"Googlebucks:" How do you know the economy's still in trouble? Why, when Google tries to bill you three billion dollars for your ad, that's how. And for a second-place ranking, too! (Courtesy Need To Know.)

You may have seen the CNN "exclusive" on Kim Emigh, the WorldCom budget analyst who blew the whistle on -- surprise, surprise -- capital accounting irregularities (not the $3.8 billion in operating expenses booked as capital, but capital expenses booked as operating expenses), and was fired for the effort. However, the story was actually broken by a Fort Worth independent paper in May. And so my WorldCom schadenfreude continues....

 
The following is a first draft, like pretty much everything else I post up here. Revisions are likely.
All Fish, no bait: I've been waiting for Andrew Sullivan to respond substantively to Stanley Fish's article in last month's Harper's, but he appears to have abandoned the project for now. This is unfortunate, because Sullivan is obviously troubled by Fish's assertions, but recognizes that they cannot be denied on entirely facial grounds. Doubly unfortunate is that he has, for the time being, left the field to weaker contenders, such as Peter Berkowitz's article for Sullivan's old stomping grounds, the New Republic. Berkowitz's arguments are not only unconvincing, but they betray the fact that he doesn't, to be perfectly blunt, realize that he is boxing with shadows of his own creation.

Berkowitz certainly has the credentials needed to attack Fish and his brand of postmodernism; he has a B.A. in literature, a master's in philosophy, a doctorate in political science, and a law degree; taught for almost a decade at Harvard before moving to the George Mason law school; and has published several books defending a kind of classical liberalism of a more or less Rawlsian nature against what he sees as a philosophy of immorality that began in earnest with Nietzsche. So it's surprising -- shocking, even -- that such a qualified interlocutor stumbles so badly in his attack.

Although Berkowitz addresses both the Harper's article and a NYT editorial by Fish, it is sufficient for our purposes to conflate both parts of Berkowitz's article, since Berkowitz argues that Fish "trot[s] out his core obfuscation" in both articles.

There are substantial differences between the two articles that are worth considering -- the pedantic orthoepeia that characterizes the editorial, and a rather turgid section on affirmative action and Fish's own academic opponents in the article -- but they don't lie within the scope of the philosophical grounds Berkowitz is attempting to condemn. (For the record: I don't find those sections of Fish's articles persuasive, but neither will I deny any and all validity to his points.)

In his New York Times editorial, Fish has this to say about his peculiar form of postmodernism:

Postmodernism maintains only that there can be no independent standard for determining which of many rival interpretations of an event is the true one. The only thing postmodern thought argues against is the hope of justifying our response to the attacks in universal terms that would be persuasive to everyone, including our enemies. ...

At times like these, the nation rightly falls back on the record of aspiration and accomplishment that makes up our collective understanding of what we live for. That understanding is sufficient, and far from undermining its sufficiency, postmodern thought tells us that we have grounds enough for action and justified condemnation in the democratic ideals we embrace, without grasping for the empty rhetoric of universal absolutes to which all subscribe but which all define differently. ...

In Harper's, Fish makes essentially the same argument. He begins by critically deconstructing Edward Rothstein's description of postmodernism as "challeng[ing] assertions that truth and ethical judgment have any objective validity." Fish responds that

If you mean a standard of validity and value that is independent of any historically emergent and therefore revisable system of thought and practice, then it is true that many postmodernists would deny that any such standard is or could be available. ... Rather, the actor, you or I or anyone, begins [to draw conclusions by starting] in some context of practice, with its ... generally accepted benchmarks, and from within the perspective of that context ... judges something to be true or inaccurate, reasonable or irrational, or so on.

Berkowitz interprets Fish as saying that "[P]ostmodernism's central teaching was now perfectly consistent with the idea of universal standards ... [standing] for the sensible though innocuous proposition that not everybody will always grasp what universal standards require. ... Knowledge is one thing, persuasion another." If this was indeed what Fish was saying, then Berkowitz's charge that "Either Fish is confused about exactly what postmodernism means, or he is willing to say anything ... [o]r maybe both" would have a damning validity. But such is not the case. What he considers "rank sophistry" is a phantom interpretation. And so the shadows close in.

I speak of "Fish's peculiar brand of postmodernism" because he does not fit neatly in the path of post-1968 far-left French philosophes that normally are assumed to be the canonical postmodernists. Instead, his work is in a more traditional American Pragmatic vein, which itself has antecendents stretching back to the very beginnings of Western thought. (Fish's philosophy might better be called "postfoundationalism," a term that's not freighted with the political baggage of "postmodern.")

Consider Fish's statements in both venues: to him, postmodernism means primarily that no "independent standard ... of validity and value" exists. Berkowitz evidently takes this to refer to "persuasion," but Fish means what he says: there is no moral, ethical, or philosophical yardstick that is invariant between people (or, to use the philosophical term, between their "frames of reference").

This point is confused by Fish speaking of "the empty rhetoric of universal absolutes" in the Times, but in Harper's saying that "I am not saying that there are no universal values or no truths independent of particular perspectives." Despite the cavalier use of the word "universal," Fish is speaking of three distinct elements:

(1) "Universal absolutes" are those values that are assumed to be verifiable between frames of reference. They are those things that can supposedly be measured by way of the universal invariants, such as revealed divine wisdom (to use the traditional religious yardstick), or self-evident truths (to use the model popular amongst Kant, the Scottish Enlightenment, and the American Revolution).

(2) "Universal values" are values peculiar to a frame of reference that are universally applied by people from within that frame. When I say that "thou shalt not covet thy neighbor's wife," I do not admit exceptions for people who do not share my frame. When I proclaim that I believe the truths enshrined in the American ideal to be self-evident, I do not admit that those truths do not apply to the Stalinist tyranny.

(3) "Truths independent of particular perspectives" are empirical facts. They are the surviving aspect of James' insistence on getting the "cash value" of beliefs, or C.S. Pierce's profound faith in the scientific method. To use a hoary old example, two people touching a water pipe can disagree as to whether the pipe is "cold" or "lukewarm," but the fact of its temperature in Farenheit, Celsius, or Kelvin an be established by recourse to a thermometer.

What makes Fish so difficult to understand is not that he is "ultimately incoherent," but that what he claims runs counter to what we normally believe: that our deepest-held beliefs, those that propel our every action, have no ultimate basis in revelation or reason. It is this that infuriates liberal theorists such as Berkowitz, and rightfully so: in the end, the civic religion of the liberal state is believed to be the result of one or the other. Just as, until the monetarist challenge, we were all Keynesians, we have for the past 225 years been philosophical, if not practical, Kantians.

Fish tries, and mostly fails, to make this clear when he says that "The claim that something is universal and the acknowledgment that I couldn't necessarily prove it are logically independent of each other." "Necessarily" is a weasel word; what Fish should say, to remain academically honest, is that he can't prove the absolute nature of a universal value, because there is no way to claim such a proof.

This isn't to say that we can't make factual claims about our beliefs. Communism murdered millions of people, destroyed the entreprenurial fabric of society, and created a failed economic system based on an idiosyncratic interpretation of the faulty Hegelian world-system. The French model of state-managed capitalism returns lower overall economic performance than private-management systems. Gun-control laws in America have not been observed to have a mitigating effect on violent crime statistics. Mali recently underwent the first peaceful transfer of political power in its recent history.

These are facts. But when we invoke facts to justify our beliefs, we tacitly or explicitly provide a series of value-judgements that link facts to desired outcomes. At some point, these judgements are as basic as "killing a person for a reason unrelated to their conduct is wrong" (which in turn has its own predicates). The fact that such judgements are generally noncontroversial does not obscure the fact that they are, unless one believes in revealed wisdom or a universal moral logic, arbitrary noncontroversial judgements. Even the work of sociobiologists to unravel the biological basis of our societies doesn't render these claims any less arbitrary.

Pace Berkowitz, one does not need to need to stop at Nietzsche to find this philosophy in history. Its elements can be found in medieval nominalism, the terminism of William of Ockham (and, incidentally, in his political writings contra Papal doctrine on the state and heresy), and as far back as Xenophanes, one of the very first pre-Socratic Greek philosophers, and his insistence on an utterly ruthless empiricism based on personal experience. But postmodern thought, point by point, is in particular no more than a modern recapitulation of the thought of Protagoras, right down to the obsession with the use and meaning of language. Protagoras' homo-mensura doctrine is the ancient pattern underlying the Pagmatists' academic gowns.

Many of the more thoughtful critics of postmodernism rightfully see in the philosophy a hidden jackboot; far from the naive speculations of op-ed columnists that postmodernism prevents its adherents from condemning such atrocities as the September 11 attacks, they worry instead that it creates a climate of moral equivalence that looses all restraints, providing comfort to hedonists and tyrants alike. And in this, these modern Platos and Aristophanes are correct.

Fish's politics seem as banal as his philosophy is provocative: he's basically a left-of-center Establishment liberal, like most others in the Academy. His practical politics are sometimes insightful, often ill-considered, but they are always utterly orthodox. Likewise, Protagoras was himself a solid citizen of his polis, a staunch moralist and talented lawyer in a civilization that revered democracy and law. (Indeed, in his devotion to democratic debate in the shaping of law, one doesn't have to go far to draw a direct line between Protagoras and Habermas as well.) Plato, who was hardly averse to attacking the character of his philosophical opponents, freely acknowledged that, no matter the character of his philosophy, the character of the man was unimpeachable.

But, to return to the metaphor above, if Fish today wears academic habit that Protagoras would recognize, so too did the younger Sophists presage the fashionable clothes of the post-1968 demi-monde. Everything that Protagoras' critics feared about Sophistry came true, in individuals if not the philosophy as a whole. The amorality of the later adherents of Protagoras is notable, far outstripping the practical political wisdom of that classical moralist Machiavelli. And their descendants can be found amongst writers such as Gilles Deleuze and Felix Guattari, with their celebration of psychosis as the ultimate in psychic deterritorialization.

If there is any mendacity to Fish's arguments, it is in his attempt to reconcile his postmodern epistomology with his more-or-less conventional political and social beliefs. This is an issue never fully addressed by the Pragmatists themselves, except in lines such as James' description of Pragmatism as a process rather than a philosophy:

Against rationalism as a pretension and a method pragmatism is fully armed and militant. But, at the outset, at least, it stands for no particular results. It has no dogmas, and no doctrines save its method. ... [I]t lies in the midst of our theories, like a corridor in a hotel. Innumerable chambers open out of it. In one you may find a man writing an atheistic volume; in the next some one on his knees praying for faith and strength; in a third a chemist investigating a body's properties. In a fourth a system of idealistic metaphysics is being excogitated; in a fifth the impossibility of metaphysics is being shown. But they all own the corridor, and all must pass through it if they want a practicable way of getting into or out of their respective rooms.

No particular results then, so far, but only an attitude of orientation, is what the pragmatic method means. The attitude of looking away from first things, principles, 'categories,' supposed necessities; and of looking towards last things, fruits, consequences, fasts.

So Fish, following the earlier Pragmatists, simply decouples philosophy and politics: since we've never had an actual objective yardstick for ethics and politics, he says, the recognition that the postfoundationalist process trumps traditional philosophy doesn't change a damned thing. If I believe that American democracy is good and German National Socialism is bad, and it's important enough for me to kill and die for, then the justifications I used before -- the safety of innocents, freedom from coercion and fear, the rule of law and tolerance for others -- serve me as well now. The fact that no Nazi will agree with me now, or in the future, shouldn't bother me. The fact that I am not correct in some absolute sense doesn't change the fact that I and mine believe ourselves to be in the right, and that our right and their wrong is worthy of war.

The tenets of Fish's postfoundationalist thought are radical, in the sense of radix, "root." And because postfoundationalism tells us that these roots are, in a very profound sense, suspended in the air, it seems at first blush that Fish's thought and a kind of absolute moral particularism must go hand-in-hand. But in fact the opposite conclusion can be drawn: we are instead led inexorably to a kind of radical intolerance, because those who oppose us, whether Nazis, Islamist terrorists, or state socialists, cannot be argued, convinced, or illuminated into renouncing their root convictions. In such cases we either must find compromise in the political sphere -- or fight to establish the supremacy of our beliefs and practices.

Thus, we must walk the convictions of our enemies back to their roots, and determine what is to us an appropriate response. To al-Qaeda, whose convictions begin with the idea that the universal values of their brand of Islam should be imposed upon all peoples by all means, including fire and sword, there is absolutely no relation between our values (liberal, republican) and theirs (intolerant, theocratic), except the relation of total war. Most state socialists, by contrast, either have consonance with the root values of free marketers (in the sense of being heirs to the Enlightenment), or their root values are not so far off that political compromise is impossible. Radical intolerance in philosophy does not necessarily mean a lack of nuanced response in practice.

And yet even if postfoundationalism tells us that it changes nothing, that it has no consequence when it comes to our everyday lives and necessary wars, it does bother us. We just aren't used to the idea that our most cherished beliefs are built on clouds. And so we create -- quite rightly -- elaborate realms of discourse designed to discipline our thoughts and prevent us from simply accepting any idea without analysis: theology, law, economics, morality. In essence, we find ourselves with different conceptual toolboxes, and judge our beliefs and those of others by the measuring tape we find in each box.

These coping methods are not only necessary, they're effective, as their critical place in the history of civilization shows, and may even be an unavoidable product of the human organism. They may not be divine revelations or a categorical imperative, but in a world that either has no philosophical absolutes, or where such absolutes are denied to our imperfect selves, they're good enough.

 
Thanks for the memories ... and the debt, too. Orthodox economics has slowly absorbed many of the lessons of the Austrian School, but many economists are reluctant to credit the idea that inflation-pushed sector "malinvestment" could cause total economic meltdown. Nonetheless, the Austrians keep plugging away, and their latest salvo takes on the '90s accelerando, calling it a "vast infusio[n] of surplus, dishonest money" filled with "fervent speculation," "rampant corruption," and artificially bulked GDP numbers, whose main legacy consists of bloated companies gorged on debt that will in turn eat them from the inside out. These guys really do put the dismal in the science.

 
For a failing dot-com, Salon gets some really good interviews. Joseph Stiglitz, former chief economist for the World Bank and 2001 co-recipient of the Nobel Prize in Economics (for his work on markets under conditions of asymmetric information), talks about the World Bank, globalization, and accounting standards. "You can't have markets work without good information, and it is not necessarily the case that people have an incentive to provide accurate information; [but] they do have an incentive if there are penalties for providing fraudulent information."
Addendum: Parry, riposte.

After celebrating the Fourth with some friends by attending a barbecue and watching a rather anticlimactic civic fireworks show, we indulged our patriotic urges by watching the movie Behind Enemy Lines. (If you want a review, here it is: "No Pearl Harbor, but almost as unwatchable.") Perhaps it was the beer, perhaps the bratwurst, perhaps the banal idiocy of the script, but I really became disturbed by the depiction of the military in the movie: NATO is a bunch of bumbling martinets, the Armed Forces are willing to sell out their own people, and the Joint Chiefs willfully conceal the existence of a downed American pilot from the citizenry, leaving the task force commander to contact a British television reporter(!) to release the truth.

In fact, these are staples of virtually every Hollywood action movie: the good guys might be soldiers or spies, but the bad guys (or at least the not-helping-the-good-guys guys) are the military or intelligence agencies themselves. This is a curiously self-serving conceit (we get to keep our guns and our leftist credentials, too!) highlighted by the refusal of the movie Black Hawk Down to indulge in either whitewashing or blackguarding the military.

Not deep thoughts, but just something to consider at six o'clock on a Friday afternoon....

 
Hesham Mohamed Hadayet, a 42-year-old Egyptian man who had been living in the United States for the past ten years, was identified today as the gunman who killed two people at the El Al counter at LAX before being shot to death by security.

The Times scoops the competition with details on a military planning document for the invasion of Iraq. The conceptual operation plans-- which don't indicate an attack is actually in the works -- game out a scenario in which "tens of thousands of marines and soldiers ... invad[e] from Kuwait. Hundreds of warplanes based in as many as eight countries, possibly including Turkey and Qatar, would unleash a huge air assault against thousands of targets."

Top military brass have been notably reluctant to sign on to Administration talk about toppling Saddam, privately cautioning that such an effort would require the sort of massive invasion force envisioned in the contingency document, not the much smaller effort expended in the war in Afghanistan. This plan sounds like the latest salvo in a war to convince the White House that Saddam's fall won't come easily, and won't come without cost. Especially troubling are such issues as the lack of a competent and unified Iraqi opposition, and diplomatic problems convincing other Gulf nations to support an attack on Saddam.

The NYT source, by contrast, sounds like a midlevel White House political flack, especially when he complains "that the planning reflected at least in this set of briefing slides was insufficiently creative, and failed to incorporate fully the advances in tactics and technology that the military has made since the Persian Gulf war in 1991." Since he didn't have access to the complete set of planning documents, the source can only speculate as to the existence of other CONPLANS that address such critical issues as getting local states to provide basing support, and helping create a government post-Saddam. On the other hand, it's just as likely that the military hasn't written such plans, instead punting striped-pants issues to Foggy Bottom and other parts of the civilian bureaucracy.

The Russians can't forget their history, but it doesn't matter: they're condemned to repeat it anyway. The LA Weekly reviews Martin Amis' Koba the Dread, which traces the history of the Stalinist nightmare and its defenders in the West. It's been done before, and done well, but this sounds like a worthy addition to the canon.

From the Department of Things We Already Knew: "People who profess stronger spiritual beliefs seem to resolve their grief more rapidly and completely after the death of a person close to them than do people with no spiritual beliefs." Thanks for the startling news.

 
Details are, of course, still sketchy in the LAX incident earlier today. Officials have described the suspect as a 52-year-old man, and sources have identified him as being of Arab origin. The Israelis have publicly called this an act of terror, but have not provided any intelligence to back this claim up as of yet.

Reading material: Not as topical when I first came across them in the days after September 11, but I was cleaning tonight and came across my copies of The Bear Trap and Silent Soldier: The Man Behind the Afghan Jehad, both freely available at Afghan Books. Both are detailed histories of the Afghan mujahideen's war against the Soviets, from the perspective of a Pakistani military officer detailed to work with (or "exiled to") the ISI intelligence agency. Even though the war seems to be moving from Afghanistan proper into the Pakistani Northwest Frontier Province, these are critical sources for finding out how we got to where we are.

 
Since it's a uniquely American day, I thought I'd post some uniquely American music: Big Twang, a Kansas bluegrass group fronted by former Dixie Chick founder Robin Lynn Macy (now excised from the official biographies, but those of us from Dallas still remember her fondly: more on Sony's Kremlinesque rewriting of history here).

Yes, I know there was a shooting at the El Al counter at LAX. Yes, I know the event bears a striking resemblance to the 1985 terrorist attack at the El Al counter in Rome. But it's a holiday, it's an ongoing investigation, anything I say would be sheerest speculation ....

Oh, you want more?

Okay, here goes. The Rome attack was carried out by the PFLP splinter group the 15 May Faction, whose leader, Abu Ibrahim, is still provided safe haven in Iraq. Ibrahim is intimately involved with Directorate 14 of the Mukhabarat, headquartered at the notorious terror-training camp and WMD research facility at Salmon Pak, and responsible for external assassinations, terror attacks, sabotage and other clandestine operations, except for attacks on Iran (handled by a separate group). The attempted assassination of former President Bush, for example, was a Directorate 14 job.

Of course, no further information has been released, so we don't know who the person or persons involved are, their affiliations, and so on. We'll see where this story take us.

 
I pledge allegiance to a scrap of cloth that represents imperialistic greed. The Girl on the Right gives notice of a letter from University of Texas associate professor Dana Cloud, (who "specializes in the analysis of contemporary and popular and political culture from feminist, Marxist, and critical anti-racist perspectives") to the school newspaper. (The archive is here.) Now, all four letters from July 1 are pretty far to the left of the bell curve, but it's one thing for an undergraduate, or even a master's candidate, to send in a poorly-argued polemic; it's another for a professor to come up with one.

For your, um, edification, the text of Professor Cloud's letter is reprinted in its entirety:

Pledge for the workers

My daughter, who is 11, and I were delighted at the California court decision omitting the words "under God" from the Pledge of Allegiance. She and I have always been uncomfortable saying the pledge, not only because of the religious imposition, but because it seems very strange to pledge loyalty to a scrap of cloth representing a corrupt nation that imposes its will, both economic and military, around the world by force. So she inspired me to rewrite the Pledge.

Imagine schoolchildren every day reciting the following:


I pledge allegiance to all the ordinary people around the world,
to the laid off Enron workers and the WorldCom workers
the maquiladora workers
and the sweatshop workers from New York to Indonesia,
who labor not under God but under the heel of multinational corporations; I pledge allegiance
to the people of Iraq,
Palestine and Afghanistan,
and to their struggles to survive and resist
slavery to corporate greed,
brutal wars against their families,
and the economic and environmental ruin wrought by global capitalism; I pledge allegiance
to building a better world
where human needs are met
and with real liberty, equality and justice for all.


The original pledge does not include or represent us godless radicals. The backlash against the California decision shows just how thin our democracy is.

Well. Um. Yeah. Not too much left to say, is there?

 
Today is Independence Day, and what better way to celebrate than arresting Saddam Hussein's stepson? Well, okay, so he's actually a New Zealand citizen who works as an aviation engineer, and he's probably in more danger from Hussein and his thugs than the INS ... but it's still an odd story to appear on this July 4th. Incidentally, Saffi wasn't actually known to be related (if that's the proper term) to Saddam until late last year, when New Zealand newspapers broke the story.

Addendum: I've been told that Saffi is a flight engineer, AKA the "second officer" of the flight crew.

Ah, the New York Post, that flagship of responsible journalism. According to the paper, "All the characters in the ImClone insider-trading mess have one trait in common: They're all liberals. Indeed, Clintonian liberals." Of course, all the characters in the Enron scandal are Gilderesque libertarians, the characters in WorldCom are populist Southern conservatives, and Xerox are bureaucratic flunkies. It's ridiculous for Gore and other Democrats to use corporate accounting scandals as a partisan ploy, but this ... this is just screwed up.

Same Old World Order: The Euros, and many American lefties, are up in arms about the Bush administration stymieing the United Nations criminal court, at least as much as you can stymie an international entity that unilaterally claims jurisdiction over your population. The US is trying to get a resolution passed that would provide UN peacekeepers with procedural protection from automatic prosecution (not an immunity deal, as widely reported -- a detailed explanation of the proposal is here), but other member states and the UN bureaucracy aren't budging.

Opponents of the American plan treat the UN Criminal Court as a primarily legal institution, but this misses the point: it's a political creature, like anything else in international law, and thus the sorts of legal arguments that might apply in an American courtroom are simply incoherent when it comes to the UN. The idea that a prosecutor in the Hague, without the sort of very real safeguards that prevent prosecutorial misconduct in America or other "rule of law" states, could yank soldiers (and let's face facts, we're really talking about American soldiers here) into court over actions carried out at the United Nations' own request is politically absurd, especially because America has its own perfectly effective civilian and military court systems for handling prosecutions.

What the lefties are ignoring is that there is a qualitative difference between America and, say, civil-war Rwanda or Serbia under Milosevic, and that to treat us the same as them within the law of war crimes is to lay a kind of spurious equivalence between states, as if they were citizens of the same nation. The UNCC wants to trump national jurisdiction, giving no deference to the difference between a dictatorship and a democracy, between a kangaroo court and a Constitutional trial. And that's not just bad policy, it's bad precedent.

A CA cop goes after the Ninth Circuit in his latest column for the National Review. Although his view of the Ninth Circuit is needlessly, and irresponsibly, conspiratorial -- the judges of the Circuit "are disdainful of the values most Americans hold dear, and ... will shamelessly subvert legislative intent and clear legal precedent to serve their ends" -- (actually, they subverted clear but nonbinding judicial dicta, and used legislative intent to justify the decision through Supreme Court precedent -- did he actually read the decision?) he provides a cop's-eye view of how the sometimes bizarre, often defendant-friendly rulings by the Ninth can affect street work. One caveat: although "Dunphy" represents the Supreme Court as having upheld all the tenets of the California probationer's search agreement, the Court expressly did not rule on a key condition, the agreement to submit to searches "without ... reasonable cause," because such cause was established in Knights, thus freeing the Court from venturing into that particular legal thicket.

 
I feel better already: Maharishi Mahesh Yogi, the spiritual guru of the Fab Four and ambassador of transcendental meditation (I had to use transcendental meditation once, when I was getting a root canal -- rim shot!) is ready to end terror, and wants a bargain-basement one billion dollars to do it. Evidently the money will go to training 40,000 "Vedic Pandits," which I always thought was an endangered arboreal creature, but seems to be some kind of high-powered meditation specialist who will generate good vibrations and thereby end all war and terror. According to insiders, the miracle worker was attracted to the Netherlands in part by its use of flexible labor contracts, meaning that he won't have to deal with the meditation-worker unions so prevalent in other northern European nations.

I must confess to being a bit doubtful about the success of this enterprise. After all, doesn't the Yogi know? Money can't buy me love....

"Written by Arabs, for Arabs." The omnivorous and oft-updated World Wide Rant notes this story on a United Nations report urging the Arab states to adhere to Western Enlightenment conceptions of human rights and dignity. Good news: the Arab states have made excellent infrastructural improvement over the past 30 years. Bad news: the area is still run by totalitarian states that kowtow to any mullah with a loudspeaker and a political agenda. Oh: the oil money will run out eventually, and very few states have bothered to put together any kind of long-term economic development agenda.

Should we call it "Alleged Independence Day?" Poynter.org's ethics columnist, Bob Steele, celebrates the Fourth by asking if one can be an ethical journalist and a patriot at the same time. I'm kidding, of course, but not exaggerating as much as I wish I were. There's not too much to recommend the column, unfortunately. One wishes that Steele could channel Doremus Jessup, but he ends up giving weak-tea admonishments to his audience: do your best, perfect your craft, brush your teeth, avoid dependent clauses. The only bright spot is the use of Adlai Stevenson's great definition of patriotism as "the tranquil and steady dedication of a lifetime." Or, as Cicero put it, Defendi rem publicam adulescens, non deseram senex: "I defended the Republic in my youth; I shall not desert it in my old age."

Condolences: Word comes from the thought-provoking Rittenhouse Review that updates are on hold due to a death in James Capozzola's family. Regardless of one's political orientation, the Review is recommended work: it's well-written, closely-argued, and highly detailed. My condolences to Mr. Capozzola and his family in what is certainly a difficult time.

 
Yes, the world really is a cold and terrifying place. And, just in case you needed proof of that, you can always check out Disturbing Search Requests (immature content warning), where webloggers of the world unite and share the spookiest referrals from their site stats. Reminds me of the good old days at dying dot coms, when the last server was carted out the door and I was doing Google searches on "DEAR GOD MAKE THE HURTING STOP" (which, oddly enough, today brings up a page entitled "Encouragement for the spouse of a porn addict").

 
Let's talk agricultural commodity exports. You asleep yet? Well, this should wake you up: this article (table of contents here) forecasts a "record 122.1 million bags" of coffee (that's something like sixteen billion pounds) will be produced this year, a ten percent increase from last year. Good news for those of us addicted to our morning espressos, but bad news for coffee-exporting countries, especially since Brazil's coffee production is forecasted to rise 39% over last year, so that not only will the price of coffee be driven down, but Brazil's bumper crop will edge out smaller producers such as Colombia and Vietnam, both of whom are in desperate need of export revenues. (See? I said I'd fit coffee news in here somewhere! Now, what are "coffee rebagging statistics" used for?)

Addendum: Check the comments for an expert's discussion of the topic.

 
It wasn't just a fight for Lennox Lewis: he was a "hyena killer" defending "decent society" against the depredations of Mike Tyson and his ilk. Boxing becomes, for a just a moment, and perhaps not entirely convincingly, a morality play in this article.

 
Suspicious quote of the day: This quote was brought up in a discussion forum, and I found it to be actually quite commonly cited amongst Christian Reconstruction sites. Complete hoax or wrenched from its context? You decide:

"Fundamental, Bible-believing people do not have the right to indoctrinate their children in their religious beliefs because we, the state, are preparing them for the year 2000 when America will be part of a one-world global society, and their children will not fit in."

Nebraska State Senator Peter Hoagland

Hoagland isn't exactly a wild-eyed atheist New World Order type. He's a moderate Democrat, Vietnam vet, and practicing Episcopalian who, after a career in state politics, became a Congressional representative in 1989; the book House Rules was written by journalist and author Robert Cwiklik about Hoagland's freshman term in the House.

More recently (he was denied re-election in 1995), he's been also a partner at Arent, Fox, Kintner, Plotkin & Kahn; and principal of the lobbying firm Colling, Swift & Hynes. I don't know his current whereabouts, but I'm willing to bet Washington, D.C. somewhere.

Anyone know more about this quote? Let me know, or post a comment below....

Addendum: Just found my copy of House Rules, which clarifies Hoagland's military service:

Then there was the gray zone of conduct, the dubious things one has to do, or one does, in order to win. Like telling a reporter on live television, as Hoagland had, "I served for two years in the United States Army back during the Vietnam days. ... I'm proud to have been able to fight ... er ... do my part to preserve democracy then." Though he spent his entire hitch stateside, most of it based in Washington, D.C. -- where he lived, off base, in an apartment in Georgetown.

Admittedly, not exactly Bob Kerrey.

 
Clarence Thomas, Free-Speech Advocate? The ever-surprising Volokh has an updated version of his UCLA Law Review article "How the Justices Voted in Free Speech Cases," finding that Kennedy, Thomas, and Souter are the top three Justices most likely to vote for free speech. Extended information on methodology and a reply to critics are included. Check 'er out.

Obligatory webstats reference: "Hello to y'all coming from dfwblogs.com!" Always nice to see folks out supporting a fellow Texan....

 
This post may feel like a fragment. That's because it is. It was originally part of a much longer post, which will be up soon, discussing the philosophical issues of the Quinones Federal Death Penalty Act decision. However, I quickly found that my main problems with the decision had less to do with the substantive issues, with which I do have some sympathy, than with the judge's readiness to take the claim at all.

Before looking at Rakoff's argument against the federal death penalty, it's worth examining the reasons he gives for taking the claim in the first place. Courts can't simply take on whatever case they wish, being bound by, amongst other considerations, the "ripeness doctrine," which prevents some cases from being considered before their time. Scalia, in Texas v. United States, notes that "A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'... Ripeness 'requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of witholding court consideration.'" (Internal citations omitted)

What this means is that a court has to have some reason to rule on an issue before it can rule on it. In this case, the government argued that "the issue of whether the Federal Death Penalty Act is unconstitutional ... is not yet ripe for adjudication in this case, since neither of the defendants has been convicted, let alone sentenced to death." Rakoff, in turn, argues that "the pendency of the death penalty has immediate practical and legal consequences ... that cannot be postponed."

First, Rakoff notes that "a jury will soon need to be impaneled that ... will be required to determine, first, whether the defendants are guilty as charged, and then, if guilt is found, whether the death penalty should be imposed." Under Supreme Court ruling in Wainwright, "prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant's guilt or innocence" must be excluded from the jury. According to Rakoff, this would "exclude from the jury a significant class of people who would be perfectly fit to serve if the death penalty were absent from the case."

Rakoff also argues that the absence of the death penalty also changes "the very nature of the inquiries that must be made of prospective jurors, both in pre-trial questionnaires and the voir dire at the time the jury is chosen, thereby affecting the jurors' entire view of the case"

While Rakoff is surely correct that he would be forced to strike jurors whose opposition to the death penalty would affect their ability to carry out their duties (a so-called "death-qualified jury"), he provides no reason, beyond the "fit to serve" argument, why this should be a serious issue.

Firstly, the Supreme Court has repeatedly decided that death-qualified juries are not substantially different from their non-death-qualified counterparts in the guilt determination of a trial. In Witherspoon, the Court held that "We simply cannot conclude ... that the exclusion of the jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." That determination on the basis of the record has not changed, despite other cases (e.g, Lockhart) providing other studies in an attempt to support the converse conclusion.

Of particular interest, Buchanan v. Kentucky held that the Sixth Amendment rights of defendants were not violated when a death-qualified jury was used to try both capital and non-capital defendants in a joint trial. Given this, and the Supreme Court's position that "an impartial jury consists of nothing more than 'jurors who will conscientiously apply the law and find the facts' " (Lockhart, quoting Wainwright), the question of the death penalty "affecting the jurors' entire view of the case" doesn't appear to have a solid footing.

Secondly, the worry that "a significant class of people" will be excluded from this case is largely ungrounded. First, the number of people whose opposition to the death penalty is so great as to prevent them from "impartially determining ... guilt or innocence" is unlikely to be so significant as to seriously distort the jury pool. The Supreme Court noted in Lockhart that "those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." In any case, "the removal for cause of [such jurors] in capital cases does not prevent them from serving as jurors in other criminal cases, and thus leads to no substantial deprivation of their basic rights of citizenship."

Rakoff also notes that "the number and ratio of peremptory challenges accorded the parties will differ materially depending on whether or not the death penalty is involved." The appropriate statute, not reproduced in the opinion, reads:

If the offense charged is punishable by death, each side is entitled to 20 peremptory challenges. If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.

(Rule 24(b) of the Federal Rules of Criminal Procedure, if you're keeping score.)

Thus, Rakoff states, "in both absolute and relative terms, the Government has a considerably greater opportunity in a death penalty case to shape the jury." This is true in absolute terms, but not that in a case involving joint defendants, "the court may allow the defendants additional peremptory challenges." Quinones is a multiple-defendant case, thus allowing the judge discretion in shaping the ratio of challenges. This tends to mitigate the effect of the greater number of premptory challenges available to the prosecution.

(I will admit that I haven't gone after much case law involving premptory challenges, though I'll try to get to it over the upcoming holiday. Anyone with knowledge in the appropriate area is encouraged to contact me.)

So much for the argument that jurors will be unlawfully excluded or that they will be turned against the defendants.

Rakoff also argues that "the nature of the challenge to the death penalty here presented is essentially a facial challenge, so that the substantive arguments for and against the challenge will be the same at all stages of this proceeding." But his argument is simply not true. In Herrera, the Supreme Court said that "Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. ... Thus, in the eyes of the law, petitioner does not come before the Court as one who is 'innocent,' but, on the contrary, as one who has been convicted...." This single fact is so critical to any reading of Herrera, as even Rakoff acknowledges (pages 8-9 of the original order), that his claim seems bizarre if not mendacious.

The truth is that Rakoff didn't have solid ground to consider this claim ripe. The issue at hand -- dealing with potentially exculpatory evidence after a conviction -- by definition requires a criminal conviction, and bringing the case to bear before such a harm has been inflicted is premature.

This isn't to say that we have to wait until another innocent is executed to bring this up, since it's a bit hard to litigate from beyond the grave. But considering the unconstitutionality of a punishment prior to the determination of guilt is putting the cart before the horse, with the predictable result of the cart going nowhere and the horse getting frustrated.

 
Is Bernie Ebbers the next Osama? Maybe, if you want to take WorldCom CEO John Sidgmore at face value. From today's NY Times: "John W. Sidgmore, the chief executive of WorldCom, said yesterday that the survival of the company was a national security issue and that his management team was not responsible for the company's accounting problems." More precisely, Sidgmore said, "I believe it is in the interest of our national security, American consumers and the millions of WorldCom's customers and shareholders to make WorldCom's survival a top priority."

Why? Because WorldCom owns a giant frame relay and ATM network? Or because it owns, thanks to its UUNet subsidiary -- a critical chunk of the Internet? Or because WorldCom has the federal FTS2001 communications contract?

This is hardly the first time WorldCom has taken the heat. In August, 1999, WorldCom suffered the single largest data outage in its history. An upgrade of Ascend (now part of Lucent) frame relay switches went awry when a software load went on a "hot" switch -- that is, a switch that was processing traffic. This caused a routing failure that cascaded through the network, resulting in a cataclysmic failure on the so-called "Option 1" (legacy WorldCom, not legacy MCI) network. (For those who care, I believe it was the Jade load that blew up.) The result was near-total meltdown on Option 1 for over a week. To make matters worse, top management, including Bernie Ebbers, routinely minimized or simply lied to WorldCom customers about the severity of the outage, even as frantic middle-of-the-night bridge calls were going on between the executive team, Lucent, and the MCI engineers who were assigned the problem (since the legacy WorldCom engineers had proven themselves incapable of fixing the issue). After several days of this, customers began to flee WorldCom. Most companies doing critical business had backup vendors whose services they used. (Some customers actually had two contracts with WorldCom, having been promised that they could transition to a physically separate network in case of issues on Option 1. This also turned out to be false, but that's another story.) Three years later, only network engineers and the still-embittered Chicago Board of Trade remembers the incident.

The lesson is this: no company, no matter how many miles of fibre or how large its government contracts, is immune from its own responsibilities. The purchase of WorldCom assets by other companies would be considerably less disruptive than the '99 failure, and any attempts to keep a tottering telecom firm on its last legs would only exacerbate the situation down the road. Or, as Clemenceau might say, "Mon ami, the bankruptcy courts are filled with indispensible firms."

 
Oppressive regime of terror, business partner, what's the diff? Looks like a story on Halliburton's dealings with Iraq (through two European subsidiaries) is percolating back up through the independent media, who are shocked, shocked, I say! by the news that some $73 million in parts went to the Iraqi oil industry while Dick Cheney was CEO of the Dallas energy firm. Shocked, despite the fact that this is old hat, going back to WP stories in 2000 and 2001. Recent allegations of financial wrongdoing at Halliburton are no doubt fueling the fire.

Dissident religious group Falun Gong has enlisted a new ally: hackers who hijacked state satellite broadcasts, replacing them with a banner reading "Falun Gong is good." In related news, Beijing has used the recent fire at an illicit Internet cafe to further crack down on Chinese 'Net users, raiding "surfeasies" across the capital and prosperous coastal cities, and forcing legal cafes to install monitoring and blocking software. Just another brick in the Great Firewall of China.

"He bring of the chocolate." Pointless humor of the day: a David Sedaris column from Esquire a few years back. You see, today more than ever, it's critical that religious exegeses provide a better understanding of the commonalities inherent to the various ... ah, screw it. It's funny. Laugh.

Attacking a videogame site's politics is like shooting the Pac-Man ghosts with the lightning gun from Quake, but the incipient release of the "America's Army" videogame from the U.S. military has some folks up in arms, so to speak. Statements like, "This trend of creating mass media to distribute propaganda methods is particularly frightening -- usually the government agencies don't participate directly in mainstream media" really don't deserve much of a response (except that the writer seems particularly unaware of wartime propaganda prior to Vietnam), but I would like to point out that the government did spend $7 million on development for a product that is already being handled by, oh, virtually every other games developer in the market. (Unless I missed that release of "Tom Clancy's Black Bloc Protestors.")

 
Administration Bioethics 101: The President's Council on Bioethics' website is up and running, complete with transcripts of its proceedings, which sound more like graduate symposiums at Notre Dame than bureaucratic meetings. The discussions are certainly thoughtful; whether the participants represent the full range of bioethical thought is another question entirely.

'Intelligent Design' Gets A Drubbing at Physics Today, where Kansas professor Adrian Melott warns that the barbarians (or, perhaps, the Apostolic Christians?) are at the gate, "well funded and nationally coordinated ... obfuscate[d] sufficiently well that some educated people with little background in the relevant science have been taken in by it." Ohio physicist Mano Singham takes a more philosophical tack, appealing to American Pragmatism to undermine the claims of ID: " Science works--and works exceedingly well--because of its naturalistic approach, predictive nature, and methods of operation. To be valid, science does not have to be true," thus suggesting that the process of scientific discovery (pace ID adherents) is the critical path that must be taken. Charles S. Peirce would be proud....

Discover is not my usual choice for scientific information, but a link from Volokh on the future of artificial blood is an interesting nibblet from the frontier of hemochemistry.

 
Run for your life: more Newdow news! The ever-reliable law.com has this interview with Newdow judge Goodwin. Some of the best lines: the media "can't handle anything more than a haiku of about four lines," and the judge "never had much confidence in the attention span of elected officials for any kind of deep thinking about important issues." And I always complained that judges were too reserved during interviews....

"I felt as though my 4th Amendment was violated." The Smoking Gun has this pro se complaint filed by a citizen who alleges unreasonable search and seizure. Judge Emmet G. Sullivan (you may remember him as the judge who rejected government attempts to dismiss Linda Tripp's witness tampering suit) has this one, so it's very likely that this will get more scrutiny than it might under other judges. The court's Files and Copies section hasn't returned phone calls regarding the current status of the case, but it is almost 4:50 on the East Coast. (Ah, the languid life of a federal employee....)

 
Shocked, Part Two: WorldCom may have improperly tapped into accounting reserves created after the company's merger with MCI, according to press reports released today. Reserves can be used to both bury losses and inflate profits, but it's not clear right now exactly what WorldCom did, with what reserves.

Upon reopening trading, WCOME (formerly WCOM) dropped to less than six cents per share, meaning that you can now get five shares out of the gumball machine at your local supermarket. They make lovely coasters for that drinking lunch, or you can shred them and use them to pack up your cubicle following your layoff.

WorldCom will be delisted from the NASDAQ on Friday. In related news, Tyco head John Fort told analysts Tuesday that "something like WorldCom just couldn't happen here," perhaps marking the first time that a tax-haven-based company involved in art smuggling was able to present itself as ethical.

 
The Greatest Crash? Sass links to an interview with JK Galbraith (whose upcoming book attacks, amongst other things, Keynesian rate-setting in favor of statist price controls). Galbraith is an excellent writer and charming person, with a truly dangerous hand for aphorism, but it's pushing the point too far to consider him a "prophet whose warnings have come to pass."

Galbraith's career began with the argument that large firms could be countervailed only by equally large unions, and the rest of his works continue that theme. In the most famous chapter in his most famous work (The Affluent Society), he claimed that corporations had achieved the power to control the minds of consumers through advertising, so that they created the markets they sold into. Conversely, in a humane state, every consumer's desires "must be original with himself" to have any value.

Two critiques appeared to devastate Galbraith's thesis: the first is the simple evidence that advertising is rarely more than promotional only. Bad products sink in the market, despite being backed by clever ads. Even the best PSAs have failed to change youthful drug abuse. The quantifiable returns on advertising are almost never as great as people suspect.

The second attack is philosophical. Hayek argued that, except for the most basic needs, no desire is sui generis, as Galbraith would seem to want; every advanced desire, every want, every need, is created from the result of societal interaction. This is as true of the desire to paint landscape as it is to drink Pepsi. Thus, to argue "that a desire is not important because it is not innate is to say that the whole cultural achievement of man is not important."

Galbraith's final judgment on the corporation came in his The New Industrial State, and it's this book that has been most roughly treated by history. His vision of massive corporations whose vertical and horizontal integration lets them control prices and markets as if manipulating a puppet has been taken to task by the failure of American giants, Japanese keiretsu, and Korean chaebol, to name the three most obvious examples of "new industrial states." Competition is alive and well in the real world, putting paid to his thesis of necessary state intervention.

What makes Galbraith particularly misleading in the current context is that it wasn't the invulnerability of the Enrons and the WorldComs that spurred them to financial illegalities; it was, in fact, their sheer weakness. In retrospect, the Skillings and Ebbers of the corporate landscape weren't colossi standing athwart the rivers, but beggars whose success was predicated on the handouts of reckless financial markets. Their frenetic efforts to convince consumers to use their products, and the stock markets to fund their operations, led them into ever-more desperate tactics, culminating in spectacular self-destruction.

More Sass From the Frass: We're on different sides of the political and economic divide again, but Sass provides another link to a new blog discussing, amongst other things, why sweatshops aren't as bad as you may think they are. As Paul Krugman puts it, "Bad jobs are better than no jobs at all."

 
A life in letters: Why is it that blogs, despite their inherent absurdity, are so popular? Why do we take so seriously our thoughts and statements, even though most blogs are lucky to get thirty hits a day? (Except for those that aspire to thirty, of course.) It's too facile to dismiss them as "people's publishing" -- the large number of academics and journalists, who presumably have more traditional outlets for their writing, in the weblog world suggests that there's another need that's being satisficed. (Although one might cynically, if not without profit, argue that even thirty hits are more than the average journal article is awarded these days.)

Literary precedents are plentiful and misleading. Some blogs of the better variety are much like the belles lettres society of 18th- and 19th-century Europe, while the more political are often like the diaries-cum-ledgers of Renaissance Florence, in which families tracked their personal, political, and financial dealings. The competing soapboxes brings to mind colonial coffeehouses, such as the Green Dragon, where the greatest thinkers of revolutionary Boston would argue and declaim for hours on end.

But what is the need that's being expressed in the blogs? And, in the future, will our descendants read compendiums of blog entries in the same way we read the letters of earlier personages? (Pity the poor scholar who must wade through some celebrity's desolate entries about his cat or the terrible weather on such-and-such day.)

Well, moving on. I'm finishing a quick piece on the Quinones federal death penalty decision that I'll get out later this morning; the CIA has an interesting article on how the OSS, helped by American trade unionists(!), recruited Germans to spy on the Nazi war machine -- and yet our intelligence and law enforcement services have trouble hiring someone who so much as speaks Arabic or Farsi; the Times has a predictably tedious and well-meaning editorial praising Quinones (where is that "cogent, powerful argument" they're talking about?); have I told you about my cat? He loves this terrible weather....

 
CoulterWatch: Atkins was too tempting for Coulter to stay away from, in her latest column.

In Scalia's dissent, I read a quote from the state's case that "a psychologist ... found 'absolutely no evidence other than the IQ score ... indicating that [Atkins] was in the least bit mentally retarded' and concluded that [Atkins] was 'of average intelligence, at least.' " At the time, I wondered if that meant that Scalia didn't have a copy of The Bell Curve by his bedside table. Conversely, Coulter argues that the majority opinion has, for all intents and purposes, enshrined "The Bell Curve [a]s a matter of constitutional law." Needless to say, she's rather pleased by this idea. Time to check out her assertions:

(1) Coulter claims that "Atkins avoids his capital sentence if he is at least smart enough to know how to fail an IQ test." I touched on this earlier; mental retardation isn't something that is simply faked at a moment in time, because it requires a history of observed behavior and test that must have probative value. This is one of the weakest arguments against Atkins, and I'm still disappointed that Scalia indulged in it.

(2) "Consider what 'retarded' means in this context. It does not mean that Atkins could not understand the difference between right and wrong. The law already accounts for that possibility with the concept of legal insanity. It does not mean he could not assist in his own defense. The law already accounts for that possibility with the concept of legal incompetence." I agree that Atkins has the troubling effect of creating a class of dimished culpability that goes beyond traditional legal concepts. No arguments with Coulter here, though it's really more of a factual statement than opinion.

(3) "As far back as 1914, criminologist H.H. Goddard concluded that '25 percent to 50 percent of the people in our prisons are mentally defective and incapable of managing their affairs with ordinary prudence.' Crimes of violence in particular -- murder, rape and assault -- are all correlated with low IQs." Goddard is not exactly remembered fondly by the scientific community, and his work is generally considered on a par with Galton's "beauty maps" of the UK. His "Kallikak" family is a fraud on the scale of the Piltdown Man, consisting of heavily-altered photographs and mendaciously selected data. His studies proving (using the word ironically) lowered intelligence amongst immigrant populations have been utterly discredited, while still appealing to the pseudo-intellectuals that populate Mankind Quarterly. He was a eugenicist who had total faith in the ability to spot the feeble-minded and moronic by sight. Quoting Goddard, though it provides a spurious statistic for her column, suggests that she was too lazy (or deadline-pressed) to find a scientifically-accepted study.

(4) "Thus, the Supreme Court has now prohibited the death penalty for precisely those people who are most likely to commit death-penalty level crimes." It pains me to write in defense of a decision I disagree with, but this is a gratutious statement given the nature of the decision. If it is unconstitutional to execute a particular member of a class, then the number of persons belonging to that class is irrelevant.

(5) "[L]iberals acknowledge the concept of IQ only when attacking Republican presidential candidates or trying to spring a criminal from death row. The court has prohibited IQ tests from being used in hiring as a violation of the Civil Rights Act (Griggs v. Duke Power Co.). But to limit a killer's culpability, IQ tests are evidently completely reliable." To provide context, Griggs -- a unanimous decision, incidentally -- considered the question of

whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education ... or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites.

The Court memorably found that "tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox ... What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance."

There is in a certain sense logic to Coulter's comparison: Griggs banned using IQ tests for positive effect when not related to job performance, and Atkins lets states use IQ tests (or whatever standards they choose) for postive effect, but she ignores the fact that the majority believes that there is a significant relationship between mental retardation and moral acceptability of execution. You can disagree with Atkins (as I do), but you've got to play between the lines drawn by the Court, and the two cases don't have any plausible connection beyond the most trivial.

(6) "But now liberals are overjoyed that such a biased test purporting to measure 'intelligence' -- a subject that we don't even vaguely understand -- is going to be used to empty the nation's death rows." Ignoring the scare phrase at the end -- Coulter seems to intimate that the Court created a revolving door for killers -- she is also willfully ignoring that The Bell Curve discussed IQ levels between people who are in the same intelligence ballpark. Virtually all experts use IQ tests to determine general levels of intelligence, because extremely low IQ scores indicate severe mental retardation, extremely high scores a high intelligence, and so on. But what Herrnstein and Murray tried to prove was a genetic correlation between IQ and race, and it was there they failed. (Parenthetically, I find The Bell Curve interesting only in that it's a book on eugenics that lacks even a basic understanding of population genetics, their ostensible subject. One analysis of a dataset does not a scientific argument make.) Any criticisms of The Bell Curve must be understood in that light, and the rest of her argument -- read the link, so I don't break fair use guidelines -- is inseparable from the context of The Bell Curve and its critics. (It's also worth nothing that the book's most public critics were never the most effective, especially the late Stephen J. Gould, whose very name makes some biologists cringe. Every undergraduate population genetics book brings up The Bell Curve, dismisses it immediately on the basis of flawed analysis and a refusal to consider environmental factors in phenotypic development, and then moves on.)

Coulter and I agree on one point: Atkins is bad law, end of story. It's unfortunate that her brand of combative but facile conservatism causes her to oversimplify for the benefit of sound-bite rhetoric, but it's hardly unusual.

 
Low crimes and misdemeanors: An inmate who assaulted prison guards and medical personnel claimed that he was afraid of sedation and was acting in self-defense. Important safety tip: when you're afraid of being sedated, don't give them a reason to sedate you. The court was unpersuaded: USA v. Ebert

A man convicted of bank robbery entered a motion to vacate on the grounds of incompetent counsel, arguing that his attorney failed to request a psychiatric evaluation, despite there being no evidence the defendant was psychologically impaired in any way. Perhaps if counsel had been wearing his tinfoil hat... Denied. Cox v. US

Yet another mental illness case: Julie Stokes claimed relief from a "lack of prosecution" dismissal, claiming she had been disabled by a temporary bout of mental illness. The court decided she was "not faultless in the delay," since her claim of mental illness was an "unsupported allegation," and she was represented by competent counsel, anyway. But she was crazy enough to go pro se ... Stokes v. Merson

Same court, different case: "After being denied leave by this court to file a second or successive petition under 28 U.S.C. § 2255, petitioner Darryl Whiting proceeded to submit just such a petition in district court." Must have been a full moon. Another pro se, surprise, surprise. Whiting v. US

(Note that the First Circuit puts its unpublished opinions on its website, unlike certain other venues. Will the other courts take note, please?)

 
Don Quixote rides again.... Today's windmills: SEC chair Pitt promises the investigation of Halliburton will continue, shrugging off questions of conflict of interest regarding accounting problems during Dick Cheney's tenure as CEO ... Oklahoma Republican J.C. Watts is retiring, after telling the GOP that he was tired and wanted to make more money for his family. Watts had complained in the past that he was often kept out of the decision-making loop by his party. Former RNC chief of staff Tom Cole has already announced that he's a contender if Watts does retire ... Also from Roll Call, a backgrounder in preparation for James Traficant's ethics hearing next month. Beam me up! ... Dick Morris -- Dick Morris! -- goes green at The Hill (here's another column of his discussing Gore's inconsistent greenery as a political liability) ... Volokh links to a defense of Ricardian trade theory as applied to GATT: I've seen the effect of third-world trade barriers in action, and it usually comes down to buying a bag of kerosene because the domestically-made batteries are four times as expensive as a coppertop ... and, yes, I know, I know that the Second District ruled the federal death penalty unconstitutional today; I've read the opinions (they're short, pick 'em up here and here), but want to go back over the cited cases (especially Herrera -- the subtle turns of habeus law aren't easy sledding for me, I fear. Anyone else want to take a stab at it ... please?) before posting a comment.

 
Qui custodiet? Lt. Col. Biff Baker (U.S. Army, ret.) thought he was working to ensure fiscal accountability for the SDI program. But his reports on waste and fraud got stymied before they could reach the top, and when he went around the normal channels, he got fired. Sassafrass Log links to the story.

(And, yes, okay, I jumped the gun on my description on Sass. How about "more like Pacifica, but without the internal political war?")

"The Constitution doesn't matter that much." Jonah Goldberg has a column at NRO that looks at the Newdow flap through the lens of American political culture (by way of Czech casinos, but that's another issue entirely). While I don't necessarily want to find myself on the slippery slope his arguments imply, he kinda-sorta raises the question of dealing with an opinion that is legally correct but emotionally, politically and culturally beyond what virtually all Americans are willing to accept.

 
Never say never: A few weeks ago, while talking about Atkins, I argued that "the Court has created a claim upon which groups that are proportionately overrpresented on death row (and I'm thinking primarily of black Americans here) can argue that they should be exempted from capital punishment, at least until such factors can be fixed. That such a claim will ever be advanced in court is unlikely (though it has been made as an effective argument for the abolition of capital punishment in toto), but its appearance in a majority opinion is striking."

Well, the man who argues a categorical should check the upcoming docket, because the Supremes released their slip opinion for United States v. Bass, reversing a Sixth Circuit decision based on just that argument. Two page per curiam opinion is here.

 
More Newdow musings: over the weekend I came across some references to the 1780 and 1782 Congressional declarations of Thanksgiving, which further highlight problems with last week's decisions. For example, the 1780 proclamation specifically notes that Congress "recommends to the several states" a day of Thanksgiving "that all people may assemble on that day to celebrate the praises of our Divine Benefactor ... and to offer our fervent supplications of the God of all Grace" in order that "the knowledge of Christianity [will] spread over the earth." (Full text is here, courtesy Library of Congress.) Likewise, the 1782 proclamation again calls for a day of Thanksgiving "that the religion of our Divine Redeemer, with all its benign influences, may cover the earth as the waters cover the seas." (Full text here.)

There's no way these laws would pass an Establishment challenge today, even before Newdow. Although I certainly don't believe that the worldview of the Founding Fathers is necessarily controlling, it does seem to me that there is probative value to these early proclamations, so that a decision like Newdow, whose slippery slope inexorably leads to the review of even these statutes, requires extraordinary justification. However, that justification is not up to the 9th Circuit to provide, because to do so would be to overrule existing Supreme Court precedent. As I argued last week, any reversal of Newdow will by necessity create new law, probably on the basis of Rehnquist's argument that such laws or statements today lack normative value.

Given all the perfectly respectable arguments against school vouchers, it's surprising that the NY Times' screed against the Supremes' decision in Zelman v. Simmons-Harris doesn't make, well, any of them. Instead, we're treated to the usual variety of well-known shibboleths:

(1) The stipend cap "is far less than most private schools cost. But it is just right for parochial schools where, for a variety of reasons, tuition is far lower." Does this mean that the Times would support vouchers if the cap was higher? And, given time, won't demand spawn secular private schools with tutition within the cap limit?;

(2) "What is holding the public schools back, however, is not lack of competitive drive but the resources to succeed." But this is directly contradicted by the latest suprise from the educational front, last week's news that a Washington, D.C. school sent test scores skyrocketing not by increasing funding, but by separating classes by gender and skill level.

(3) Vouchers "also skim off some of the best-performing students, and the most informed and involved parents, from public schools that badly need their expertise and energy." But if the needs of those "best-performing students," such as a class environment where they can learn, aren't being met by the public schools, why shouldn't those students -- why shouldn't we demand those students -- move to schools that will provide that? More to the point, when did it become the responsibility of the children to support the schools, rather than the schools support the children?

(4) The "decision also undermines one of the public school system's most important functions: teaching democracy and pluralism." But it is hardly evident that either public schools are excelling in this regard, or parochial schools are failing. More to the point, if religious private schools are such a clear and present danger to the Republic, why is it that the nation's most prominent politicians of all political leanings send their children to the Quaker school Sidwell Friends?

(5) "In the religious schools that Cleveland taxpayers are being forced to sponsor, Catholics are free to teach that their way is best, and Jews, Muslims and those of other faiths can teach their co-religionists that they have truth on their side." The key term here is "co-religionists:" one suspects that if a school of one faith is particularly militant in teaching its beliefs, it would quickly find its student population dwindling to its co-religionists only, thus providing an economic incentive to create more secular schools that can cast a wider net.

The Times' editorial may seem fine to the paper's core constituency, but there is an oft-remarked contradiction to their position: it is not the editors of national newspapers whose children attend public schools, and those private schools their children attend are virtually always grounded in one faith or another. Until the Times explains away that problem, their editorials on this issue will be hardly worth considering.

Another dot.con story, courtesy of Salon, here. Bodybuilding, fake invoices, Web spiders that falsified clickthrough traffic, an attempt to create a big-budget action flick on company time ... and viral spyware, to boot. Charming.

If the World Cup wasn't bad enough, now tennis is becoming a diplomatic pawn, thanks to a Pakistani player' choice of an Israeli doubles partner in Wimbledon. ESPN story here. (Thanks to Mr. Bingley for the link.)

Speaking of Pakistan, al Qaeda's operations in the always restive Northwest Frontier Province have finally provoked a denunciation from the Pakistani government, as noted in a Pakistani Observer article. Dawn also reports that the opposition Pakistan People's Party (PPP) of Benazir Bhutto charges that the Interservices Intelligence agency (ISI) is -- once again -- interfering with domestic political activity. The Islamist-dominated ISI, often a rival of the secularist Armed Forces, may be working with them in this case, supporting the moderate Islamic party Pakistan Awami Tehreek (PAT) as well as more Islamist groups.

 
Not much to talk about, except that I've reached a new low in late-night slacking, having watched an hour's worth of what might charitably be called "vintage" TV on Cartoon Network. I think I understand how those old Hanna-Barbara cartoons work: each one teaches a specific moral lesson. Space Ghost, for example, teaches Kipling's "white man's burden." The Herculoids teaches xenophobia and unhealthy suspicion. And Birdman ... well, I don't know what Birdman is supposed to teach, really, but I think it has something to do with renewable energy sources. Does anyone really have warm childhood memories of these shows?

"The A-Team of terror." WP has this story on worries that Hizballah and Al-Qaeda are working on joint operations.

Speculations along these lines have been rife since September 11, when the German connections of the hijackers were made apparent. Hizballah is an organization whose loyalties are still determined by tribal lines, and there are numerous unconfirmed reports, primarily from Israeli news organizations and government sources, that Hizballah leader Imad Mughniyah made several trips to Germany in the year or so before 9/11, where many members of his extended family live.

Ali Mohamed, the former Army noncom turned Al Qaeda pigeon, testified during the embassy bombing trials that, “I was aware of certain contacts between al-Qaeda and al-Jihad organization, on one side, and Iran and Hizballah on the other side. ... I arranged security for a meeting in the Sudan between Mughniyah, Hizballah’s chief, and bin Ladin. ... Hizballah provided explosives training for al-Qaeda and al-Jihad. ... Iran also used Hizballah to supply explosives that were disguised to look like rocks.”

Whatever the nature of the cooperation between the two entities -- and there's little dispute that it is extensive, and that it flows both ways, with bin Ladin providing financing and Hizballah providing training, logistics, and materiel -- it's unlikely that the relationship is too cozy, since the two groups' objectives are inherently incompatible, just as the relationship between Iraq and Islamist terrorists is a marriage more of convenience than ideology. Such are the complexities of a very dangerous and shadowy world.