of obtaining an abortion. Forcing a teen -- threatened with violence or coercion to keep the fetus -- to go through the court system to by-pass this requirement is simply cruel.

This law constitutes deterrence through bureaucracy. Where are the Republicans who are against red-tape? Protecting the environment? needless red-tape. Restrictions on medical care for women? Finally, a use for the courts.

The law (like most propositions) will become part of the State Constitution. This makes it difficult to change. And the proposition includes language that calls a developing embryo or fetus an "unborn child." This is one step to chip away at State and Federal Constitutional protection of women to have control over their bodies. I can imaging a future Chief Justice Roberts opinion citing the fact that "x number of States define abortion as 'causing the death of an unborn child.' See, Sec. 32(a)(1), Prop 73." in a holding overturning Roe and Casey.

Alito and Strip Searching

2005-11-02T16:03:00.000-08:00

Some attention has been made of Alito's dissent inDoe v. Groody . Prompting accusations that Alito has no problems with warrantless strip-searches of 11 year old girls.

The case provides a good example of how difficult it can be to sue a State, or State officials, for violating your Constitutional rights.

To start off, the Supreme Court has held (and the less than "textualist" conservatives have upheld) that the Eleventh Amendment means individuals cannot sue a State (unless the State consents, or Congress has explicity "abrogated" a State's immunity under its limited power to enforce the 14th Amendment). You can only sue the state for prospective injunctive relief: you can get a court to order the State, "Don't do it again." Thanks.

However, under Federal law, usually Section 1983, individuals can sue State officers who violate the Constitution and harm you. While you cannot sue the State, you can sue State employees, under the dubious theory that since States cannot legally enforce a State law that is unconstitutional, an individual State employee who violates the Constitution is not acting pursuant to State law. Dumb rule, but at least you can get into court if cops strip search you for no good reason.

But, State employees are often immune from suit. The immunity can either be "absolute" or "qualified." The President and Judges have absolute immunity for their official acts.

Police have qualified immunity from their unconstitutional acts. "The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted. . . . If the law [Supreme Court decisions] did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz. Thus, police, or other State officers, may violate your rights under the Constitution so long as they reasonably believe their behavior was Constitutional (under Supreme Court -- not district court -- precedent) at the time.

Turning to the strip-search case. The Fourth Amendment protects against unreasonable searches and seizers. Police officers are immune from Fourth Amendment violations when they rely on a search warrant that has been approved by a magistrate, even if the warrant was not supported by "probable cause." As Alito quotes Malley v. Briggs, "Only where the warrant . . . application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . will the shield of immunity be lost." In Groody, the officers seeking a search warrant of a house of a suspected drug dealer requested in the affidavit to search people within the house, but the text of the warrant issued did not include searching people within the house. The Officers searched the suspects family: they are not coved by the warrant, but would be covered by the affidavit.

The majority held that Supreme Court precedent is clearly established that the warrant text governs what is allowed under the warrant, not what is in the affidavit. Alito argued that because the warrant incorporated the affidavit with respect to probable cause, it was ambiguous whether it allowed officers to search occupants other than the suspect. It was not clear to the officers that the search was not allowed under the warrant, and thus, qualified immunity applies. It is a reasonable argument.

I don't mean to be an apologist for Alito. Justice O'Connor is too conservative for my taste*, and Alito is likely to make many decisions that will be harmful to working Americans, limit our rights under the Constitution, and expand the rights of business interests. However, making this case is much more difficult than saying "Alito supports strip-searching little girls." Had the officers been more careful in writing the warrant, the case would probably have no chance of success, even with liberal judges.

I would like to see the Court fix the original mistake: the misguided interpretation of the Eleventh Amendment that gives State immunity from violations of federal statutory and Constitutional law. If States could be sued directly for violating the Constitution, we wouldn't have to worry about constitutional violations going unpunished/uncompensated, nor worry about liability for officers who are reasonably doing what they believe is their job.

The non-literal Eleventh Amendment interpretation has also has helped to create a rule hated by conservatives: the exclusionary rule. Without another effective means of encouraging police to abide by the Constitution, the Court has held that violations of the Constitution result in probative evidence being excluded from trial. We have a system that rewards criminals whose rights are violated and denies the innocent compensation. If stiff financial penalties were assessed for every Conditional violation, an exclusionary rule might no longer be necessary. Or the rule could be narrowed to willful or reckless violations.

----
*I must note that I hate Justice O'Connor being called a moderate by every news reporter and pundit -- even the “liberal” ones do it. She is Conservative. She is the swing vote on a (7 out of 9) Republican Court. Being a swing vote does not a Justice moderate, it simply means that there are 4 more votes to the right. Appoint a few Janice Rogers Brown to the Court and Scalia could be the swing vote.

SCOTUSBlog has links on Alito

2005-11-02T16:00:00.000-08:00

My folks just gave me these two rackets. Sure they are old and harder to play with, but how can you reject the "Stroke Master" or anything recommended by Billy Jean King?

The Torture President

2005-11-02T12:36:00.000-08:00

CIA Holds Terror Suspects in Secret Prisons: "CIA interrogators in the overseas sites are permitted to use the CIA's approved 'Enhanced Interrogation Techniques,' some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as 'waterboarding,' in which a prisoner is made to believe he or she is drowning."

Disgusting. I think this is a bit worse that perjury (whether concerning national security or blow jobs).

I believe!

2005-11-01T11:43:00.000-08:00

Church of Reality

Khronos Projector

2005-10-26T10:34:00.000-07:00

here

---

2005-10-21T13:52:00.000-07:00

Torture enabler John Yoo and frienddemand that Senators require Miers to answer how she feels about Roe:

The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee's approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that?

Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution's protection of judicial independence, nor does it violate judicial ethics. Parties before the courts are entitled to judges who will consider their cases without bias. But they are not entitled to judges who have no views of the law. An open mind is one thing; an empty head is another.

We would go one step further. The most useful way of discovering a nominee's views is through "litmus tests." One question would yield the maximum information about a nominee's judicial philosophy (without requiring a commitment as to any future ruling): "What do you think of Roe vs. Wade"? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary's role in our constitutional system.

Now, where were these notable conservatives when Democrat senators' questioning of Roberts on Roe was considers unacceptable and unethical?

Oh, here is Yoo on Roberts' senate hearings:

A member of the Senate can choose to vote for or against a nominee for whatever reason he or she chooses, and can ask any question they want.
...
At the same time, nominees have a duty not to judge cases before they are argued and submitted to them for decision. We would think it wrong, for example, for a nominee to announce during confirmation hearings that he or she will always vote for or against the police in a search or seizure case. That limits their ability to answer.
...
Q: Senator Specter said that he intends to ask Roberts if he believes that there's a Constitutional right to privacy. If Roberts says no, is this cause for concern? In other words, do most judges believe that such a right is implicit in the Constitution, or would this make Roberts something of outlier?
John Yoo: That would be a fair question to put to Roberts, and it has been put to previous nominees. Given Roberts' respect for precedent, he will probably answer the question yes. I would be shocked if he said no. At worst, he would say that he would not answer the question so as not to prejudge any cases coming before the Court now about the right to privacy.
Q: ...what extent do you believe a potential Supreme Court candidate's views on contentious issues (abortion, affirmative action, etc.) should be considered as criteria? ... I wonder if, in the hearings, the Senate should consider not just what Roberts' views are, but his logic at arriving at those views. What are your thoughts on this?
John Yoo: ... I think that President's should consider judicial philosophy when they appoint Supreme Court justices. ... I think that Presidents would not do their duty if they appointed judges they thought would undermine or disregard the Constitution. In order to make sure that doesn't happen, Presidents must inquire at some level about what a potential nominee thinks of the Constitution.
The important thing, however, is to recognize that there are areas where the Constitution is ambiguous, or where reasonable people can differ. Both Presidents and Senators should realize that there are areas where they can accept someone who has a different view than their own.

Note that Yoo did not answer the question. First, he talked about the President, not the senate, as the questioner asked, and second, he does not say weather the senate should consider Roberts' view on controversial issues. And certainly did not express the views of the later L.A. Times op-ed.
Conclusion: Yoo is a torture enabling hypocrite.

Google and Fair Use

2005-10-19T14:14:00.000-07:00

Publishers Sue Google Over Scanning Plans
Google plans to scan books so that they can be searched, "A few sentences from each book would be viewable, but could not be printed or downloaded."
Federal copyright law gives the owner of a copyright -- either the creator, or the employer of a creator -- the exclusive right to copy and distribute the work. However, others may copy the work if it is a "fair use.":

. . .the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
. . .

Applying these factors to GooglePrint... the case could go either way.

Nature of the use- Google is working with libraries. The goal of the libraries is to provide a public service: having one quick and convenient way to find most written material. Google could claim it has the same goal, but Google also has a commercial use: selling advertisements connected with the search results. Google is not selling the copyrighted works, but it is indirectly profiting from them.
The end use of the copyrighted work – by those who search for quotes – is likely to fall under fair use of criticism, comment, et cetera. Google could argue that making other people's fair use of material easy to do (without enabling non-fair use copying of whole books) is a fair use purpose itself. I would be sympathetic to this argument.

Nature of the copyrighted work- Since there are so many books to be scanned, it is hard to weigh this factor.

Amount used- Here, Google is both coping the entire work and only small pieces. Google scans and saves the entire work, it uses the entire work in its service, because the entire work can be searched. However, only small portions would be available to the public. Personally, I would see the use as being only small portions, but how a court would decide this factor is unpredictable.

Effect on market value- Here, Google argues its service would be beneficial to authors and publishers, helping promote their books. However, there are two markets to consider, 1. the market for the book (which will probably not be changed much by displaying short bits on a search) and 2. the market for book searching services. The authors or publishers could claim that their is a market for being able to search books, a market they should be able to profit from. I find this argument very weak because no one author or publisher has any expectation to be able to profit from the searchability of their book. The service of a book search is only valuable when a large number of books are searchable. The benefit of the service grows the more books that are added.

After reading some court opinions that go through the factors, one could come to the conclusion that a judge first decides the case and then the factors fall into place. If I were I judge, I would find it hard not to do the same thing with GooglePrint.

I would look to the ultimate purpose of copyright law, as enshrined in the Constitution, "To promote the Progress of Science and useful Arts." The end goal is to have the greatest production and distribution of useful works. The basic idea of copyright is that by giving authors a monopoly on their work, it will encourage the creation of more works, ultimately benefiting the public.

Applying this basic principal to GooglePrint, it is clear that Google's use is fair. The public benefit to having a centralized searchable database of the most significant written works far outweighs any minuscule incentive for authors to write more because of the (possibly non-existent) added profit they will see from the searchable book market. It is unlikely that a market for a centralized searchable database of written works would be possible without a fair use exception, leaving the public, and the authors, worse off.

The authors fighting GooglePrint try to make a different case to the courts and the public. They do not see copyright as a tool for society to advance science and the arts, they see copyright as protecting a property right over the works they produce. They think because they wrote the original words, they own those words in such a way that no one else can use them without permission. Sadly, many people buy into this moral-property-rights argument. We now have a copyright length (life+70 years) that cannot be justified as good public policy or efficiency, but can only be justified by believing an author has a nearly permanent monopoly property right in the work.

Astrology in the classroom, now!

2005-10-19T12:51:00.000-07:00

Hoy, hoy, hoy.: "A leading architect of the intelligent-design movement defended his ideas in a federal courtroom on Tuesday and acknowledged that under his definition of a scientific theory, astrology would fit as neatly as intelligent design."