Arbitrary Aardvark

Earlier this year I made a friend on myspace.com, who sent me a song, American Idiot.
It was pop punk, upbeat cheerful, I liked it and asked him who it was by. 'Green Day.'
In 94 when I moved to indy, my roommate sid was big into green day, but I'd never heard them.
Right now this post is a placeholder for an entry on flagburning.

link to waddling thunder entry at crescatsentia.org would go here.
"sid" would be linked to the 'sid lives' saga. Sid was the first guy I knew to get shut down by the software cops for filesharing. In 1995.
posner case on flagburning would go here.lawson v hill.
indiana statute banning flagburning would go here.
link to iclu page about the case.

if green day lit a flag on fire at one of their concerts, could they yell fire in the crowded theatre? I'm not much of a playwrite/playwright, but I'd like to write a play called Fire!

Meanwhile, Jeremy Blachman (sp?) wins fame, anonymous lawyer unmasked. Deep Throat for the new millenium, exposed by the crack investigative journalists at the nyt.
I guess they asked him. I read (red) Jeremy at crescat, and enjoyed Anonymous Lawyer, but did not catch on. The style is similar, but the length was different, like a haiku master writing an epic saga. I'm supposed to be hacking together a deed, the guy wants to close by the end of the year, tomorrow.

Don't wanna be an American idiot.
Don't want a nation under the new mania.
And can you hear the sound of hysteria?
The subliminal mind fuck America.

Welcome to a new kind of tension.
All across the alienation.
Everything isn't meant to be okay.
Television dreams of tomorrow.
We're not the ones who're meant to follow.
For that's enough to argue.

Well maybe I'm the faggot America.
I'm not a part of a redneck agenda.
Now everybody do the propaganda.
And sing along in the age of paranoia.

Poor get richer, live longer. Good news roundup by Radly Balko via instapundit.
This is the genuinely poor, like chinese, rather than the poverty lobby, making $10,000+ in government benefits packages plus x in off the books income plus y in declared income, and complaining about being poor.
That lifestyle isn't easy, but poverty isn't their problem.
And of course i'm not saying government benefits go mostly to the poor. Taxation tends to involve wealth transfers from the poor to the rich, especially when calculated in terms of percent of disposable income.

For some reason today I was thinking about the periodic table.
Serendip-itously*, here's a flash animation of the tom leher song about the elements, to the tune of modern major general.
*serendip = ceylon = sri lanka, and istanbul's not constantinople.

The Next Billion Years and the Significance of the Emerging Global Brain
For some reason I find it easier to deal with this big picture stuff than the day to day issues like my frozen pipes.

arthur clarke reports from sri lanka. via slashdot.

No ID Tshirts from cash & carrion. www.no2id.net.
while shopping support the space program with a virgin thong.
This is about britain's national ID controversy.

Virgin Galactic's first ship will be named the VSS Enterprise, reports wired.

A new zealand approach to social security:
I don't usually click on banner ads, but i liked this one.
http://www.sorted.org.nz/calculator_index.html
In the united states, government provides a retirement pension because the graduates of its schools are unable to do the math to plan their own retirement.
New Zealand provides free online financial planning tools, at nearly no cost.

I have returned. Over the blizzard and through the goods.
I am gratefully logging in, after a week offline and out of an urgent need to avoid the reality of leaky frozen pipes.

So far i have ranted at catalarchy and chatted with a chat buddy and now a blog entry.
over at this week's host for the carnival, trends for 2005. http://www.business-opportunities.biz/
# Obesity - While rising obesity levels are old news, apparently the trail of business niches to serve bigger people is just getting legs. It includes everything from the obvious (plus-size apparel) to the more subtle (plus-size caskets, and higher-capacity scales).
# The Third Place - People are looking for a third place to get away from home and work (the first and second places). Restaurants, coffee shops and other outlets equipped with WiFi are going out of their way to keep patrons around as long as possible. Sounds like just what we don't need with expanding waistlines -- eateries that never want you to leave....
# Snobization - "Middle-class Americans are turning into a bunch of snobs," according to the article. It refers to everyday items being turned into chic luxury goods, but not necessarily expensive ones. The take-away for small businesses: see if you can transform your products and services from ordinary to premium.

Or, the unpleasantness of the bologna club sandwich...
Let's put these three trends together.. a club for fat snobs. Call it the city club.
Like a country club, no golf or tennis courts. Videogames, wireless net access, port,
a butler.
Variation: city club for bears, fat gay guys. Comfy chairs, good books, driver handy,
sort of a co-op arrangement. Oh, like giovanni's room in philly, only not as a bookstore, but as a membership-driven library. Ok, that was the creative thought for the day. Now I'm off to my club, the unicorn.

oh, the rest of the trends list, briefly:
* Authenticity -
* Age 35 -
* Multitasking and Memory Loss -
* Obesity -
* The Third Place -
* Snobization -
* Uniqueness -
* Life Caching -

So a third place for obese gentlefolk of taste (with a gay cabal offering the ingroup snob appeal factor) reeking of authenticty, pitched at 35somethings, with memory aids from espresso to lifechaching archiving to nootropics, all very unique.
Authenticity is the key - once you can fake that, you win. Craft a uniquely authentic look, then franchise it - worked for Abercrombie and Fitch.

hiatus for a week.

Judge Skelly Wright has a blog. I found this amazing.
Then I noticed the title - arbitrary and capricious.
No longer sure it's that skelly wright.

firefox v explorer. new york times via infoshop.
Infoshop is also pushing an anti-inaguration demo. I used to go to events like that when younger, until I came to the conclusion they are part of the DC tourist industry.

Now this is just absurd.
Seattle times article, cited at not reason blog, linked at catallarchy, claims the bush government is requiring licenses to print authors from certain countires, iraq, cuba.
Insane.
Have they not heard of Peter Zenger?
(zenger was tried for printing anonymous books without a license. jury refused to convict. as a result, we have first amendment and trial by jury in bill of rights.)
question: is book banning a "high crime and misdemeanor"?

true meaning of kwanza from catallarchy

Kansas finds death penalty unconstitutional, 8th amendment violation, reports Howard.

Kepler: nasa mission 2007 to look for earthlike extrasolar planets.

http://ninowatch.blogspot.com
a more critical (but not as in mean or nasty) complement to ninomania.

a noteworthy entry is his review of a book. go to the page for the links to these cases. (firefox is cool, but it doesn't have a handy dandy way to cut and paste and keep the links intact.)
“Scalia’s greatest hits.” And Ring does an admirable job of giving us Nino’s chart toppers. Chapters two through twelve are arranged topically, with brief comments and introductions to the well-selected Scalia opinions. Here’s the breakdown of topics and excerpted opinions:
Chapter Two: “Intepreting Laws,”P.G.A. Tour, Inc., v. Martin, 532 U.S. 661(2001) (dissenting);
Chapter Three: “Separation of Powers,” Morrison v. Olson, 487 U.S. 654 (1988) (dissenting);
Chapter Four: “Race,” Richmond v. J.A. Crosson Co., 488 U.S. 469 (1989)(concurring); Adarand Constructors, Inc. v. Pena,515 U.S. 200 (1995) (concurring); Grutter v. Bollinger, _U.S.__ (2003)(concurring & dissenting);
Chapter Five: “Abortion,” Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (concurring); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992)(concurring & dissenting); Stenberg v. Carhart, 530 U.S. 914(2000)(dissenting);
Chapter Six: “Death Penalty,” Callins v. Collins, 510 U.S. 1141 (1994)(concurring); Atkins v. Virginia, 535 U.S. 304 (2002)(dissenting);
Chapter Seven: “Religious Freedom,” Lee v. Weisman, 505 U.S. 577 (1992)(dissenting); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)(concurring);
Chapter Eight: “Gender Equality,” U.S. v. Virginia, 518 U.S. 515 (1996)(dissenting)
Chapter Nine: “Free Speech,” McConnell v. Fed. Election Comm’n., __U.S. __(2003)(concurring & dissenting);
Chapter Ten: “Non-Speech and Un-Free Speech,” Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)(concurring); Nat’l. Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (concurring);
Chapter Eleven: “Homosexuality,” Lawrence v. Texas, __U.S.__(2003)(dissenting)
Chapter Twelve: “Other Rights,” Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990)(concurring); Troxel v. Granville, 530 U.S. 57 (2000)(dissenting).

I can’t consistently speak my mind and be understood even when I know the words for the sentence. Why can the police simply stop someone and ask for identification: can’t we have a debate on whether this is a necessary evil or a dangerous one. Why must students always take their notes in blue pen: it’s not so an original can be told from a Xerox

Amanda is giving up on kazahkstan. I think she wasn't corrupt enough (possibly a gender linked trait) to see the entrepreurial opportunities. But I was reminded of:

The defendant also stated that he did not need to produce identification, that he was on public property and that "this isn't Russia. I'm not showing you any . . . ."
The defendant was convicted, based on these actions, of interfering with a police officer, but the Appellate Court reversed. Refusing to identify oneself and saying "this isn't Russia. I'm not showing you any [identification]" was perfectly legal under Connecticut law... I haven't seen Caddyshack, but I have read Hiibel.
Papersplease.org.

moving story of a guy who narrowly escaped the death penalty in texas.

$1=
104 yen.
3/4 of a euro.
$1.94= 1#.
unfounded prediction: during 2005, yen breaks thru 100 mark for a little while,
and it becomes a media frenzy.

Howard points to a cool case out of Maryland, where a felon whose guns were seized suffered a taking, so the guns must be returned to his agent or their value paid.
The case is not final, and has been complicated procedurally, but establishes an important point about property rights and gun rights. The case was brought under section 24 of the Maryland constitution, which is a due process clause based on article 39 of the magna charta.

BORing: happy 213th.

http://www.mcwilliams.com/books/aint/toc.htm
Howard points to a dalia lithwick article at slate about CJ Rehnquist, who is undergoing chemotherapy, telecommuting in his pajamas, and may or may not be using medical marijuana. Well, probably not, but perhaps he should.
Her title is, Ain't Nobody's Business if I do (or is it if he does.)
That's the title of my late friend Peter's best known book.
Peter was killed for his work with medical marijuana patients in California,
so the Ashcroft case is of supreme importance to those of us who treasure his memory.

webcomic break:
http://tang.keenspace.com/manga/Diana_frame.html
meanwhile, my quest for world domination continues.. i've been linked at left2right. thanks.

I assume anyone who reads this reads anonymous lawyer. It's linked at bashman's or someplace. But I hadn't seen anonymous law prof until today. hat tip ninomania.
What's that quote from Talley? Some things are said anonymously or not at all.

Men in black.

Eugene Volokh, December 14, 2004 at 1:20pm] Possible Trackbacks
A New Phrase for Bloggers?

"Spending Delaware time" (or "Delawaring") -- spending at least 20 hours a week on one's blog, enough to be treated as a journalist for the Delaware journalist's privilege.

I don't see this one catching on. I am an ex-patriot Delawarian. I live various places along 1-70, currently Indiana. I blog the requisite 20 hours a week enough weeks, although it's not like I punch in or keep track. It was at the university of delaware, on a system called PLATO in 1980, that I became an online addict.

Volokh on the "thou shalt not lie" exception to the freedom of speech.
Remind me never to litigate against this guy.

It is indeed an oversimplification, but a necessary one (I made the change for clarity, not to change the substance): The exception is not accurately called a "defamation" or "libel" exception, as some say, since that doesn't explain cases like Time v. Hill or Madigan, the lack of protection for perjury, and so on. Saying that it's an exception for deliberate lies is not completely accurate (NYT v. Sullivan says that one class of deliberate lies, deliberate lies about the government, is categorically immune), but it's closer to accuracy than the easy alternatives. It's a tangential point, so I didn't want to get into a long disquisition about all the uncertainties about the scope of the exception (something that I've thought a lot about -- I assigned this as one of the topics in my Harvard seminar last Fall, and organized a panel on the subject at the Federalist Society conference this Fall).

In any case, for S. Ct. cases that note the lack of protection of deliberate lies (the First Amendment rules for criminalization and civil liability, as you know, are largely identical), see Time v. Hill and Madigan. For lower court cases reaching the opposite result from No on 119, see State v. Davis, 27 Ohio App. 3d 65 (1985), Briggs v. Ohio Elections Comm'n, 61 F.3d 487 (6th Cir. 1995), and Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (the last is in a somewhat different context).

So I think there is an exception for deliberate lies, whether they are defamatory (Sullivan), place people in a false light even without injuring their reputations (Hill), get charitable contributions under false pretenses (Madigan), or (likely) constitute perjury, false statements of fact to government officials (a la 18 USC 1001), and the like. There might be an exception to this exception, for seditious libel and possibly, if No on 119 is right, for some statements in election campaigns and such. But that lies are unprotected is a close first approximation, especially in the context of my post, which dealt with civil liability, where the usual claims based on lies are libel, false light invasion of privacy, or fraud.
- Hide quoted text -

-----Original Message-----
From: arbitrary aardvark
Sent: Tue 12/14/2004 12:19 AM
To: Volokh, Eugene
Cc:
Subject: Re: blog proofreading comment

(e.g., the "false statements of fact" exception, which allows lawsuits
or even criminal punishments for deliberate lies).

You seem to have added more words while retaining the error.
No on 119! and Moses v. Louisiana show that "deliberate lies" or
"false statements of fact" cannot be punished without more.
But maybe there are statutes which criminalize deliberate lies?
Have they been upheld?

On Mon, 13 Dec 2004 20:13:26 -0800, Volokh, Eugene wrote:
> Good point, thanks!

> -----Original Message-----
> From: arbitrary aardvark [mailto:gtbear@gmail.com]
> Sent: Mon 12/13/2004 10:58 PM
> To: Volokh, Eugene
> Cc:
> Subject: blog proofreading comment
>
> "But they are permissible only because the speech on which they're
> based falls within an exception to First Amendment protection (e.g.,
> is a lie)."
>
> Now I know you know that a lie is not an exception to the first
amendment -
> you even went on to cite nyt v sullivan.
> But some of your readers might not.
> Is that what you meant?
> I tonight saw a fox news case characterized as a "right to lie" -
> didn't read the case myself.
>
> I expect you also know that alien and sedition acts contained the
same "false malicious and defamatory" standard as Sullivan.
> No response required.

There are cases where deliberate lies are not protected, but they tend to contain some additional element.
defamation,
under oath in court,
fraud, or
false light (vanishly small number of cases, at least in my state.)
i have read briggs v ohio but not recently.
i don't know these other cases, and don't have lexis.
off to look at hill and madigan.
Madigan (the lisa madigan who argued the drug dog case) was the viet vet telemarketing case, in which a unanimous court said "public deception...is unprotected speech." This was in a fraud context, but it establishes eugene's point. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. __, 123 S.Ct. 1829 (2003) (No. 01-1806)
Time, inc v. Hill (1967)http://laws.findlaw.com/us/385/374.html

Richard M. Nixon reargued the cause and filed a brief for appellee.
brennan:
But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity [385 U.S. 374, 390] in the case of alleged defamation of a public official concerning his official conduct.

OK, so the court is saying that deliberate lies are unprotected. This reminds me of a discussion in Plato's Republic, in which Socrates says fiction will be banned in the ideal republic. Yet the Republic is fiction. Plato made it up, unlike earlier works that were transcriptions of actual Socratic oral argument.

Is the court saying fiction is unprotected? Twain, a fellow alumnus of the U of Missouri School of Law, was a big fan of the art of lying. I think Eugene is right where he says that the court has said that lies are unprotected, but I think some of the time they should be.
Proper scope of the exception:
Libel, per sullivan standard.
Fraud, when the 9 elements of fraud are present.
Perjury, when statements are freely given rather than coerced.
Occasionally there is a false light or invasion of privacy case where other privately held rights trump the free speech interests.
But I believe there is a right to lie, that is part of the freedom of speech that the court should but does not recognize. A good lie is a work of art, and the constitution protects art. Now can I find that fox news case? Ah, it's project censored, which is itself a lie about the news - project censored covers stories that aren't censored, just editing decisions. Akre v Fox. Reporter fired over Monsanto BGH story dispute.
See also Al Franken, Lies and the lying liars who tell them. Saw him once as part of Franken and Davis, at the blue note in Boulder, ages ago. "How to drive drunk" was the best part of that show.
Off to court today for a routine continuance.

In a test of google adwords, I have added google ads here.
The terms of use are pretty harsh - if i click on my own ad by accident that voids the agreement. they also wanted my mother's maiden name and a retinal scan.
the terms of use prohibit me from enticing you from clicking on the ads. so don't.
if the ads being there distracts from my wonderful prose, let me know.
no one reads this anyway. (well both of you do, but the generic no one.)

Google does it again:
google will put online public domain libraries of old books from stanford, harvard, a few other places, with a goal of a million books pretty darn soon.
infoexplosion. on the one hand, that means we are all rich now. anyone with a million books is rich. and somebody will figure a way put the million books into a breadbox sized thingy, and then smaller boxes. so our hypothetical grandchildren can come with a million books built in. then autonomous agents to read the books.
this is a big step toward the singularity.
there are already a billion people online. with each of them having access to a million books, that means whoever wants to can be a scholar. not everyone will want to; i come from a family where that is our calling. take a problem - fermat's theorem, how to build an ansible, turn two billion eyeballs on it, see what happens. the new answers will raise new questions. the rate of cultural evolution just took a big jump.

Lentil Loaf:

I agree with the sentiment and allegory to this post of wil wilkinson's at catallarchy.
Imagine you live in a town where you are required to pay several thousand dollars of taxes each year into a public fund that is used to buy food for the entire community. There is a publicly elected “Menu Board” that determines each year’s offerings. You wanted rye this year? Sorry! The Board voted for Wonder Bread. Again! You could, in principle, opt out of the public food system and buy rye, pumpernickel, or seven grain oat-nut crunch at a fancy private store. But you’ve already paid thousands in taxes, and can’t afford to pay twice for everything you eat. The Menu Board picks it. You eat it.

Imagine the controversy. Vegetarians (“You’ll get lentil loaf and like it!”) will lock horns with the Atkins lobby (“You can have my bacon when you pry it from my dead cold fingers!”) to wrest control of the Menu Board. The kosher set will fight against shrimp-lovers; Mormons will rail against the Starbucks crowd; Hindus will agitate against the forces of barbeque. …

The question we should be asking is not whether we should be worried about stickers on textbooks, but, rather, why we do education this way in the first place. We live in an incredibly diverse society, and there’s no way we’re all going to agree, even if some of us really are right about the best way to do things. Suppose you knew with absolute certainty that there was one objectively best diet. Would that justify forcing shrimp down unwilling throats? Why treat schools differently? …

But, let me talk for a minute (type for awhile) about what my experience has been.
When I was 17, I went off to college. Tuition less scholarship came to $4000 in carter-era dollars; some of that went to room and board. I was a national merit scholar but no award since dad had money. The first night, the cafeteria had three choices of main dish and a bunch of sides. You could get what you wanted, as much or as little as you wanted. And there was lentil loaf, it was the vegetarian selection that night. I don't think I'd ever had lentils before. Finally, I had options. I had the lentil loaf, and it was good. I've been a vegetarian ever since. I'd been philosophically vegetarian since I was 13 but unable to practice while living in an authoritarian home. I gained twenty pounds, which was good. I could eat till I was full, but more importantly I didn't have to eat what I didn't want.

In this case, the primitive communism of the dining hall was a big improvement over what I had had at home. Now I live by myself and have lentils whenever I choose. Cheap, yummy, easy to fix. I've never made lentil loaf.
if there's a moral to this story, it's that the options aren't always a) socialism
b) libertopia.
Sometimes socialism is a step up from some other form of tyranny.
Now Micha (who posted will's essay) and I both score 160/160 on the lib purity test.
I'm not against individualized instruction, far from it.
Sometimes the choice is not between kerry or badnarik; that's easy. Sometimes the choice is between kerry or bush. (this is a metaphor - of course i voted for badnarik. and his mom.)
Sometimes the choice is between the shah and the ayatollah.
So the questions don't always sort themselves neatly into socialism versus liberty.
Sometimes the more difficult puzzle is how to structure things so that liberty is one of the options. I don't have all this sorted out. I had a personal experience about lentil loaf that I wanted to share.

Rough notes from Raisch transcript:
all your rational base is belong...
twice so far the reporter has written rational for rationale.
amusing reference by scalia to the litter of the law.
it's snowing and windy which is my excuse to not go outside.
i have less of an excuse for not getting work done online except that by now it's a habit.
stevens:
are you sure?
barnette: yes [laughter]
stevens oh, you're right. you're right. ok, yeah yeah.
(from the solum notes, this part had been confusing.)
Reading this case motivated me to look through my files and see if I could find the envelope with a sample of homegrown medical marijuana, after having moved the files from room A to room B. Couldn't find it. Filing is not my strong suit. It's times like this that a drug sniffing dog would come in handy. It's been 7 months since I stopped using marijuana to controll my depression and anxiety it's also been 7 months that the depression has kept me from being able to work or cope. I'm feeling better but still have no motivation. I have what I've been learning to call autistic paralysis - going through the files just now brought up a lot of anxiety, and I'm all about avoiding anxiety, so I don't start doing the stuff I need to do. Including rescheduling a doctor's appointment to see if there are some meds that might help.

Must read:
Patrick Baude, Is There Independent Life in the Indiana Constitution? 62 Ind. L.J. 263.
Oh, or maybe not, it's from 1987.
When I was sworn in by Justice Shepard in 1993, he asked me to bring him state constitutional cases. I did,in Majors v Abell, in which he declined to reach the state law issue which was the heart of the case, and got the federal question wrong.

S ct. roundup via scotusblog.
Applying the 9th circuit overrule rule, the court, per curiam, determined qualified immunity applies to a cop who shoots an unarmed fleeing suspect in the back, in a summary reversal. The fact specific analysis does not change the qi standard of saucier v katz. stevens dissents saying there is a jury question; i'm inclined to agree.

Nixon v Florida correctly decided a guy had had effective counsel. This was a case that could have been resolved on state grounds by the state court. The most disturbing part of the case was that the defendant refused to participate because he was being set up - this turned out to be basicly true. On the other hand, the guy did set the fire that killed the lady. He had effective counsel. Did he have due process? I'm still not sure.

Alford was another 9th circuit overrule case. The new rule is an arresting officer can lie about why you are being arrested, and make something else up later, if the later reason is valid. Throw in qualified immunity, and this exonerates a lot of police abuse. Nixon and Alford were 8-zip.

Cooper Industries is a case about pollution remediation in the absense of a CERCLA claim (superfund). I haven't read it, to know whether it was just bad pleading or what. Cooper had no cercla claim so would have had to argue constructive trust or something innovative.

Kowalski was a 3rd party standing case, in which Michigan indigents who plead guilty are in a catch-22 and unable to appeal, and their clever lawyers don't get to appeal either. Possible moral: don't plead guilty? However, game theory suggests in the non-iterated case, pleading guilty is the least costly option for a falsely accused indigent person. It is the person who expects to continue to be falsely accused who has a motive to stand and fight, but this may be impossible for the indigent.
Screwed either way.
That's it for the court decision-wise till january.
This changes the odds of when Booker will hand down, call your Booker bookie if you want in on the pool. I want to go on record as not being a Fan-Fan fan. We were not fen-fen fen either. Fiawol.

In Troy Kunkle* v Texas, Stevens concurrs in denial of cert. Kunkle faces execution.
Stevens is doing something interesting - he's saying the guy is about to be wrongly executed, but used the wrong process. That is either a hint to try a new process, or is saying we'll let this guy be killed to show the system doesn't work.
Troy Ray Kunkle? Troy Lee Kunkle? Just plain Troy? Don't know.

Brad Pitt is still a hottie, but I couldn't buy him as achilles in Troy, which was the last movie I'd seen until Finding Neverland. I found finding to be only so-so. It could be a fun movie for those who don't already know the back-story of Peter Pan, and who like victorian costume drama. The kids are cute, Dustin Hoffman is very understated, supporting rather than stealing the movie. The dog gets the best lines.
Future post title - finding apprendi-land.
Attorney General v Raisch transcript here
http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html

This is huge. I reported here the other day that the Supreme Court had taken a Supermax case. What I didn't realize is they took The Supermax case - Youngstown Ohio.
This is a case that's been led by Ray Vasvari,a friend who runs the Ohio ACLU.
On the other side is CCA, corrections corporation of america.
CCA runs the domestic version of Abu Greibe (sp). It is the biggest private prison company in the country, and uses torture. I have friends currently being held captive by cca under unconstitutional conditions.
The non-disputed parts of the youngstown case were settled for 1.9 million.
If anyone knows of anyone working on amicus briefs in this case, please let me know.
gtbear at gmail dot com.

Three questions from crescatsententia, updated.
answers first questions below
1. Both.
E.g.: Majors v Abell (7th cir 2004) is legally wrong because it conflicts with Talley, McIntyre, McConnell, note 88, and a handful of other cases.
[it is easy to say a lower court opinion is legally wrong, more difficult, but fun, to say a supreme court opinion is wrong. many of them are, but what exactly do we mean by wrong? wrong in the barnette sense, the scalia sense, the living constitution sense, illogical, other?]
Majors is practically and morally wrong because censorship is the worst form of hate speech, and censorship of "Vote for Smith" undermines democracy.
2. The holding, which can usually be expressed in one sentence.
A curious example is Chaplinski, the fighting words case. It has never been overruled, but is never followed, so it is distinguished to death.
3. I was going to say no: stare decisis is a judicial habit, not a constitutional
matter. And separation of powers would allow them to ignore or construe congressional meddling with stare decisis. (In the event of a conflict between the court's formal rules of procedure and statutes, the rules govern. Stare decisis is an informal rule.)
In another sense though, stare decisis -is- the constitution, in that unwritten british sense I've never quite understood.*

1: When deciding whether a case was wrongly decided and how wrong, what kind of wrong should courts look to? Its legal wrongness or its practical-moral wrongness? Both? Neither?

2: What is it that's supposed to stand? The concrete results of a particular case, the rationale used by that court to reach that result, or any rationale that could reach that result?

3: Is the constraint of stare decisis a constitutional rule, and if so what part of the constition? (The judicial power?) Can Congressional statutes have any effect on the rule of stare decisis in constitutional cases? What about in statutory ones-- could Congress generically proclaim that stare decisis should never have controlling weight in statutory cases?

* The British constitution has something to do with the common law. Once upon a time,
Norse customs and folkways resolved disputes. The thing about customs and folkways is that they evolve; the villages that don't have a workable set go under, those that do may thrive. So for example the norse custom of a jury of 12 aldermen who could agree an accused was telling the truth, and must be set free, was part of the setting out of which the common law emerged.
Stare decisis is a method for conserving what has worked over time and been tested under fire. The brits refer to this body of law and lore as a constitution, as in the health of an organism.
In America, on the other hand, we'd tossed out the accumulated wisdom of the ages and replaced with products of legislatures, which are committees, the members of which are auctioned to the highest bidder in a biennial folk rite called an election.
The golden bough by frasier is an anthropological study of these rites of succession.
Unlike the time-tested common law, which is fairly libertarian because it had to be in order to be competitive, legislative law is arbitrary and capricious, a war of all against all. It is also unknowably complex, so law students are too busy studying the tax code to have time to take legal history, and most lack any grounding in anthropology or memetics, so they lack the big picture. Forest, trees.
The dim memory that we once had a common law is left to handful of aging jurists and scholars, and a bunch of rural bible-and-gun totin' folks who are not always the best and the brightest, but are better than city slickers at preserving vital traditions and folkways. They tend to be written off as neonazis.
It remains to be seen if the communications revolution and the net can revive the heritage of the common law for the layperson and for new generations of lawyers.
That's my rant for the day, now I need to go to the hardware store before it gets dark like yesterday and the day before.

update: i interpet baude's recent letter as the functional equivalent of a comment so i add it here. he is against comments, i am for them, i just haven't sorted out how to enable them here. Somewhere here I have a .php forum that is a spot for comments for blogs without comments, such as this or crescat or volokh or instapundit. but i don't write there or read it, and nor i assume does anyone else.
I am not groking in fullness what he means by legally wrong, but rather than rehash it i suggest he blog more or study or perhaps sleep.

To reformulate it: Most people think that a case shouldn't be overturned "just" because it
was wrongly decided on legal grounds. (There are exceptions; maybe
J.Thomas). Most people also think that a legally correct case shouldn't
overturned "just" because it's wrong on moral grounds. (There are
exceptions; I won't name names.)

So: We have three hypothetical cases. One is probably wrong on the law,
but it's a close call. It's a small stretch. But its consequences are
very very very bad for the world. Let's call this case Dole.** Another one
is completely doctrinally ridiculous, but it's not that bad for the world
at all. Let's call this one Legal Tender. The third case is pretty clearly
wrong (more clear than Dole, less than Legal Tender), and its consequences
are bad, but not devastatingly bad. Let's call this one Goldberg.

Which of these three cases, if any, should be overruled? In other words,
if a case has to be more than "just" wrong, if it has to reach a certain
threshhold on the wrongness scale, is that doctrinal or moral bankruptcy
we're talking about?

** Hypothetically, Dole.

via ms bond, a blog i'd missed.
http://blogs.law.harvard.edu/redandblue/

I am happy to report my tech guy stopped by, doubled the ram, upgraded the browser and security features, and suchlike.

As I said, I can quit any time I want, but not today.
4 new cases.
Grokster.
One on treaty enforcement and capital punishment, but the question presented is about deference to world court.
One on whether a takings claim can be raised in both state and federal court - the answer should be yes.
A supermax due process case.
Grokster presents an opportunity to have the Supreme Court cite Robert Heinlein's Stranger in a Strange Land as the source of "grok." Heinleinsociety.org.

i ordinarily don't click on onion stories.
but as baude sez, this one hits close to home.
http://www.theonion.com/opinion/index.php?issue=4049
i've been spending time lately obsessing on the supreme court,
time that could have spent cleaning the house (which i did today)
or looking for work (which i didn't) or on my internet pr0n habit
(if i had one.)
Maybe I have more reason than most. I have something like ADD,and college took me 12 years, because, since the third grade, i've had trouble getting my homework in on time.
my cert petition in majors was properly rejected by the supreme court clerk as filed a day late. something came up during the filing period that kept me out of the office for a month, and i didn't have an extra couple grand for one of those print and file your supreme court brief companies. i coulda been a contender. at some point i'm going to get back to it, and start some more cases up the pipeline. the overwhelming majority of cases that get appealed to the supreme court get rejected, but my case had a few things going for it, including a split panel, a split between the circuits,
a clearly erroneous decision, on a topic the court is very interested in right now.
i would have had a shot.
i'm a grown up. i can quit any time i want. i put it on hold for months while i thought about it. i do understand it's an expensive habit, and i'm going to need to get a job to support it. i can live with that.
but for now i'm off to check for updates at scotusblog.
if anyone out there is admitted to the supreme court bar, or the bar of any state, and might be interested in being cocounsel in one of my cases, let's talk.
gtbear at gmail dot com. without cocounsel in state x, i can't bring a case in state x, unless i do it pro se, which means no legal fees. the lack of cocounsel bottleneck
is why my project never got off the ground from a fiscal point of view. only doing cases in indiana doesn't provide enough volume to generate a revenue stream.
If i'd been working on 20 cases instead of three, the project might have been self-funding.

wsj
article about how it never occured to the pentagon they might have to fight a guerilla war in iraq. hello? the patriot. red dawn. lawrence of arabia. ewoks. platoon.
three amigos. link via drezner.

Kerikature. I picture this guy with a monocle. More and more the US in iraq reminds me of the turks in iraq circa 1917.

notes for a supreme court weekly roundup:

today: beef. likely winner: tribe, scotusbloggers.
and a good QI case about search and seizure.
yesterday: wine. likely winner www.ij.org.
kansas v colorado: winer, principal: KS (not k/s). winner, interest, CO.
monday: loser: masturbating cop.
last week: pot as commerce - to fond of barnett to be objective
no word yet:
booker
the case of the sniffing dog.
upcoming:
not sure. something about satanists. luckily these are just notes.

The Institute’s lead plaintiff in the case is Juanita Swedenburg, a Virginia winemaker and member of the Daughters of the American Revolution—an organization whose members can trace their ancestry back to those who fought for American independence during the Revolutionary War. Swedenburg traces her heritage back to Continental Army soldier James Whitaker. Swedenburg said, “Our country was founded as a nation that would have free trade between the states, but my small winery continues to run into a patchwork of laws that prevent me from selling my legal product to otherwise legal consumers. I hope the Supreme Court will restore my constitutional right to earn an honest livelihood. I hope the Court plays its important part as spelled out in our Constitution to stop this legislative abuse of power on behalf of the liquor cartels’ good-old-boy network.
This was not IJ's only case this year - IJ's castle coalition has an eminent domain abuse case on the way. Their win in the "got milk" case is on appeal but will likely follow the decision in the beef case. They have a casket case from oklahoma that probably won't get cert granted.

Finally finished the fafhrd and the grey mouser saga trilogy. it was written so long ago this sort of thing hadn't become cliche. hat tip froomkin.

don't click here. i'm just testing something that looks broken.ok fixed. thanks for not clicking.

as usual gina holland of AP is the first online with a story, and howard is the first to link to it. it's 3:30 here. i've been busy locking myself out while taking out the trash - new security-conscious roommate blocked my standard 'how to break into my own house' routine so i had to devise a new method.

smug:
hogan and harston has a case in the supreme court today, and their "news" webpage, http://www.hhlaw.com/site/news.aspx
doesn't bother to mention it. findlaw used to do a pretty good job of having briefs online. this seems to have declined lately. i don't know if that has anything to do with them being bought by west publishing.
found the briefs.
for the good guys it's scotusblog's goldstein (and how!) and lawrence tribe, and the guys from north dakota who did the oral argument today. about which i can't find liveblogging, because i don't know how to search the net that way.
apparently veneman is out so the case will be renamed, but we don't know to what. secretary of agriculture v livestock. moo.

My beef:

Today the Supreme Court hears a case on compelled speech by cow killers, to fund the "beef its what's for dinner" ads. The case will stand or fall on first amendment law grounds. I hope, of course, that the program is found unconstitutional. The government should not be taxing people to subsidize speech they oppose. The case could go either way.

This post is not about why the beef speech program is unconstitutional, just about why it is bad public policy. Some people think of government as like a rational and benevolent entity, fine-tuning the economy, helping the poor, keeping the peace and running justice systems that deter evildoers.
Others view government like a cancer, a remorseless remora, a parasite that sucks the lifeblood out of the economy, keeping people poor, always looking for a smaller weaker country to pick on, using its courts to oppress the citizens, especially ethnic and religious minorities.
Still others hold a more moderate view, seeing a possibility of keeping government craziness in check by a system of checks and balances, so that rational policies can be selected for at several levels, and irrational ones exposed and criticized by a free press and democratic process. My own view is some mix of the second and third aprroaches. Thinking out loud here, I hope to support this theory with the example of the 1985 Beef Act and the review of its constitutionality.

Beef. In most of the world, it's not what's for dinner. As Dan Drazner remarked recently, goat is more common than beef. Beef does well on lush plains with plenty of food and water. In more marginal areas, goats are more efficient, eating a wider variety of food. This is not a pro-goat post. Both animals, if raised in numbers in excess of the carrying capacity of the land, have the ability to turn prairie into desert. The sahara used to be a forest, before 5000 years of overgrazing.

Cows are doing to the american southwest what sheep did to britain. Sherwood forest is now sherwood lawn. (If you happen to go to sherwood forest, stop by Riber Castle - there's a nice zoo.) As usual, i'm drifting off into tangents, so I'll try bullet points.

A diet of beef lowers life expectancy from 100 to 50. A beef-heavy american diet
tends to cause heart disease, cancer, liver failure, gout, and acne. Throw in a tobacco habit and you can reasonably expect to die before your time. Beef kills people.

We live in a violent world. Last century, 100 million people were killed by governments, and at least a milion more by the private sector. The routine killing and mutilation of cattle desensitizes people towards violence.

Overgrazing in the southwest is literally the tragedy of the commons, turning prairie into desert. It's much worse than that, though. Much, perhaps most, beef eaten by North Americans is raised in Latin or South America in a process of slash and burn agriculture, in which jungle is cleared for pasture, which becomes desert,
so more jungle is cleared. Deforestation is causing global warming, disruption of the water cycle, disappearance of songbirds, and a wave of extinctions, both of species and of cultures, as indigenous peoples lose their homeland. Beef threatens homeland security. Beef is killing the planet.

Beef ads don't seek to inform consumers. It's all about brainwashing, not that there's anything wrong with a clean brain. Instead of respecting consumers as rational decisionmakers, the "what's for dinner" ads use emotional appeals of family togetherness. If consumers can be conditioned through propaganda to buy more beef, can they be conditioned to vote for a cowboy?

Beef act funds do little or nothing to help the small rancher. If demand increases,
production at the margin increases, as worse land is put into production or more cattle are crowded into feedlots. The ranchers are taxed and pass the bill on to consumers. The big agribusiness firms that do most of the processing and retail don't pay a dime, while the major media corporations like clear channel and abc/disney pocket the loot.

Do the companies that benefit return the favor by contributing or otherwise supporting those who vote for the act? I'll leave that issue to others. Maybe Ralph Nader would have some data.

A system in which the government manages economic decisions, while leaving ownership and profit in private hands, is neither fish nor foul, not capitalism, not socialism. There's a word for it, but it's not a nice word and this is a family blog. A family values blog.

Most of those who voted for the beef act are either Republicans, who tend to claim to support free enterprize, or Democrats, who claim to stand up for the little guy.
The beef act, which undermines the market economy and taxes the workingman's hamburger to subsidize a handful of powerful special interests, shows that our elected officials are hypocrits, but we knew that.

What else? Let's see, famine isn't what it used to be, but there are a still a billion hungry people out there. Grain fed to beef could be bread and tofu for the hungry. The beef act contributes to starvation among little children. If there are
a billion hungry people, and only 26% of them were children, that's still one for every american citizen. Repeal of the beef act would help starving children. Do it for the children.

Let me see if I can recap.
Beef kills. Beef kills people, especially white rich middleclass american men, by heart attacks, cancer, and liver failure. Beef kills children, by diverting cereal protein away from people and into animals. Beef kills the planet, through deforestation.
The beef act distorts the economy. It mostly benefits a small handful of powerful special interests, and doesn't benefit the rancher. It undermines the economic system, and by taxing "food" is regressive. It subsidizes violence against animals, a training ground for violence against humans.
Oh one more thing. Is it just me, or aren't those commercials really annoying?
That's what economists call a negative externality.

None of this really matters much to how the court will resolve the first amendment issue. Post-Lochner,the court tends to defer to congress when it comes to economic regulation that is arbitrary and capricious, wrongheaded, corrupt, stupid and evil.
The court will ponder whether the beef act involves the freedom of speech, and whether that freedom is abridged or infringed, and whether some government interest such as "we really really felt like it" lets them get away with it this time. Again.
There are good arguments on both sides. While I was writing this, oral argument took place.

Baude has some interesting ideas about statehood, and pun-ctuation.
Yes, there is a sanity clause, west virginia.
A short story:
My family goes to libraries the way some families to go the stadium.
In my hometown the library was downtown on Rodney Square, which is the one with
the statute of Ceasar Rodney on a horse, riding to Philadephia to cast the first vote for the Declaration of Independence. Or the constitution. Or something. I'm mixed up, because I remember it happening on Delaware Day, December 7th, possibly September 7th.
Jim Blaine's grandfather's ram.
So that state quarter, I think they did Delaware first, is of the statute. Not of the real guy, just of the statue. Because the real guy rode in a carriage - he was dying of cancer at the time and would have fallen off a horse; it just makes a better statue.
Now Delaware used to part of Pennsylvania, until the revolution, when it split off.
Delaware is three counties, two at high tide.
So it's like a small town with two senators. I only met Senator Roth once, but everybody knew his dog Max, a St. Bernard. I think the first time I wrote Senator Biden was in 72, and he had me over to his house in 75 when we were working on the Carter campaign.
The idea of Texas being able to split into 5 states has been part of the deal all along. Texas is big; I can drive from here to Texarkana and still be only halfway to where I'm going in Texas. But Baude's idea about splitting whyoming into 20 states to pack the senate - hmm. I'm going to guess that a majority of senators, R or D, would not go along. They would be voting to dilute their own power. Maybe if it were done slowly, the way you boil a frog.

Good news for Bacchus and Baccchus.

Bacchus is not just god of wine, but of wild and craziness, as opposed to apollonian puritanism. Teatotaling prohibitionists brought on an era of organized crime. I don't mean here the organized criminals who control state legislatures, but their less-offical counterparts. One version has it that the mafia is the government of sicily in exile from the war of the spanish succession in was that 1500 something. It at least looks like a government - protection rackets, vice rackets, sanctioned killings, turf disputes, these are the kind of things governments do. Wets orgnized and won repeal, but the 22nd Amendment had a few kinks that are still being worked out.
One of those is whether a state can ban out of state wine shipments.
Clint Bolick, my hero, founder of the Institute for Justice, www.ij.org argued the case before the supreme court, and is likely to win. The transcripts, once released, might make a good read.
The court looks like it will rely on the Bacchus case, although three dissenters in that case are on the court today. Bolick's agenda is not merely liberation of wine. He wants to liberate commerce, and have the court recognize privileges and immunities. I think in this case he will the battle but not the war. States will narrowly adjust their overregulation and move on.
But every time Clint can take a case to the Supreme Court and win, it helps the credibility of his organization. Recently he has semi-retired to Arizona and is doing something exciting ... setting up state chapters that advocate for economic liberty under state constitutions. That's a good trend.
There's the wine, now where's the beef? I though the Court was hearing the beef checkoff case today as well, but maybe that's later this week.
I interrupt this bulliten to go pull some steamed broccoli out of the pessure cooker -it smells done. That's "what's for dinner." Back when I watched TV, those commercials were annoying, only slighly offset by knowing James Garner has had a heart attack from eating too much beef. Moo.
Over at drezner's, goat is what's for dinner.

reading huck finn.

http://spaces.msn.com/members/aardvark/
msn has its new blog feature, so i set one up as a test. i'm not really thrilled.
boingboing has a story on which naughty words are and aren't available as blog names.
it's another msn v google war for market share. sometimes before msn has been able to use its dominance to provide a slightly less functional product that is more highly promoted and becomes a standard. usually this involves mimicing a leader, rather than breaking new ground. it's not a bad thing. somebody comes up with a cool new free service, microsoft feels threatened, offers cool new service, billions served.
competition from gmail resulted in hotmail getting fixes it needed.
previously the business model was "offer a broken product and charge for a fixed one",
now it's "offer the fixed product free to keep up with the jones."
Perhaps they will start handing out free windows 95 as a way of dealing with competition from linux.
Lower priced dsl/cable would be the next major transition from paid to free/cheap.
Not saying that will happen, but it would be a logical progression of ubiquitous computing too cheap to meter. Maybe fiber optic to wireless urban zones, driven by local ad revenue. Maybe not. In the meantime, my 3 months at $20/mo are about up, so i'll either do nothing and pay $50/mo or switch to another. It's worth every penny of the $2/day, but i'm on a constant quest to cut my overhead to zero or close.
Little details like not heating the downstairs, not having a cellphone, or a secretary, or living in a decent neighborhood.

# ome of Intelliseek's findings from political blog data since August and up until a week before the election: Top Blogs: Matt Drudge's Drudge Report has been cited nearly 7,800 times in blogs, followed by DailyKos (7,700), Instapundit (6,900), Powerline (5,500), Atrios (5,500), and Talking Points Memo (5,500). Presidentially speaking, Sen. John Kerry's blog (1,616 links) ranked 22nd among the top 100 political blogs: President George Bush's blog (581 links) ranked 50th. chart

http://spaces.msn.com/members/aardvark

kivas on the moon.
http://www.calearth.org/lunar.htm

ginger's adventures in langley.

A titantic solution to space flight:
Here is an article in wired by james cameron, who made titanic for $100 million.
He says he made the picture to have an excuse to go deep sea diving, and his real interest is space. He understands that government space projects are kludges, black holes into which dollars flow, but that the private sector is the reverse.
Rutan went into space to win a $10 million prize; it cost his backer about $20 million.
Here's what I'm picturing. Cameron could make a movie - actually a trilogy - about going to the moon. Movie 1 is like a documentary, it's the idea of doing it, explained.
Movie two uses miniturized robots - and actually goes to the moon. Maybe something like the mars rover but cuter. Movie 3, real or faked, people follow after.
I'm assuming a few things - just assumptions, but I think they would check out.
1) He can get funding to make a $100 million movie, 3 times.
2) Each movie would gross $100 million or more, so no net loss; project is self-funding.
3) For 100 million, planned over time, he can actually send a robotic minaturized moon mission which makes video and sends it back. The robot has best available personality mimicry software... it's likeable.
4) Whether a womanned mission can be sent on that kind of a budget depends largely
on how movie 2 goes, how many years this project takes, how technology develops -
the movie can be made, but it might have to be faked in parts.
5) The project is it's own gimmick - by actually going to the moon, it would generate so much press millions of people would go see it. I remember appollo as some of the best theatre from the 60s.
6) plenty of tie-ins and spinoffs. corporate sponsors, actors paying to be in it, product placement.

Monkey embryos cloned. Wil Wheaton orders 46,000.
They did not not take in the host mother monkeys. One line in the story got my attention. The monkey embryos were produced by the same technique that had been used in making human embryos in south korea... I'd missed confirmation of that story.
I don't watch TV or read a paper, so if if doesn't make the blogs I miss it.
So lets see.. cloned monkeys with chips in their heads, in space.... yeah i think the future's just about here.

ru paul has a blog, if you weren't getting enough tall black queer conspiracy theory.

Has it never, ever occurred to you that not using a condom is tantamount
to murder? I cannot believe you have never considered this. It is such a
simple and intelligent thought to have. And we all should have had it from
day one. Why didn't we? That has been haunting me for a while, that
question. Why didn't we? It is incredibly selfish not to have at least
thought that question at that moment, all those moments when we were
playing Russian roulette.
i will post the second part of this LARRY KRAMER speech tomorrow.
posted @ 11:36 AM
Thursday, November 04, 2004
i have nothing to say.

No gag order after all for Matthew Shepard's killers?
shepard A close look at the lifetime gag order designed to keep one of Matthew Shepard's killers, Aaron McKinney, from speaking to the press, seems to show that while the original trial judge, Barton Voigt, did intend to give the order, somehow it was never written into McKinney's official plea agreement. The prosecuting attorney in the case says he doesn’t know how it got left out. McKinney and the other murderer, Russell Henderson, spoke to the ABC news magazine 20/20 last month, triggering a hail of criticism and allegations that McKinney violated the agreement that kept him from being put to death for the vicious 1998 slaying.
Cheyenne Tribune-Eagle, Editor & Publisher

why would somebody jailed for life be ordered not to discuss their case? seems open to abuse.

A new study shows that more than 50 percent of HIV-negative gay men who live in four large US cities may be infected with human papilloma virus (HPV); some strains of HPV can cause precancerous lesions and anal cancer www.queerday.com
This is just the most recent indication that this disease is very widespread compared to the amount of discussion it gets. What's the test; how expensive and convenient is it?

Don't ask don't tell is a stupid evil policy.
I don't think the lawsuit against it will go anywhere, and filing it in Massachusetts is maybe not a real good idea.

Applying the 9th circuit reversal rule, the court today unanimously reversed the 9th circuit in a case that wasn't even final. I wonder two things - will the case of the masturbating cop be good for sales, offsetting the income he lost from not being a cop anymore? Does this case have anything to say about Soloman?
For bonus points, compare and contrast this case to the one where the police dispatcher criticized Reagan, was fired, and got her job back through the courts.
update from scotusblog: they didn't even accept briefs or have argument.

Although denials of cert are mostly non-stories, I'll mention that the Supreme Court denied cert in the new york AKKKK case, failing to resolve a split between the circuits on whether there is a right to anonymous protest. AKKKK v Goshen, as far as I know, is not online. NDist.In 2000, I think. There was an anti-mask case in florida recently as well.

MIT kills brain cells, forbes reports.

Well the Becker-Posner blog is off to a good start. www.becker-posnerblog.com. 4 million blogs... a good reminder how pointless this one is. The idea of updating weekly is a good one. Or rather the idea of announcing they will be updating weekly is a good one; it cues people in on what to expect. This blog gets updated anywhere from a few times a day to once a month. Buncha suckups in the comments, like the guy who made it his homepage.
Is Posner right that judicial ethics prohibit him from endorsing candidates, after Mn GOP v White? I'm not suggesting he would want to. I'm wondering a) minor premise: whether judicial ethics prevent a judge from endorsing candidates b) major premise:
whether Posner is wrong about this, suggesting he doesn't get the first amendment, or lying, which is an odd thing to do while discussing ethics. Perhaps it matters that he is an appointed federal judge rather than one who runs for office. Maybe it's a close enough question he's allowed to be wrong, if he's wrong. Maybe he's right. I suppose I shouldn't expect infallibility - if I don't know, why should he? Until a few years ago, his answer would have been right (descriptively if not normatively.)
Posner comes to blogging with tons of reputation capital as an author, professor, and judge. It'll be interesting to see if he ends up known to history primarily as a blogger.
Preventive, or preventative?
Intended or used to prevent or hinder; acting as an obstacle: preventive measures.
Intended or used to prevent or hinder; acting as an obstacle: preventive measures.
Variant of preventive.
Dictionary.com gives them the same definition, so might as well use the shorter one.
Advocates of laissez-faire economic policies often make the argument that it is not enough to call some state of affairs “market failure” and propose a state solution; the intended solution may make the state of affairs worse. “Government failure” often aggravates “market failure".
Catallarchy discussing Becker. Nice to hear someone else saying that. I obviously like catallarchy for its libertarianess (is that a word?) I should keep an eye out for how it handles ecological and gender issues; these are sometimes weaknesses of that sort of outlook.
Update: crooked timber thinks it's all a hoax. funny.

Satanist case before Supreme Court?
Howard reports:

A Georgia prison inmate has won an important court ruling in his bid to wear a yarmulke at all times and be served kosher food....
the federal appeals court in Cincinnati has found the law unconstitutional. That case, brought by inmates who observe polytheistic religions and who declare themselves Satanists, was recently accepted for review by the U.S. Supreme Court.
(note to self: look into this further - i have a potential case about a vegan prisoner.)

via howard, the supreme court will be hearing a case in its original jurisdiction,
united states v alaska, about ownership of some seabed. this is a case that goes directly to the supreme court rather than an appeal from a lower court. these are rare.
the wine and beef cases are this week. www.ij.org probably has the scoop.

Building a better mouse department:
This guy says the first person to live to be 1000 may be 60 now.
Since I'm 44, that sounds about right.
His day job is he makes mice live longer.

Back in the 80's I met my first extropians. Before that, we'd called ourselves futurists. The extropians had five related memes: intelligence enhancement,
neutropics, life extension, ungoverned markets, space. The 6th one was memetics, the idea of memes themselves.
Twenty years later, where do we stand?

"Everybody" has a cell phone with a camera, and a computer with google, so we are wired together in social networks that in the 80's were limited to a few early adopters. By everybody I mean about a billion people, 1 out of 6. So "computers" haven't gotten that much smarter themselves, so much as networking human intelligence better. Today's $350 computer is a supercomputer by 1980 standards,
but we aren't mostly using it for rocket science; it's stuff we used to do with tools like televisions, voice mail, videogames. Some are doing rocket science.

Neutropics, chemicals for better brain function, haven't come to much yet for the healthy person. On the other hand, a lot of mentally ill people now have drugs that help them that weren't around in the 80s.
Markets in everything. The typical voter, D or R, remains hostile to markets, but
academia less so now, as markets transform Asia and Europe. The former soviet states do not seem to be embracing markets in the way that China has.

Private space travel is no longer if but when. The dot.com boom and bust created a lot of wealth for nerds who are taking their backyard model rockets to new heights.
The meme meme is more widespread, if still misunderstood.

So all in all the extropian vision is being vindicated - technological change did result in restructing of the ecomony and of society, and our ideas have spread from the few to the many. But most americans still live in redstateistan, where cloning, gay families, new ideas, are threatening. Haiti and Russia are models where traditional societies are collapsing into violence ignorance and squalor. Our inner cities are Haiti, our suburbs are Russia. Austrian economics holds that the markets are a wave of creative destruction, transforming society again and again. One outcome is that wealth doubles every 15 or 20 years, outside of the war zones.

But the stress is tearing apart families and the existing social order, which adapts more slowly. As the singularity approaches, and changes pile upon changes, the social order will be more and more stressed. My situation is not unique. While I am poor by middle class american standards, I am rich by world standards. But I am alone in my room, cut off from any community other than my online friends. That's partly about me - I am mildly autistic or something, and have always had trouble fitting in or making connections with people. But it's partly about a breakdown in social order - more and more people live alone in apart-ments, and wind up institutionalized in old folks homes alone at taxpayer expense, instead of being valued tribal elders.
I woke up at 5:30 am, as happens most days lately, so now I will try again to get back to sleep.

76 trombones
amanda butler at crescat continues to write movingly and thoughtfully about her life in the peace corp in
kazakhstan. young people don't have jobs, school clubs, or much in the way of independent entrepreneurialism. meanwhile the schools are corrupt.
she suggests school bands, model UN, that sort of thing. in my 3 years of high school,
i was a B student, but an activities geek. i got my first kiss in model UN,
was active in scouts, chess club, bridge club, everything except sports or band,
which required musical or athletic ability.
A society that doesn't have that has a social vacuum, open to religious cults, political movements, punk rock, anything that would provide a cause and a sense of belonging to something meaningful. or that's how it is here - maybe kazakh family and social structures are complete in some way we aren't seeing.
The internet, with its open source revolution, and islamofanaticism, are two possible directions. If there is a social vaccuum, a charismatic leader can be a catalyst. Harold Hill, Lyndon Johnson as a new deal adminstrator in Texas, there's no shortage of such guys. The cautionary tale comes when you look at Gary today, and compare it to Gary before Hill came along. Industrialization brought immigration that wiped out the traditional culture. I have no answers, only concerns.
In my culture, Horatio Alger stories were common and believable. One grandfather was a farm kid who got into oil and left an estate worth a million, while my other grandfather was farm kid who was first in his class at la sorbonne and became a department chair. It was just sort of taken for granted that us kids would go on to do great things. I'm the black sheep, and I'm a doctor (juris) and a lawyer, even if broke and crazy. In a society as corrupt as Amanda paints Kazakhstan, a little ruthlessness helps - see Joe Kennedy, LBJ. But in each case they had family drama that produced that ruthlessness. With a history of stalinism, the kazakhs probably have plenty of drama like that. Can an ethical but motivated kid make it there?
I would say yes; it sounds there are tons of opportunites for commerce, and enough oil to fund bootstrapped development. What then would provide the motivation?
Or how to those with the motivation connect to those with the knowhow?
Ah, junior achievement, maybe that's it.
Or, it sounds like the girls aren't getting to college - maybe free online schooling is the answer. I dunno. Today, no answers, only questions.

HIGH COURT HEARS ARGUMENT ON REGULATION OF HIGH-SPEED INTERNET CABLE SERVICE...
Tense error in drudge headline. Developing...

scotus set to aply 9th circuit overrule rule in broadband cable case.
i think this is the 3rd month of my 19.95/mo deal, so time to switch carriers again.

mosh remix by m&m.

http://www.sinfest.net/d/20041202.html

Other people are not your property
I saw that as a link at www.rdrop.com, clicked, and wound up at rod long's blog.
you may remember him from such blogs as liberty and power.

word for the day: Hikikomori

Placeholder for another rant on the singularity.
Naked singularity page had cute stickfigure pr0n,
buit black holes weren't the sort of singularity I meant.

Howard reports, distorts.
"Gay book ban goal of state lawmaker": This article appears today in The Birmingham News. ok, that was the title.
More From The Birmingham News | Subscribe To The Birmingham News
Gay book ban goal of state lawmaker
Wednesday, December 01, 2004
KIM CHANDLER
News staff writer

MONTGOMERY - An Alabama lawmaker who sought to ban gay marriages now wants to ban novels with gay characters from public libraries, including university libraries.

A bill by Rep. Gerald Allen, R-Cottondale, would prohibit the use of public funds for "the purchase of textbooks or library materials that recognize or promote homosexuality as
an acceptable lifestyle." Allen said he filed the bill to protect children from the "homosexual agenda."

This article gets it wrong. Howard's blurb tracks the article.
To "fail to subsidize" is not the same thing as "to ban."

Dumb idea? Sure? Constitutionally problematical? Maybe. But not a ban.
Writing as a queer lawyer who is something of a first amendment purist,
I do not think ban is the right word here, and is defamatory, if an alabama legislator has any reputation capital in the first place.
The Soloman case is about the nuances of the line between these two areas.
But I am adamant that failing to fund is not a ban, for the same reasons the Censorship Project isn't about censorship.

Grue and bleen
are obscure philosophy terms I don't care to explain just now.
But I found it interesting that the pink bunny of battle is now a blue bunny,
after 11/2/04.

Aids day from jasperboy.
On 9/11/2001 3000 people died in the two towers bombing, and 7000 americans died of aids. On 9/12/01, 7000 americans died of aids. on 9/13/2001....
The french are testing a vaccine so hiv+ people can live longer, perhaps infecting more people. My recent test results, a side effect of a study i didn't qualify for, remain negative, perhaps because i don't have a sex life at the moment, or because i am very very careful, or because my tastes are so deviant they don't involve fluid exchange.

Simple solutions department:
California has a budget crisis. Most states have a budget crisis, after the economy tanked due to hysterial reactions to 9-11.
California would also prefer its medical marijuana smokers were left alone by the feds.
Simple solution: until such time as the feds agree to leave California's medical marijuana users alone, California can stop enforcement of all pot laws, leaving this function to the federal government. This eliminates unneeded duplication of government programs, and saves California taxpayers money. It doesn't condone drug use, simply recognizes that that state function has been federalized.
Meanwhile it can redeploy scarce resources to address violence against women, which the court has said is not under federal commerce jurisdiction.

It's not just California at issue. Alabama has no medipot program, but has a strong tradition of state's rights, and a number of urgent budget woes. Letting the feds handle any pot prosecutions would free up resources and send a message. Indiana has a new budget-cutting governor and overcrowded jails that aren't up to constitutional standards. Allowing the feds to pick up the tab for pot prosecutions would free up resources for other priorities, like hassling adult bookstores and gay men in parks, or stadium construction, or a bail fund for jailed athletes, or whatever.

Maybe somebody more motivated and better connected than I am could draft a sample resolution or bill. Maybe this is a policy that can be implemented by sheriffs or attorneys general or executive order. Enough of this sort of thing, and the feds will be too busy hassling recreation users to be able to after as many cancer patients.