Opinion Work Product

Better Late . . .

2006-07-23T12:15:00.000-04:00

A couple months late, I have an entry for the funny billboard contest. Welcome to South Africa!

Why so few minority Supreme Court clerks?

2006-05-27T14:09:00.000-04:00

The Empirical Legal Studies blog links to a Legal Times story with a discussion.

Wittgenstein in love: Tegan and Sara

2006-05-27T08:28:00.000-04:00

I'm sometimes amazed at how varied the sound of the Indigo Girls is--they really succeed, and sometimes succeed astoundingly, in a lot of genres. But if you want to broaden that sound, keeping the similar pervasive minor-third female harmonies but exploring a bit more musical territory, you may want to check out Tegan and Sara. Not only are their songs tremendously catchy, but they frequently link up lyrics and music in elegant ways. Below the fold are the words to one of my favorite of their songs, "Where does the good go?" It questions, in an almost Wittgensteinian manner, what remains when you and I are subtracted from us, and how vulnerable that remainder is. (Admittedly, to really see the Wittgenstein, you have to have read his Philosophical Explanations description of an arm movement as human action, and also be thinking a lot about an old ex-girlfriend, and listen to the song about ten times in a row...but it's there. Trust me.)

where do you go
with your broken heart in tow
what do you do
with the left over you

and how do you know
when to let go
where does the good go
where does the good go?

look me in the eye
and tell me you don't find me attractive
look me in the heart
and tell me you won't go
look me in the eye
and promise no love is like our love
look me in the heart
and unbreak broken it won't happen

it's love that leaves and breaks the seal
of always thinking you would be real happy
and healthy, strong and whole
where does the good go
where does the good go?

where do you go
when you're in love
and the world knows

how do you live
so happily
while i am sad
and broken down

what do you say
it's up for grabs
now that you're on your way down
where does the good go
where does the good go?

Which are better, California or French cabernets?

2006-05-27T08:25:00.000-04:00

A blind taste test pisses off many.

"The Orphan Feast": Ascension

2006-05-27T08:23:00.000-04:00

Great post over at Commonweal about the Feast of the Ascension.

Akhil Amar writes on the Jefferson papers raid

2006-05-27T08:14:00.000-04:00

In Slate, Amar finds it unlikely JJ will get much relief from the constitution. On this theory, U.S. v. Johnson, discussed previously, must truly be an outlier.

"I crave the law...I stay here upon my bond": von Jhering and Rober Cover

2006-05-26T20:57:00.000-04:00

Law, which in the field of self-interest is prose, becomes in the field of idealism poetry; for the struggle for law, the battle for one's legal rights, is the poetry of character.
Von Jhering, The Struggle for Law, III

Von Jhering in The Struggle for Law praises "the devotedness and energy in the assertion of legal right," the bubbling vitality of each individual that supports the state from within, like the Turgor pressure of each cell that gives a plant stem its stiffness, or the colliding molecules that force a gas outwards by pressure, keeping the gas from collapse.

But why do people fight for their rights?--why do they fight not only when they are likely to win, but even when what has been lost is likely small compared to the cost of the fight? Why struggle even when struggling is against your immediate self-interest?

What is it, then, that works this wonder? Not knowledge, not education, but simply the feeling of pain. Pain is the cry of distress, the call for help of imperilled nature. This is true, as I have already remarked, both of the moral and the physical organism; and what the pathology of the human organism is to the physician, the pathology of the feeling of legal right is to the jurist and the philosopher in the sphere of law; or, rather, it is what it should be to them, for it would be wrong to say that it is such to them already. In it, in truth, lies the whole secret of the law. The pain which a person experiences when his legal rights are violated, is the spontaneous, instinctive admission, wrung from him by force, of what the law is to him as an individual, in the first place, and then of what it is to human society. In this one moment, and in the form of an emotion, of direct feeling, we see more of the real meaning and nature of the law than during long years of undisturbed enjoyment. The man who has not experienced this pain himself, or observed it in others, knows nothing of what the law is, even if he had committed the whole corpus juris to memory.

This assertion of legal right as a call of the pain of one's imperilled nature--the victim's cry for vindication--is the converse of Robert Cover's Violence and the Word, 95 Yale L.J. 1601, the law's cry for retribution:

Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. This much is obvious, though the growing literature that argues for thecentrality of interpretive practices in law blithely ignores it.

Taken by itself, the word "interpretation" may be misleading. "Interpretation" suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. Indeed, pain and death destroy the world that "interpretation" calls up. That one's ability to construct interpersonal realities is destroyed by death is obvious, but in this case, what is true of death is true of pain also, for pain destroys, among other things, language itself. Elaine Scarry's brilliant analysis of pain makes this point:
For the person, in pain, so incontestably and unnegotiably present is it that "having pain" may come to be thought of as the most vibrant example of what it is to "have certainty," while for the other person it is so elusive that hearing about pain may exist as the primary model of what it is "to have doubt." Thus pain comes unshareably into our midst as at once that which cannot be denied and that which cannot be confirmed. Whatever pain achieves, it achieves in part through its unshareability, and it ensures this unshareability in part through its resistance to language . . . Prolonged pain does not simply resist language but actively destroys it, bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned.

The wounded feeling of legal right indeed craves the law, as Shylock says; but the law is not merely analogy, it is a physical, bloody pound of flesh, and is thus a wound as well. If indeed God decrees that every crime must be repaid by blood, it can only be said that the judgments of the Lord are true and righteous altogether. But for those who must actually translate the victim's cry into the criminal's cry, truth and righteousness will always be viewed through a mirror, darkly, until the end of days.

Economy in year you graduate strongly effects your income for life

2006-05-26T10:17:00.000-04:00

From Marginal Revolution (surely the fastest moving blog on the net), I note Austan Goolsbee's new NYTimes article: the economic conditions at the time of your graduation from college have a huge impact on your life earning potential, and those who graduate in the middle of a recession never catch up to those who finish school five years later but during a healthy economy.

This probably doesn't apply to my college graduation---or even my graduate school graduation---since I've jumped ship to try out law school. Now, what matters are the economic conditions in the spring of 2008. Anybody know what the history of end-of-presidential-term economies is? Where are we on the Kitchen and Juglar cycles? If I'm going to buy Mrs. Strasburg that huge diamond ring I know it'll take to overcome women's natural aversion to my very person, I'm going to need boom times.

"You think you're radical, but you're not so radical": new albums from The Flaming Lips, Paul Simon, Tool, The Raconteurs, The Fray, etc.

2006-05-25T20:08:00.000-04:00

Paul Simon: "Surprise," a collaboration with Brian Eno. No longer doing world music, it now seems he's using "found sounds," odd coaxings from instruments and objects, backing up Simon's trademark ability to use his smooth voice to pass off anything as a melody, something random you'll find yourself humming an hour later, wondering why it doesn't sound as good as the original. This isn't an immediately attractive album, like "Graceland," "Rhythm," or "You're the One," but I think it'll grow on me.

The Walkmen: "A Hundred Miles Off" continues their strange mixture of circus music and screaming, with emptied-out grating guitars with the reverb pedal set to 11. I love these guys: saw them live once at the 930 club in DC, and I thought the lead singer was going to burst a vein or explode the front row's eardrums. "Hundred" doesn't seem as loud as "Bows and Arrows." We'll see.

The Flaming Lips: with every album they sound more---maybe that's just me---like Yes. And late Yes. "You think you're radical, but you're not so radical." Anyway, "At War With the Mystics" is pretty good, and not obnoxious usually. But what's up with releasing a cd explaining your cd? How cocky do you have to be to believe that anyone will actually listen to Mystics Explained? Explain the goddamn pink robots to me. I'm still waiting for that.

Phoenix: French popsters. Hugely infectious tunes. They get my butt bouncing in my seat. An Iberian New Pornographers. "It's Never Been Like That."

Angels and Airwaves: new project of ex-blink-182 member. "We Don't Need to Whisper." Like Vangelis but harder hitting. Stadium rock even the Promise Keepers would love. Very odd.

The Wreckers: why not either go back to some real twang, and listen to some old Hank Williams (Sr.), or go all the way, and drop the conventions of New Country? If you stick with the format, you'd better have some stunning melodies, like Garth Brooks, or be able to discuss the limitations from within, like Dwight Yoakam. I'm not hearing it here.

The Subways: straight-ahead Brit-Punk. Good. Describing "Young for Eternity," the lead singer noted, "We really wanted to create an emotional journey with this record." This scares me a little.

As Fast As: "Open Letter to the Damned." These are instant classics. Each one is a rock radio hit, and they certainly exceed a mere assembly of influences.

Keane: new single, "Is It Any Wonder?" No longer avoiding guitars, they go a bit overboard here. The wa-wa guitar sound is hard to work in with the lead singer's plaintive boyish requests for love, which is why the two never occur at the same time, leading to a pretty disjointed song. Go back to piano.

The Fray: good, solid, adult alternative. Good piano. Nice. Just enough character to avoid getting a frowney-face from me. "How to Save a Life."

The Raconteurs: Yay! Slightly more organized and filled-out White Stripes--complete with Jack White. "Broken Toy Soldier" is a good shift from pure garage rock. There's a tiny bit of power pop: "Together" is a great track, and could be from Cheap Trick.

Janita: Finnish soul singer. Anything I didn't mention? Oh: a cover of Depeche Mode's "Enjoy the Silence." Really cool. Reminds me of Jill Scott of The Roots fame, both in her voice and how oddly hot she is. "Seasons of Life."

Pearl Jam: after a long gap, they're back with a new, higher energy album with some of the rawness of "Ten" and "Vs." But what's up with self-titling late albums, as some sort of "wow, we really understand ourselves now" or "time for a new beginning!" move? Was Blur's "Blur" really more blurry than previous Blur? Are they claiming the hallowed mantle of campy self-ignorant self-awareness, worn by Cheap Trick, Duran Duran, Toto and blink-182? Are they a band that actually will succeed in renovating itself with a later eponymous album, like Supergrass or Broken Social Scene? Are they a band hoping to be taken seriously again with a final gasp, like The Cure? Shouldn't they have gone for a funny, biting self-titled title like REM's "eponymous" or Grandaddy's "The Sophtware Slump"? Come on, Pearl Jam. Call it "11" or something. Oh, sorry: the music is great. Especially "Parachutes" and "Come Back."

Snow Patrol: "Eyes Open" too slow. Sorry. :(

the twilight singers: "Powder Burns." From Greg Dulli of the Afghan Wigs. I don't know the Wigs much; but this album controls the horizontal, and it controls the vertical. Heavy hitting melodies set in deep oceans of atmosphere. Occasional entrance of transylvanian strings and midnight-in-the-garden-of-good-and-evil piano. His voice slides a bit much for me, and is a bit nasal; but, hey, my favorite singer is Geddy Lee, so I can get used to anything. This album is like Iron & Wine, but plugged in, and with a backbone. (Not really, but kind of.)

Slaid Cleaves: why do I dislike Jack Johnson so much but like Slaid? I guess JJ seems like pure adult alternative, with nothing but a miserable singer-songwriter existence, characterless and without context, no history to keep him from writing the Curious George soundtrack. Slaid Cleaves, with more albums to his name ("Unsung" is his new one) has an alt-country legitimacy, a slight lilt in his voice, a hint of roughness, and some strange ability to flesh out his guitar and piano foundation with just the right hints of slide guitar and synths. A bit like Ryan Adams on prescription medication.

Figurines: Norwegian crazy people. "Skeleton" is their debut, I believe. Indie rock. Piano and squeaky voice, then punk strums and grunting. Unique. Almost enjoyable. Could be brilliant; not sure. DNA tests will prove The Figurines are Radiohead and Interpol and Sigur Ros's three-way lovechild.

Saint Etienne:
The Streets:
The Constantines:
Sunset Rubdown: reviews to come!

Constitutional Interpretation and the raid on Rep. Jefferson's papers

2006-05-25T11:52:00.000-04:00

[See - previous - posts.] [Boehner states this will likely end up at the Supreme Court.] [Post discusses context of FBI corruption probes.]

In Gravel, a Rep who opposed the Vietnam war entered the Pentagon Papers into a committe report, for which his aide was subpoenaed. Just like yesterday's House demand for Jefferson's papers back, in March, 1972 the Senate adopted Senate Resolution 280, submitting an amicus curiae brief to the Supreme Court demanding the executive back off. The Court, however, held that his aide had the same protection as Rep. Gravel; but Gravel himself had little protection. While the Rep couldn't be questioned for anything actually said in a hearing or on the floor, he could be questioned about everything except that, including how he got the Papers, who he got them from, what he did with them, deliberations leading up to the speech, staff discussions, and so forth.

In Brewster, a Rep was charged with soliciting and accepted a bribe from a mail-order company in exchange for a beneficial vote on postal rates. The Court held that the only action of Brewster's that was actually protected was his physical vote-casting. If you can prove bribery without relying on Brewster's vote (whether the two are intertwined or not--see Johnson), you can nab him.

The key holding in Gravel and Brewster is that the Speech or Debate Clause is held to protect "legislative activity," and legislative activity is held to only be actually speaking on the floor or voting there. Chief Justice Parsons in his Gravel dissent summarized the previous judicial holding of Coffin v. Coffin: "legislative activity" is

everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.

So the majority took a formalist approach (looking at the terms of the Speech or Debate Clause in isolation, and then deciding if this is speech or debate), and the dissent took a functionalist approach (the historical and structural purpose of the Speech or Debate Clause is to protect legislators from harrassment).

Another example of these two approaches is Commerce Clause theory: a formalist would first try to determine what commerce is; a functionalist would ask what the Clause's purpose is. In this example you can get either result with either method: a functionalist trying to limit the CC would say the historical purpose was to keep the states from erecting trade barriers; a formalist trying to limit the CC would say commerce is trading merchandise; a functionalist trying to expand the CC would say the purpose is an Amar-like "spillover" test; a formalist would say that commerce is "anything." Similarly for the term limits cases, and campaign finance jurisprudence.

In the same way, here I think you can use functionalism and formalism to get either a pro- or anti-Jefferson result. But I think that functionalism trends in an anti-Brewster (and so pro-Jefferson) direction, while formalism is neutral. Clearly the functionalists have the better argument that a broad legislative protection is more appropriate than a mere on-the-floor privilege. And historically the formalists have a case that speech and debate included more than just actions on the floor. (See White's dissent in Brewster.)

----------
Maybe, though, you need to look at more than one text to discover the underlying structural considerations and avoid a mess. Consider the following doctrinal goulash:

This Court has generally been quite sparing in its recognition of claims to absolute official immunity. One species of such legal protection is beyond challenge: the legislative immunity created by the Speech or Debate Clause, U.S. Const., Art. I, § 6, cl. 1. Even here, however, the Court has been careful not to extend the scope of the protection further than its purposes require. See, e. g., Gravel v. United States, 408 U.S. 606, 622-627 (1972); see also Hutchinson v. Proxmire, 443 U.S. 111, 123-133 (1979); Doe v. McMillan, 412 U.S. 306 (1973); United States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 [**543] (1966); Kilbourn v. Thompson, 103 U.S. 168 (1881). Furthermore, on facts analogous to those in the case before us, the Court indicated that a United States Congressman would not be entitled to absolute immunity, in a sex-discrimination suit filed by a personal aide whom he had fired, unless such immunity was afforded by the Speech or Debate Clause. Davis v. Passman, 442 U.S. 228, 246 (1979); see also id., at 246, n. 25 (reserving question of qualified immunity).

This is from Forrester v. White, 484 U.S. 219 (1988). Against this vapidity ("we have been careful, blah blah"), one might try to set up an Amar-like intratextualism, finding balancing texts in the constitution that give some indication of an overarching structure. Here, it's pretty simple: juxtapose the Expulsion Clause with the Speech or Debate Clause, and it would seem that the constitution has already made a choice in these matters. The responsibility for disciplining congressional members for bribery is on congress itself, through their expulsion power; this is broadly preserved away from the executive by their priviliege of speech and debate.

----------
If you are against independent counsels, where quasi-executive canines hunt the president, should you be against the executive's power to question congressmen's actions? If you're afraid of an investigation having no natural internal limits (the president firing his attorney general, or congress ending hearings), and you're afraid of cross-branch investigations (special counsels under the control of another branch), shouldn't you then want to draw the Speech or Debate Clause protection broadly, even broadly enough to encompass possible crimes? Why should the possibility of an uninvestigatable crime matter more in construing the Speech or Debate Clause than it does when we refuse to tolerate leashless independent counsels?

----------
Interestingly, if we return from Brewster (1973) to Johnson (1966), it's likely that a fair bit of Buckley(1976)-esque campaign finance legislation goes out the window. The appearance of impropriety will be hard to punish if being improperly boondoggly is the main job of a legislator. (This is explicitly discussed by White in his Brewster dissent.) If you're like me, you'll think the loss of Buckley is a mixed bag, but more blessing than curse.

----------
Why do we believe that there is an executive privilege for secrecy, which is not even in the constitution, when we narrowly construe the speech and debate privilege, which is?

----------
What about the argument that congress didn't exempt congress from bribery laws, and so the executive can attack? It doesn't matter what congress does: congress doesn't get to choose. This is a constitutional provision. Congress no more gets to set what the privileges attaching to the Speech or Debate Clause are than it gets to determine what the Qualifications Clause amounts to.

Congressional resolutions were within protection of speech or debate clause; action seeking injunctive and declaratory relief against House of Representatives resolution excluding Congressman from membership and declaring his seat vacant could be maintained against employees of House of Representatives, but had to be dismissed against those defendants who were Congressmen. Powell v McCormack (1969) 395 US 486, 23 L Ed 2d 491, 89 S Ct 1944.

So Much Depends...

2006-05-24T23:42:00.000-04:00

[EDITOR'S NOTE: Click here for a quick intro of Brittan]

I'm currently on a legal scholar's exchange program in Argentina. Recently we Yalies were taken to observe several judicial hearings.

I was struck by the court's refusal to accept an oath of office, effectively refusing to seat an elected representative who admits torturing and is accused of further crimes against humanity. This is against an international agreement, signed by Argentina (thus having the same weight as a constitutional provision) which should disqualify individuals like Sr. Luis Patti from holding public office. The final holdings should be interesting.

Yesterday Patti had a support rally that was televised live. He said "Human rights are an issue of the Left." One of my roommates jumped up like it was a goal in a futbol match, and the other sucked on her licorice drops with wide pupilled eyes. During the legislative hearing, opposing politicians were also yelling, but in sync with resounding cheers from crowds in the balconies. (If only the US had a heckling gallery in Congress!) We were supposed to be there, but the authorities had to limit the number of onlookers.

I hadn't expected the Dirty War to be such an open issue in judicial forums, but it's really everywhere. Trying to fix the problems resulting from this period seems to really infuse the jurists we've met so far with a palpable sense of purpose. It's really inspiring and makes meetings that I had expected to be somewhat dry and perfunctory into fascinating conversations. The signs of the scabs are all over the streets too -- in the graffiti and the art marring the walls and the cobblestones.

It's difficult for me to imagine that something like that occurred in this place. In other countries, it's been quite easy. Here, the pervasive beauty and lazy sunshine, along with the lovely people, can lure my mind into such a romantic reverie. But today, while standing on a balcony to watch the traffic, I did happen to notice the complete lack of green Ford Falcons (car predominantly used in the disappearances) and remembered that good genocide research ultimately comes down to the details.

William Carlos Williams was sitting by a dying patient and he happened to look outside the window. You probably have heard of the resulting poem, The Red Wheelbarrow":

"so much depends
upon
a red wheel
barrow

glazed with rain
water

beside the white
chickens."

This poem came to my mind at the moment I thought about the green Falcons. It was a strange juxtaposition...and I pondered how confronting morality on either a large or small scale can bring clarity -- figuratively or literally bringing out the colors of minutia.

One more final post on immigration: comparison of the House and Senate bills

2006-05-24T23:24:00.000-04:00

If you care at all about this issue, I suggest you look at the NYTimes side-by-side chart. It is policy without tears. It's simple, quick, and will make you smarter. Go do it.

Jefferson papers: no recent Supreme Court ruling: lower courts may control?

2006-05-24T23:18:00.000-04:00

And one more thing about the posts below: Brewster is regarded with a bit of suspicion, and was in the early 1970's; and so recent circuit cases may need to be examined to determine the state of the art here. Also, although Rehnquist signed onto Brewster, the case used an unfortunate severely-bastardized version of originalism in its discussion of the Speech or Debate Clause that even Renny can't have been happy with. The current conservative court makes it especially likely this case is on thin ice.

Of relevance may be

Minpeco (1988) 269 U.S. App. D.C. 238 (upholding Congressional Committee hearing privacy),
Paisley v CIA (1983) 229 US App DC 372, 712 F2d 686,
McSurely v McClellan (1985) 243 US App DC 270, 753 F.2d 88 (unworthy purpose of legislator does not revoke privilege),
United States v Kolter (1995) 315 US App DC 166, 71 F3d 425 (privilege cannot be destroyed just by forcing congressman to stand trial),
Brown & Williamson Tobacco Corp. v Williams (1995) 314 US App DC 85, 62 F3d 408 (congressional investigators can't be subpoenaed),
United States v Helstoski (1980, CA3 NJ) 635 F2d 200 (if criminal prosecution based on legislative acts, indictment must be dropped),
United States v Swindall (1992, CA11 Ga) 971 F2d 1531 (similar).

Note that most of these are U.S. Court of Appeals for the District of Columbia Circuit, presumably because most cases are first brought there; this is considered a particularly august circuit for whatever reason, so it's possible that its decisions carry an extra bit of weight.

It might not be too hard to get back to pre-Brewster (1973) law: just return to Johnson (1966). This doesn't help crooked Mr. Jefferson right now--although recall that former IL congressman Dan Rostenkowski got all the way to the DC Circuit in United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995)--but it might be relevant. Anyway, should the executive have followed Brewster, with its minimal separation-of-powers protections, or had its own, higher standard of constitutionality? A certain yls student was mercilessly savaged in a certain class by a certain short-tempered professor for something on this point that I can't recall...

Regarding Jefferson's papers, which is more likely: congressional bribery or executive intimidation?

2006-05-24T23:00:00.000-04:00

This is one realization I'm having, as I gradually come to regard this seizure with a bit more suspicion. It's true, of course, that Jefferson is likely as crooked as a dog's hind leg, but the question is whether, from an ex ante perspective, you think abuse of an institution's prerogatives is more likely to take place in the executive or the legislative branch, and which power has better mechanisms for keeping itself in check.

This is a hard case, because it's symmetric: it's easy to imagine a Rep being bribed, and it's easy to imagine a Pres intimidating opposition members.

So I'm starting to lean towards a separation of powers argument here, and the fact that a single Rep or Senator can be expelled according to U.S. Const. Article I, Section 5, while it's a lot trickier to discipline a president short of inter-branch nuclear war.

We'll see.

The Gravel and Brewster cases: can Rep. Jefferson's papers be seized?

2006-05-24T22:35:00.000-04:00

An excellent law review article on U.S. v. Brewster, 408 U.S. 501, is by Ervin, "The Gravel and Brewster Cases: An Assault on Congressional Independence," 59 Va. L. Rev. 175. I've been skimming it; if I find anything interesting I'll pass it on.

I note also that I misspoke below: U.S. v. Johnson was in fact affirmed by the U.S. Supreme Court in 383 U.S. 169. Johnson could not be prosecuted for being bribed to give a favorable speech before the House.

Rep. Thomas Jefferson Johnson strikes back: bribery will get you nowhere

2006-05-24T21:59:00.000-04:00

Interestingly, there is a precedent for congressional brib-ees being entitled to a get out of jail card: U.S. v. Johnson, 337 F.2d 180, discussed the case of a U.S. Rep from Maryland, Johnson, who accepted money to give a speech before the House defending two alleged criminals, for the purpose of getting the DoJ to drop charges against them. For a description of the Speech or Debate Clause and this case, see 78 Harv. L. Rev. 1473. Johnson was found not prosecutable because of the S or D clause, and the court decided that political disgrace and the criminal liability of the brib-ors was enough of a deterrent. Smile. This case is cited by the U.S. Supreme Court, Dennis v. United States, 384 U.S. 855, another prosecution of the brib-ors, and the court again did not decide whether prosecuting a congressional brib-ee was permitted. The later SupCt case, U.S. v. Brewster, 408 U.S. 501, also discusses these issues, though I've yet to read it.

The House will be holding hearings: "RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?" Orin Kerr over at Volokh proposes these spluttering additional hearings:

"I BEG YOUR PARDON: Celebrating the vital role of Presidential pardons when members of Congress get into a wee bit of trouble with the law." Or how about this one: "JOB INSECURITY IN AMERICA: Do we really need to be reelected every two years, or can we be appointed for life like the Judges?"

The quality of debate is not high:

During his own briefing, [House Majority Leader John] Boehner joked with reporters that he was withholding his own strong reservations about the raid because of a staff request that he do so.

Anthropomorphification will get you nowhere:

“The institution has a right to protect itself against the executive branch going into our offices and violating what is the Speech and Debate Clause that essentially says, ‘That’s none of your business, executive branch,’” [House Minority Whip Steny] Hoyer said.

More name coincidences: does this seem like Eddie Murphy in The Distinguished Gentleman?

One more immigration post: protecting vulnerable persons

2006-05-24T21:19:00.000-04:00

Here is a forward from a friend:
SA. 4036. Mr. LIEBERMAN submitted an amendment intended to be proposed by him to the bill S. 2611, to provide for comprehensive immigration reform and for other purposes; which was ordered to lie on the table; as follows:

On page 129, beginning on line 15, strike all through page 130, line 16, and insert the following:

(a) *PROTECTION OF VULNERABLE PERSONS.*--A person who is seeking protection, classification or status, as defined in subsection (b), shall not be

prosecuted under section 1028, 1542, 1544, 1546 or 1548, of this title, or section 275 or 276 of the Immigration and Nationality Act (8 U.S.C. 1325 or 1326), in connection with the person's entry or attempted entry into the United States until the person's application for such protection, classification, or status has been adjudicated and denied in accordance with the Immigration and Nationality Act.

(b) *DEFINITION.*--For purposes of this section, a person who is seeking

protection, classification, or status is a person who--

(1) has filed an application for asylum under section 208 of the Immigration and Nationality Act, withholding of removal under section 241(b)(3) of such Act, or relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment under title 8 of the Code of Federal Regulations, or after apprehension indicates without delay an intention to apply for such protection and promptly files the application;

(2) has been referred for a credible fear interview, a reasonable fear interview, or an asylum-only hearing under section 235 of the Immigration and Nationality Act or title 8 of the Code of Federal Regulations; or

(3) applies for classification or status under section 101(a)(15)(T), 101(a)(15)(U), 101(a)(27)(J), 101(a)(51), 216(c)(4)(C), 240A(b)(2) or 244(a)(3) of the Immigration and Nationality Act (as in effect on March 31, 1997).

As noted earlier, 8 USC 1325 is the provision making it illegal to enter the US under false papers. Feinstein is opposing this amendment, but this is apparently an internal Senate political move--possibly from a previous commitment to Kyl related to earlier negotiations. If you think people should get a shot at asylum despite the use of false papers--and I think there are a lot of reasons why those fleeing from torture might use false papers for legitimate reasons--then please contact Feinstein, especially if you are a Californian, and suggest she change her position and support Lieberman's amendment:
202/224-3841 DC

415/393-0707 SF

310/914-7300 LA
See this earlier post for Lieberman's contact info.

Immigration: the shift from Europeans to Hispanics and Asians

2006-05-24T18:24:00.000-04:00

This is just an amazing picture. This shift was set in motion by the Immigration and Nationality Services Act of 1965, which dramatically changed the racial system of immigration into the U.S.

Lyndon Johnson stated, "This bill we sign today is not a revolutionary bill. It does not affect the lives of millions. It will not restructure the shape of our daily lives." And yet it has, and America is far richer and more turbulent because of it.

A co-sponsor of the bill, Emanuel Celler, also claimed:

There will not be, comparatively, many Asians or Africans entering this country... Since the people of Africa and Asia have very few relatives here, comparatively few could immigrate from those countries because they have no family ties in the U.S.

For better or worse, he was wrong. If you believe like I do that America isn't just a mere pan-European project, but something unique that has roots in the entire globe, you'll think this was a good idea.

PS: why do some people use the word Hispanic, and others Latino? In New Mexico, where I grew up, very rarely was the latter heard; and yet in California it is the opposite. Surely there's no difference between NM and CA in how many non-Spanish-descended Latinos---that is, non-Spanish inheritors of the Roman Empire in the New World, such as the Portuguese---there are. Or at least those who would want to claim the term Latino.

Hmm: says wikipedia:

Of a group consisting of a Brazilian, a Colombian, a Mexican, a Spaniard, and a Romanian; the Brazilian, Colombian, and Mexican would all be Latinos, but not the Spaniard or the Romanian, since neither Spain nor Romania are geographically situated in Latin America. Conversely, the Colombian, Mexican and Spaniard would all be Hispanics, but not the Brazilian or the Romanian, since Brazil was colonized by the Portuguese, and neither Portugal or Romania are extensions of Spain. Finally, all of the above nationalities would all be Latin, including the Romanian.

But again, this doesn't explain why the term is used differently in NM and CA, since they are fairly similar demographically, at least among those who would be fighting for the term hispanic or latino. So, I suspect this is arbitrary, a bit like the soda/pop division.

Kansas City Royals...

2006-05-24T16:59:00.000-04:00

...are off to their worst start in franchise history: they are 10-33. This, for one of the worst franchises in baseball history. (The worst, btw, is Philadelphia: nearly 10,000 games lost in the past 120-odd years.)

The Royals have ripped off two eleven-game losing streaks already this season. (Nothing compared with their 19-gamer last year.)

The worst all time losing streaks:

AL: Baltimore (21) [to open the 1988 season!]
NL: Cleveland (24) [way back in 1899]

The New York Mets lost 340 games in three seasons back in the early sixties. The Royals would need to lose 130 games this season to match that.

Unfortunately, they're almost on pace. Projecting their record forward gives them 124 losses: this beats the worst season in modern history, the Tigers of 2003, by five games. (Cleveland in 1899 lost 134 games.)

Always look on the bright side of things: just a few years after their miserable three-season disaster, the Miracle Mets went on to win it all. And the Tigers have truly turned it around, and right now have the best record in baseball, being a game ahead of the world champion ChiSox.

The Royals made it to the playoffs 6 out of 10 years from 1976 to 1985, making it to the world series twice, and winning it in the final year. Someday maybe they'll be that way again. I'll stick with the Royals.

I'm just glad I'm not a Cubs fan.

Roof Bars: Drinking In the Skyline

2006-05-24T15:36:00.000-04:00

Everything free in America (for a small fee in America): more immigration news

2006-05-24T11:21:00.000-04:00

The Senate voted overwhelmingly yesterday to limit debate on the immigration bill. A final vote is expected later this week; passage by the Senate is considered somewhat likely. The Washington Post bravely leads with "Immigration Battle Likely" between the House and Senate: the House version is a bit sterner. Interestingly, the Hagel-Martinez three-tier category appears to still be live: "those here five years or longer, who could stay and pursue citizenship; those here two to five years, who could apply for green-card status after leaving the country; and those here less than two years, who would be ordered home." (Though the last group could of course still apply for visas from outside the U.S.)

The fight between Grassley (giving employers a safe-harbor protocol for avoiding charges of hiring illegals) and Kennedy (toughening penalties for hiring illegals) went to Grassley: SA.3986-3992 passed.

Three recent stories passed on:

From the AP, Feinstein's amendment allowing much more generous terms to illegal immigrants--effectively an asylum provision--was killed. Its detractors, somewhat fairly, labelled it a poison pill; certainly Republicans would not have supported the bill had it allowed all undocumented aliens to remain in the U.S. while undergoing a legalization process.
From the WSJ, a discussion of how much all this will cost. Heritage Foundation: $16b / yr. CBO: net of near zero (offsetting food-stamps with new payroll taxes). Total estimated increase in immigration: 66m new immigrants over the next twenty years.
See here for a discussion of the possibility of increased detention of asylum applicants. (About which I know very little, but should know more.)

Animal overpass or human underpass?

2006-05-22T22:19:00.000-04:00

The NYTimes reports that chickens might soon be able to cross the road---a road which previously divided one of the last grizzly bear refuges in half---on a huge earthen overpass. A few small ones are already in existence, for example near Banff: they are being monitored by pressure sensitive pads and night-vision cameras to check which and how many animals use them.

This is related to the problem discussed by Jared Strasburg in Nature: even if animals aren't killed on the roads, the cutting of a population into two by a highway can further endanger the sexual diversity of a species.

A poem about modern woman: updating the Song of Songs

2006-05-22T19:48:00.000-04:00

on my cheeks I wear
the flush of two beers

on my eyes I use
the dark circles of sleepless nights
to great advantage

for lipstick
I wear my lips
Rochelle Kraut, My Makeup

Compare this to, for example, the Song of Songs of the Old Testament:

Thy lips are like a thread of scarlet, and thy speech is comely:
thy temples are like a piece of a pomegranate within thy locks.
Thy neck is like the tower of David builded for an armoury,
whereon there hang a thousand bucklers, all shields of mighty men.
Thy two breasts are like two young roes that are twins,
which feed among the lilies.

It also is reminiscent of Petrarchan amatory poetry--see, for example, Sonnett XXIII, Canzone III, "Whether or not he should cease to love Laura":

Green robes and red, purple, or brown, or gray
No lady ever wore,
Nor hair of gold in sunny tresses twined,
So beautiful as she, who spoils my mind
Of judgment, and from freedom's lofty path,
So draws me with her that I may not bear
Any less heavy yoke...
Who, in all Memory's richest cells, e'er saw
Such angel virtue so rare beauty shrined,
As in those eyes, twin symbols of all worth,
Sweet keys of my gone heart?

There is also poetry where the woman praises and discusses herself from Petrarchan sources (see Ariosto) and Old Testament verse; so the difference between the old days and the new is not a mere subjective turn. The question about this objectification, this analogizing from a woman's body to animals or towers or keys of truth--how are the harms different, or greater or smaller, than Kraut's naturalism? Is Kraut happier than Solomon's beloved, or Laura? Are her eyes baggy from fending for herself?--and has this independence gotten her what she wants? Her cheeks are rouged with drink and her eyes are mascaraed with life, but why are her lips bare?--has she nothing to say? Why is she wearing her lips? Are they protective? Are Solomon's sulamitess and Laura and Kraut overconfident, or underconfident, or broken? Is there some other choice between angel and victim? Does human love risk perversion if not situated in a virtuous mean, if not complemented by the divine love?:

Set me as a seal upon thine heart,
as a seal upon thine arm:
for love is strong as death;
jealousy is cruel as the grave:
the coals thereof are coals of fire,
which hath a most vehement flame.
Many waters cannot quench love,
neither can the floods drown it:
if a man would give all the substance of his house for love,
it would utterly be contemned.

As a wise man recently said, "Eros and agape—ascending love and descending love—can never be completely separated. The more the two, in their different aspects, find a proper unity in the one reality of love, the more the true nature of love in general is realized."

This is the Catholic tradition that caritas is composed of both agape and eros in their right relation, against other intellectual traditions that eros is a perversion. (See, e.g., "Eros and Agape in Karl Barth's Church Dogmatics," 2 Int'l J. Systematic Theology, 189.)

To be a woman--to be strong enough to not be overcome as object, to be strong enough not to retreat into wearing one's self to escape analogy--to fulfill the nature of femininity in all its universality and particularity... As Oscar Wilde noted, "To be natural is such a very difficult pose to keep up." A hard job, for a man or a woman; oddly, maybe it's easier for both together.

Montenegrins Elect to End Union with Serbia

2006-05-22T13:30:00.000-04:00

This ends the slow, slow breakup of Yugoslavia. From 1918 to 1991 to 2006, this relationship had a lot of ups and downs. But now it's over, really, really, good and over. Let the post-breakup sex commence.

One of the best theo-philosophical blogs on the web

2006-05-21T16:50:00.000-04:00

Per Caritatum, by Cynthia Nielsen. (The name means "by their carrotatoes," where a carrotato is a cross between carrot and a tater, "tatum" in Latin.)

хорошaя вещь: картина
плохaя вещь: она -- пресвитерианскaя священникaнкa
страшнaя вещь: oбрyчальное кольцо

An exact tie!!! Harvard and Yale Law Reviews equally good, to two-dozen decimal places

2006-05-21T16:43:00.000-04:00

After using their methodology to carry out calculations of the relative value of the Harvard and Yale Law Reviews to over twenty significant figures, investigators threw their hands up and called it a draw. The Relative Value of American Law Reviews, Ronen Perry. Interestingly, the next best law review, the Columbia Law Review, got a 92.8 (out of the 100.000000... points H and Y got). This is pretty similar to the ratio of the next-best law school after Yale according to the USNews rankings, showing a fair bit of dominance of the field in both journals and schools, with the exception that Stanford is now putting up a fight for second. The same results occur in Larry Solum's reports on entry level legal hiring. If you're ever heard of Vilfredo Pareto's other famous idea, the circulation of elites, then this may seem familiar.

More on remittances

2006-05-21T16:19:00.000-04:00

1998: Migrant Remittances to Latin America: Reviewing the Literature, Meyers (Inter-American Dialogue, Tomas Rivera Institute) [pro-remittance]

2003: Annual Report of the Inter-American Commission on Human Rights, (Organization of American States) [mixed review]

2005: Remitting Disaster (Will Wilkinson of the Cato Institute at Reason Magazine: on disaster relief through remittances) [pro]

2006: Investigacion: Remesas (Los Clubes Zacatecanos; see also this introduction) [pro]

Highest-earning Mexicans come to the U.S.; wages of those who stay rise

2006-05-20T14:19:00.001-04:00

This from a paper from NBER, "Immigration, Labor Supply, and Earnings in Mexico," Gordon Hanson.

Now 8.6% of Mexicans (born in Mexico) live in the U.S., and this has been steadily rising. This outflow puts upward pressure on those remaining in Mexico: as supply declines, demand for workers goes up. The estimate is that real wages have risen 8% in the past 30 years solely because of outmigration.

But this effect is most pronounced for those with the most education (high school and above): they are the most likely to leave for America, or, if they remain behind, are the biggest wage-gainers. Also, immigration is very region-specific, and, oddly, it's not the areas along the border that contribute most to legal and illegal immigration: it's central Mexican states that are a thousand km from the border--Zacateca, Michoaca, Guanajua. Furthermore, native-born American wages are only weakly correlated with immigrant inflows, so migration probably has little effect on the U.S. wage structure. However, the author puts the decrease in average wages at about 3%: if this hits predominantly poor Americans, this might be a significant effect. Unclear. More to come.

Gnarls Barkley: amoral gospel music

2006-05-20T14:07:00.000-04:00

I am not cool enough to recommend this album, but if you like funkadelic hip-hop, check out Gnarls Barkley's debut, "St. Elsewhere." It's a collaboration between Danger Mouse (producer of Gorillaz albums and DangerDoom, and the legend behind the Grey Album) and Cee-Lo. But it's quite different from anything you've ever heard. And very good. Asks Sam Chennault, "Is it amoral gospel music, cinematic soul steeped in idiosyncratic underground hip-hop or left-field indie rock with a drum machine and a basketball fixation?"

Will Hashemi be admitted to Yale? Don't let your alligator mouth...

2006-05-18T18:20:00.000-04:00

...write checks your canary ass can't cash. Put yer money down at TradeSports. Currently running at 3-1 against Hashemi being offered a full degree-program spot on or before 31Aug06.

German toy manufacturer wrecked by Muppet

2006-05-18T16:32:00.000-04:00

"A German stuffed toy manufacturer that has exclusive rights to produce the official World Cup mascot -- Goleo VI, a shaggy-maned lion in a football shirt -- has filed for insolvency because no one wants to buy it."

Why is this funny? And why aren't the soccer-lions wearing shorts? And why is only one of them bashful about it? And is this the most useless blog post ever?
Story from Der Spiegel.

Are Sen's "capabilities" the same as Raz and George's "perfections"?

2006-05-18T13:17:00.000-04:00

Virtue ethics generally views virtue as a deep-down habit or disposition to do the right thing. It is a concord between reason and the emotions, and it does the right thing for the right reason, and contributes, as much as internal decisions can, to a flourishing human life. But external conditions can help us to become virtuous---a good teacher, wise parents, and a healthy moral ecology are all important. A virtue is thus a capacity to engage in the good life, and is both a prerequisite and a component of individual and civic flourishing. The community is engaged in the project of making its members virtuous, and its members then build a strong community. (See, e.g. this previous post.)

It is no surprise then, to find that Amartya Sen and Martha Nussbaum's description of the central human capabilities are quite similar to John Finnis's list of the human goods in his virtue-ethics classic Natural Law and Natural Rights. And, similarly, "perfectionism"---spelled out by Joseph Raz, Robert George, and other natural law theorists, and reflecting the belief that society has a role to play in making men moral so that they can actualize their own goods---leads to a doctrine similar to the capability approach, of creating an environment that helps individuals develop the tools they need to flourish.

The question, then: is perfectionism more inherently liberal than many natural lawyers would claim (Raz's contention), or is capability theory more sternly objectivist? Googling shows that this question has already been asked, regrettably but unsurprisingly. For example, see Perfectionism, Paternalism, and Liberalism in Sen and Nussbaums's Capability Approach, 14 Rev. Pol. Econ. 497, Severine Deneulin, for an attack on Sen from this latter point of view. Of course, I agree with the paper's minor premise, I just disagree with the conclusions...

Judicial independence and asylum law

2006-05-18T11:42:00.000-04:00

A good note on the role of judges in asylum law from Judge Reinhardt. After noting the pretty ironclad independence of Article III judges, he then notes that in the asylum field, most judicial functions are performed by the executive branch (BIA, EOIR), and that the judiciary proper has a fairly limited ability to review them---this is essentially a New Deal administrative law situation. Immigration Judges are DoJ (now DHS) employees, the deportee does not have a right to counsel (and two-thirds are not represented), and the findings of the IJ are given a great deal of deference. (For a typical example of how procedurally Chevron-hard a circuit judge must work to overrule a lower finding, see Mohammed v. Gonzales, by Judge Reinhardt himself. A reversal of an IJ can occur only if "the evidence [that the asylum seeker] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution," which is quite a high standard.)

Most importantly, Reinhardt's fears in 2001 about streamlining weren't misplaced: Ashcroft's plan in 2002 to cut from 23 to 11 the number of BIA appellate members is indeed generally considered to have been fairly political, with both the cut itself, and the immigration attitudes of the cut members, being somewhat suspect. (I should add that I have never seen an independent assessment of this, though, giving details and evidence of the biased cuts.) This is just what Article III was designed to prevent.

UPDATE: See ELS for a discussion of how shrinking relative Article III salaries may be undermining judicial independence. The salary ratio of being a partner at a big law firm to being a circuit court judge is now about 6.

Posner the contrarian

2006-05-18T11:18:00.000-04:00

Hard to underestimate how odd Posner is. He just proposed allowing the CIA to spy inside the US (or, equivalently, creating a parallel agency to do that).

But in the past he's argued that law reviews are idiotic. He went against the tidal wave of Gladwell's Blink. He thinks nothing's wrong with the PATRIOT Act. He is against all medical privacy laws. He's pretty happy with the NSA wiretapping of Americans. He's said the last year of law school is a total waste. [Harvard Law Record 9, Jan. 16, 1998.] The media are morons, and most public intellectuals are, too. His blog is a regular feast of crotchety ill-mannered attacks on the received wisdom.

I wonder what he's like in person. For some reason I bet he lives on unfiltered cigarettes and rot-gut liquor. I want to have his child.

Immigration update: Senate amendments being voted on...

2006-05-18T11:16:00.000-04:00

...Thursday 5/18. From an email from New Haven Legal Assistance:

S. Amend. 3985, is sponsored by Sen. Ensign (R - NV) and would make it so that undocumented immigrants who are eventually legalized under the proposed bill could not count any earnings they had while they were undocumented toward their Social Security retirement or disability or survivor's benefits. This would be the case even though the immigrant had paid into the Social Security system through payroll taxes.

S. Amend. 4064, is sponsored by Sen. Inhofe (R - OK) and would require that English be used in all official business of the United States, except when another language is specifically designated in law. While no one is opposed for the government to use English (!), the problem with this amendment is that it would make it less likely for the federal government to provide forms and other services in languages other than English. The amendment also makes it more difficult to obtain citizenship by increasing the English-language and civics requirements.

Again, although I have not thought about this much, I have no problem with an English-language requirement for citizenship. But if the system is being used by immigrants with few such skills, why would you make it harder for them to get forms they can understand? If you want to decrease immigration, lower the quotas; don't let people into the system, and then put incomprehensible obstacles in front of them. Plus, the social security provision just seems mean. Clearly you shouldn't get benefits you are not paying for; but if you are paying into the system, and eventually become legal, what is the point of denying you this money?

The infield fly rule and the common law: who is Pluck the Wonder Chicken?

2006-05-18T11:10:00.000-04:00

For a discussion of the wonders of English and American jurisprudential style---its adaptability, its slow but steady solution of pesky problems, its gentlemanliness---see
The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975). Very funny: the very first footnote is to the word "the," and the most mysterious footnote is in a discussion of tricksiness, and how the infield fly rule was designed to avoid it: the footnote text is "See, e.g., Pluck (the Wonder Chicken)." A jab at someone, perhaps? Google reveals nothing...

Am I the only person in the entire law school...

2006-05-18T11:07:00.000-04:00

...who, seeing the standard abbreviation for the Supreme Court of the United States, thinks of this guy? That is seriously messed up. Actually, I was raised to think that he was the archenemy of all that is good. An evil nominalist conspiracy has taken over our judicial system!

Liability rules in Intellectual Property Law: covers vs sampling

2006-05-18T11:00:00.000-04:00

Here's something odd: why are covers and sampling treated so differently? From the Indiana University Copyright Management Center:

A cover song may be created either by getting permission from the mechanical rights owner or through a compulsory mechanical license. Once the copyright owner of a musical composition records and distributes the work to the public, or allows another to do so, anyone that wishes to record and distribute that same work may do so without permission (subject to certain limitations) by issuing the copyright owner a notice of intention to obtain a compulsory license. The cover song is subject to a compulsory mechanical license which provides the copyright owner an automatic royalty payment for every recording created and sold. The cover artist may negotiate with the copyright owner to secure better terms than what the compulsory license affords the cover artist. However, the copyright owner cannot disallow the cover artist from reproducing and distributing that work if the cover artist is willing to pay the compulsory license.

This is controlled by P.L. 103-198, codified around 17 U.S.C. 107. Compare this with how to obtain permission to use sampled sounds in your own music:

Permission must be secured for the performance rights as well as for the mechanical rights. The performance rights are involved because a sample “performs” part of the songwriter’s composition. The mechanical rights are involved because a sample re-records a part of the original sound recording.

Why isn't the statutory "compulsory system" extended to sampling? Sampling rights would seem to be a great candidate for liability rules rather than property rules, given the transaction costs involved. You'd avoid ridiculous cases like this one, where a band, NWA, was held to have violated copyright law for a truly de minimis sampling from Funkadelic's "Get off Your Ass and Jam" for their song "100 Miles and Runnin'." The sample is warped almost beyond recognition, but someone spotted it. The above website brilliantly mocks the "no de minimis excuse" rule by showing just how much you can make out of the three notes NWA used. If you're interested in sampling, check it out. And of course see The Grey Album.

I'm not necessarily advocating making sampling licenses compulsory; it just seems like covers and samples should be on the same footing. Am I wrong? How much, by the way, do you pay in royalties for a cover song? "9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater." And, if you feel bad downloading music illicitly from something like Napster, see this cute graphic from the NYTimes on how you'd go about gettin' legal. Hat tip to Reynard.

The "economic consensus" on immigration

2006-05-18T10:49:00.000-04:00

See the open letter by Alex over at Marginal Revolution: even I recognize some of the economists who have already signed on.

Supreme Court Clerkships: How much money would it take for you to have to put up with Scalia?

2006-05-18T09:50:00.000-04:00

About $200,000 these days, according to the Post's discussion of how much a law firm will pay in bonuses to hire an ex-clerk. It's probably ten times as much for an ex-Posner clerk, given his crotchetiness. See also ELS: will law schools begin offering bonuses to potential professors who were scotus clerks? Amar would be pissed at this. What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex L. Rev. 1483 (2004). What about "What You Can Learn from Buddy Bell and the Kansas City Royals"?

News on immigration amendments: "Good fences make good neighbors"

2006-05-17T23:02:00.000-04:00

ACCEPTED: Senate Amendment SA. 3979, which repairs deteriorated fencing near Douglas, Nogales, Naco, Lukeville, Yuma, Somerton, and San Luis, Arizona; constructs vehicle barriers in the Tuscon and Yuma Sectors; and constructs "not less than 370 miles of triple-layered fencing which may include portions already constructed in San Diego, Tucson and Yuma Sectors." The location is to be where most smuggling and illegal entry occurs, as determined by the Secretary of Homeland Security. The required completion date is 2 years from enactment.

ACCEPTED: Senate Amendment SA.3965, Cornyn and Kyl, which states: "(A) In general: An alien is ineligible for adjustment to lawful permanent resident status under this section if: ... (iv) the alien has been convicted of a felony or 3 or more misdemeanors." This is new: I believe the previous rule that is being modified is: "Any alien who is convicted of an aggravated felony at any time after admission is deportable," 8 U.S.C. 1227(a)(2)(A)(iii). [I think S.2611 is rewriting this entire section; there's similar language in 8 U.S.C. 1251(a)(4).] The definition of "aggravated felony" was helpfully supplied as a "particularly serious crime." There was certainly a strong justification for excluding those who committed aggravated felonies. But so many things are plain felonies---keep in mind that this could be a state law felony---that this rule could easily catch a lot of (fairly) innocent little fishies. In Arizona, for example, the common law crime of false pretences, "obtaining credit by false pretences as to wealth and mercantile character," is still a felony.

REJECTED: SA. 3963, Vitter. This would have effectively torpedoed any Bush plan for an amnesty by denying the possibility of adjustment to LPR for those who have overstayed their visas by more than two years.

PENDING: SA. 4036, Lieberman. One of the new changes in S.2611 is to treat entering the US on a fraudulent passport (a crime under 8 U.S.C. 1325 and 1326) as a particularly serious crime; this makes it hard on those who had to flee persecution in their home country using false documents. Lieberman's proposed amendment would at least guarantee that those entering illegally and making asylum claims have a chance to get in front of an asylum officer to have their story heard. For asylum lawyers, this is a particularly important amendment to get passed.

PREVIOUSLY ACCEPTED: SA. 3994, Salazar. "To prohibit implementation of title IV and title VI until the President determines that implementation of such titles will strengthen the national security of the United States." That would just require Bush to get out his pen. Passed 5/16/2006.

PREVIOUSLY REJECTED: SA. 3961, "To prohibit the granting of legal status, or adjustment of current status, to any individual who enters or entered the United States in violation of Federal law unless the border security measures authorized under Title I and section 233 are fully completed and fully operational." This was effectively a poison pill. Rejected ("not agreed to") 5/16/2006.

ALSO PENDING: about 70 other amendments. See Thomas.

Even if you have strongly ambivalent feelings about this legislation, like I do, I encourage you to read up on it, and if you find something you think is important or horrific, to call your Senator. Read, for example, this summary of problematic provisions of the new bill, and ask to talk to your Senator's chief of staff.
If you live in Connecticut, and would like to support Lieberman in his amendment to help asylees who flee torture on false passports, his fax number is (too-zeero-too) 224-9750.

A specialized Immigration Court of Appeals?

2006-05-17T20:00:00.000-04:00

There's been more buzz about a suggestion that, as far as I know, got its first large-scale public reception about six weeks ago: making a specialized Immigration Court of Appeals---or consolidating all such appeals in, say, the U.S. Court of Appeals for the Federal Circuit---that would sit on top of the (executive branch) Board of Immigration Appeals. Right now, such cases are appealed directly to the circuit court of appeals in which the BIA hearing was physically held. (This is the result of the Ashcroft reform, which is generally, but not universally, considered a disaster, and is slowly being undone. It gives direct access to a very high court, but this leads to overworked judges, and lots of summary and unpublished opinions. If you have worked on an immigration case, you know that the inability until recently to cite an unpublished opinion is maddening.)

The bill S.2611---Arlen Specter's Comprehensive Immigration Reform Act of 2006, which was moved forward on May 15th to be placed on the calendar of the Senate, and is probably being debated as we speak---contains in Sec. 707 the demand for a GAO study on the possibility of:

(1) consolidating all such appeals into an existing circuit court, such as the United States Court of Appeals for the Federal Circuit;
(2) consolidating all such appeals into a centralized appellate court consisting of active circuit court judges temporarily assigned from the various circuits, in a manner similar to the Foreign Intelligence Surveillance Court or the Temporary Emergency Court of Appeals; or
(3) implementing a mechanism by which a panel of active circuit court judges shall have the authority to reassign such appeals from circuits with relatively high caseloads to circuits with relatively low caseloads.

Some possible fears.

A recent New York Times editorial worried that judges nominated to whatever new court took over immigration appeals could be screened for their immigration beliefs by their political appointers. Normally one can't dissociate a judge's immigration attitudes from his broader beliefs, so politicos are forced to a thumb-up/down response to a package deal. (Of course if immigration attitudes are strongly correlated with other politically desirable judicial traits, this subject of law may already be capable of being screened--but I suspect that immigration is largely orthogonal to traditional left-right distinctions.) It's somewhat, um, utilitarian of the NYT to make this argument, given their past attitudes to judicial screening. During Clinton's years: anti-filibuster. During Bush: pro-filibuster. Pot-kettle-black: attacking the Republicans as hypocritical on the filibuster. Good God. Institutional memory hurts. If you think you can win on an issue, you usually call for divisibility; if you think you're likely to lose, you demand a package deal. I don't think the New York Times has faith in the ability of the liberal view of immigration to succeed in the marketplace of ideas--which is sad, because I probably agree with the NYT on this issue.
It is sometimes desirable to have a split in circuits, since this may drive clarifications and developments in the law. Of course, it can also drive confusion and manifest injustice. This is, at root, the problem with federalism. It's both great and it sucks. Go figure. What are the underlying facts that support splits in immigration law? Decentralization makes some sense with regard to criminal, tort, and education law. But what subject could be more apt to national control than the issues of national borders? It's hard to trust liberals or conservatives to use this argument honestly, since both are fair-weather federalists at best.
The danger of institutional capture is quite profound here. If you give lobbyists and activists a single target, they can train all their fire on it; similarly, an immigration-heavy court is vulnerable to infiltration and self-selection by those possible judges who have strong views on immigration. One good example of institutional capture is the U.S. Court of Federal Claims, which adjudicates damage claims against the federal government under, say, the Tucker Act and eminent domain and regulatory takings. This court is generally viewed by outsiders as "tilted ideologically to the right." W. John Moore, Just Compensation, Natl. J., June 13, 1992, at 1404. They are considered strongly libertarian, which scares environmentalists who worry about the danger of the regulatory takings doctrine. Another example of institutional capture is the Patent and Trademark Office, and what amounts to its appellate division, the abovementioned U.S. Court of Appeals for the Federal Circuit. Both have been strongly criticized as being profoundly expansionist, and this is ascribed to their having been captured by pro-patent forces. The very mission statement of the PTO reads: "The primary mission of the [PTO] is to help customers get patents." Not exactly ringing with awareness of the danger of the anti-commons!

There seem to be arguments on both sides: the main danger is that this is a stupid plan to correct for a previous stupid plan, the Ashcroft debacle. The GAO report will come out within 180 days of the passage of S.2611 (or something like it); so the battle to decide what our immigration appeals system looks like is really gearing up.

UPDATE: a colleague has sent me a letter from Harold Koh, dean of Yale Law School, to Senator Specter on this subject. I've been unable to find it online, so I put up the text below the fold. [[[continue reading...]]]

March 14, 2006
The Honorable Arlen Specter
Chairman, Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Mr. Chairman:

We are law school deans and legal scholars whose areas of scholarship
include federal courts, administrative law, immigration law, and
constitutional law. We write to express our profound reservations
regarding the legislative proposal found in Section 701 of your draft
bill entitled February 24, 2006, Chairman’s Mark. This provision would
place exclusive jurisdiction over all future immigration appeals in
the U.S. Court of Appeals for the Federal Circuit and eliminate the
role of the regional courts of appeals in such appeals. We urge that
this proposal be withdrawn immediately, so that it can be subjected to
the careful study that such a fundamental change in our legal order
warrants

Our concerns are based on: the strong, historically grounded
presumption favoring the use of Article III appellate courts of
general jurisdiction in our judicial system; the important values
underlying that tradition; and the often unforeseen negative
consequences that arise when specialized courts are established (and
especially when they are established hastily, as this bill would do).

We are, unsurprisingly, not of one view regarding the costs and
benefits of specialized courts. But we strongly share the view that
transferring categories of cases involving claims of personal liberty
that are currently heard in the regional circuits to a single,
narrowly focused, specialized, commercially oriented court should not
be done precipitously, or without hearings in which experts on
immigration, federal jurisdiction, constitutional law, and
administrative procedure can be heard. We are fully mindful of the
caseload pressures that some circuits are presently facing, due in no
small part to the upsurge in immigration appeals. Nonetheless, we do
not believe that the current situation warrants the radical step of
relegating all immigration appeals to the Federal Circuit, a court of
specialized jurisdiction that currently hears cases involving areas
quite distant from immigration law, such as patents and trademarks,
veterans’ claims, and other miscellaneous matters.

Legal scholars have in the past raised reservations about specialized
courts on numerous grounds. Generalist judges have the benefit of
applying their broad judgment and experience drawn from deciding cases
across many and varied fields of law, while specialist judges are
exposed solely or mostly to a single narrow field of law. This can
generate not only tunnel vision but also an ossification of views in
such judges. Moreover, specialized courts are considerably more prone
than generalist courts to being “captured” by opposing interest
groups or the agency they review. These are dangers that should not be
lightly undertaken when liberty is at stake.

The Honorable Arlen Specter
March 14, 2006
Page 2

In immigration cases, for example, judges are typically asked to
interpret the federal immigration statute, as well as complex and
interrelated questions of constitutional law, criminal law, habeas
corpus, state criminal statutes, family law and individual
liberty. The specialized judges of the Federal Circuit rarely, if
ever, now confront any of these types of claims. Thus, their
consideration of these multifaceted and important issues would arise
overwhelmingly, if not exclusively, in the immigration context. The
Federal Circuit judges would not benefit from the broader experience
of considering similar questions in a wide variety of contexts and
cases that has been one of the hallmarks and strengths of the
generalist tradition of Article III judging.

In addition, as a practical matter, the Federal Circuit would face an
initial caseload crisis and many novel transitional practical and
legal issues, as it confronts the large number of new immigration
appeals from throughout the country. This caseload increase could
dilute the quality of the Federal Circuit’s decision-making not only
in the immigration cases that would be added to its docket, but also
in the areas of its existing jurisdiction. Some of those transitional
issues may diminish over time. Specialized courts are, however, far
more vulnerable to fluctuations in caseload because of their limited
jurisdiction. These kinds of fluctuations can be even more extreme
with immigration cases, due to such factors as changes in patterns of
immigration enforcement and the impact of federal legislation.

Significant issues of fairness and the perception of access to the
courts would also be raised if henceforth, all immigration cases were
heard exclusively in the Federal Circuit. Immigrant petitioners,
unlike commercial litigants, are often not represented by legal
counsel and may be incarcerated during the pendency of any appeal.

We believe, therefore, that altering the appellate jurisdiction of the
regional federal courts to centralize claims in a single specialized
court ought to be, if anything, a response of last resort. This option
should be pursued only after the Judiciary Committees of Congress hold
hearings at which experts are called and thorough study is made. Such
a hearing would permit a thorough consideration of the costs and
benefits of the specific proposal, as well as consideration of the
experience with previous or current specialized courts.

For all the foregoing reasons, we urge you to delete 701 from the
Chairman’s Mark of the immigration legislation, and to consider that
proposal, if at all, at a time and in legislation where the broader
implications and various considerations raised by this proposal can be
fully expressed and evaluated before enactment.

We note that the proposal in section 707 of the Chairman’s Mark to
create a new certificate-of-reviewability gatekeeper system for
immigration appeals is also untested in relation to executive
detention, and it raises constitutionally-sensitive questions of
access to judicial review that would benefit from further study by
your Committee. By expressing our opposition to 701 we do not mean to
suggest any endorsement of section

The Honorable Arlen Specter
March 14, 2006
Page 3

707 or any other provision of the proposed bill, about which we
express no collective view.

If further information regarding our views would be helpful, Harold
Hongju Koh would be pleased to speak or meet with you.

Respectfully,

Rochelle C. Dreyfuss
Pauline Newman Professor of Law
New York University School of Law

David A. Martin
Warner-Booker Distinguished
Professor of International Law
Class of 1963 Research Professor
University of Virginia School of Law

Gerald L. Neuman
Herbert Wechsler Professor of Federal
Jurisprudence
Columbia Law School

Richard L. Revesz
Dean and Lawrence King Professor
of Law
New York University School of Law

Peter H. Schuck
Simeon E. Baldwin Professor of Law
Yale Law School

Kathleen M. Sullivan
Stanley Morrison Professor of Law and
Former Dean
Stanford Law School

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe
Smith Professor of International Law
Yale Law School

Henry Paul Monaghan
Harlan Fiske Stone Professor of
Constitutional Law
Columbia Law School

Judith Resnik
Arthur Liman Professor of Law
Yale Law School

Philip G. Schrag
Professor of Law
Georgetown Law School

David L. Shapiro
William Nelson Cromwell Professor
of Law
Harvard Law School

Institutions listed for identification purposes only

cc: Members of the Committee on the Judiciary

[Is it possible they got Secs. 701 and 707 confused, or that the bill has since switched them? The current 701 just increases the number of immigration personnel, which seems to me to be the only currently feasible half-step towards solving the problem. Sec. 707 is the reorganizational portion. Hmm.]

Intervals: how to remember relative pitches

2006-05-17T18:20:00.000-04:00

If you sing a cappella and need to know how to quickly and easily get an interval without going up a scale inductively, there are traditional tricks taught to beginners. One is to hum a tune: try the tunes below to get the interval. I wish this list were a bit better: ideally the intervals would not be "on the way" to a further note--in both of the sixth examples below, for example, the sixth notes are not static, but are inclined to the next note in the tune, and this can mess with your pitch. Are there songs for intervals larger than an octave? Those intervals don't happen very often, but it'd be interesting to have tunes in one's head. Furthermore, there would ideally be a dozen songs for each interval, and the one that is clearest in your mind would settle in. I find Ain't It a Pretty Night, for example, really works great for the full seventh. And finally, the songs would ideally be mega-beautiful and rich with meaning: no Jingle Bells allowed.

Anyway, give these intervals a try.

diminished second (half-tone): Jaws
second (tone): happy birthday
minor third: Lull-a-by of Brahms
major third: "Have your-self a merry little Christmas"
perfect fourth: taps, Wedding March from Mendelssohn's Midsummer Night's Dream ("Here Comes the Bride")
augmented fourth (tritone): Bernstein's Maria from "West Side Story"
perfect fifth: Holst's Mars, "rain drops on roses" from My Favorite Things, "The Sounds of Music"
minor sixth: ?
major sixth: NBC chime-theme notes (I,VI,IV), Jingle Bells "dash-ing through the snow"
diminished seventh: Bernstein's Somewhere "there's a place for us" from "West Side Story"
seventh: Floyd's Ain't It a Pretty Night from "Susannah"
octave: Somewhere Over the Rainbow

What is it like to be a bat?

2006-05-16T18:22:00.000-04:00

I forgot to mention Thomas Nagel's classic essay "What is it like to be a bat?", The Philosophical Review LXXXIII, 4 (October 1974): 435-50, when I was talking about the mind body problem earlier. One of the more convincing portrayals, I thought, of what it's like to be another animal was Paul Auster's Timbuktu, whose protagonist was a fairly loyal dog of a homeless person. Also don't forget T.H.White's rendition of Arthur's experience as a goose, ant, etc. in The Once and Future King.

Three questions about immigration over at MR

2006-05-16T14:44:00.000-04:00

Marginal Revolution, and the comments thereto, discusses three questions: what are the factors setting the maximum, optimal level of unskilled immigration into the US? Why trust the federal government to run overall immigration policy when we don't trust them to know which types of skilled workers to let in? Do the children of skilled immigrants adapt to the US as well as the children of unskilled laborers famously do?

US World Cup: our chances are slim to none...

2006-05-16T11:04:00.000-04:00

...and slim just left town. At least that's what TradeSports says. We are a distant third to win Group E: Italy=48%, the Czechs=32%, the US=13%, and Ghana=7%. (The top two teams go through.) We are slated to lose our first game, to the Czech Republic on June 11, by about 2.2 goals; in fact we're more likely to lose than draw. We're the 14th-ranked team, below Switzerland, a team which, as far as I know, has never gotten out of the group stages.

This is some serious lack of respect. For a team that made the quarterfinals four years ago, was perhaps somewhat unlucky to be stopped by Germany and MichaelGoddamnedBallack's head even then, and is not dramatically worse now, I think there's a chance to make some money here. I'm going in.

The Mystical Beast, by Alison Farthing

2006-05-16T11:00:00.000-04:00

This is the first book I ever remember reading. I think I may have gotten it from Scholastic. I didn't know you had to start at the beginning, i.e., at the left. So I opened it up, and just started reading until I reached the end. I was probably 4 or 5. Several years later---when I was immensely more mature, you can be sure, and I happened to see the book and decided to recapture my extreme youth---I started at the beginning. I was shocked, and had no idea what book it was; it was quite a few pages before I got to a spot I recognized. And while the book perhaps might have made more sense then, in fact my little kiddy mind had seen nothing odd in jumping into the middle of a story.

Dresden Dolls: unhook the stars and take them down

2006-05-16T00:09:00.000-04:00

The shorter Cassandra's message is, the longer it will be repeated. The Bretons tell that, off the coast of Brittany, on certain perfect early mornings, the Cathedral of Ys rises from the waves, with bells ringing and priests chanting, and then sinks back. The versions of the legend differ on whether La Cathédrale engloutie is blessed or accursed, but viewing its brief appearance portends death, or perhaps passage. The Weimar republic has always seemed to me something similarly doom-bringing, cut off even in the blossom of its sin, like Hamlet's father. Fritz Lang, Erich Maria Remarque, Max Reinhardt, but perhaps most of all---Brecht and Weill. The cabaret is a spire of wild freedom momentarily exposed by the dark sea; what we need is dry land, but sometimes that is far away.

The Dresden Dolls are the heirs of everything Kurt Weill and Langston Hughes developed in Street Scene, every celebration of vice as a proof of life, the plea for romance in a town so full of emptiness. The Dolls's second album, Yes, Virginia, wears the ghoulish grin that shocked us when we heard the Weill wail of the tormented whore in love with the brutal sailor Surabaya Johnny, and the innocent child-like dreams of destroying everything of Pirate Jenny. The Dresden Dolls's music is strangely reminiscent of Tori Amos, but they make her misery look bourgeoise. Both do take pleasure in their pain. And this is the only freedom they can manage in our modern Metropolis.

So constantly a ghost must recur to tell wild-eyed Hamlet of how the fascist poison "barked about most lazarlike with vile and loathesome crust" the body politic. And we hear, but become wilder, and Cassandra holding hands with Ophelia sinks beneath the waves.

Listen to the Dresden Dolls's new album.--But if you haven't heard their self-titled initial effort certainly get that first...

Philadelphia Orchestra gets new toy

2006-05-15T22:35:00.000-04:00

The world's best orchestra got a new monster pipe organ. Guess which piece they played to premiere its honking bass and screaming hooks? Oh, yeah, baby, that's right.

Sorry I wasn't there for this. Kimmel Hall is indeed a great space, but it'll never replace the AoM, at which I spent many happy hours...often backstage during concerts, chatting with the tympani player, hearing pieces that still bring to mind the golden dust that would descend over the audience from the crumbling ceiling whenever the orchestra would emit a particularly ear-shattering blast---like something from Milton.

Best American novel of last 25 years?

2006-05-15T22:09:00.000-04:00

Easy, of course: Gene Wolfe's Book of the New Sun. This sprang to mind because I realized the other day it's been 26 years since it first came out. Voting for Wolfe is not necessarily a comment on the past quarter-decade.

If you don't agree, you can petulantly head on over to the NYTimes Book Review's answer. I'm surprised how many I've read, since I don't read books. Beloved is indeed stunning. I tried more Morrison, and never found anything quite as effective. If you like history, and baseball, DeLillo's Underworld is quite marvellous. Anything by Cormac McCarthy uses words in ways that hurt your head in good ways; I like Blood Meridian less than All the Pretty Horses. So much Phillip Roth! Okay. But as for Updike, I don't do him. Spare me. I haven't tried any Rabbit, but the ones I've tried have hurt my head in bad ways. They almost turned me off novels.

A friend just recommended Flaubert's Sentimental Education. Digging into that now.

Post-feminism: Hell hath no fury?

2006-05-15T21:59:00.000-04:00

Three quick essays on feminism: from Mary Ann Glendon, a claim that no institution has done so much to benefit women as the Catholic Church; from City Journal, a review of the Mommy Wars and whether to be a housewife is to be subservient; and from Catherine MacKinnon in the (London) Times, a discussion of feminism and post-feminism.

A copy of Stith's crim law final exam question...

2006-05-15T21:56:00.000-04:00

...seems to have found its way over to the Volokh Conspiracy. It looks a little messed up by the telephone game, though. VC is a conspiracy, indeed, and this is the overt act we needed to prosecute.

A few quick reactions to Bush's immigration speech...

2006-05-15T21:51:00.000-04:00

...from around the blog world. Instapundit has a roundup.

Jaroslav Pelikan dies

2006-05-15T21:20:00.000-04:00

The NYTimes reports that "Yale professor Jaroslav Pelikan, one of the world's foremost scholars of the history of Christianity, has died of lung cancer, his son said Monday." He was 82." He was a convert from Lutheranism to Eastern Orthodoxy, and a winner of the Kluge Prize, sometimes called the Nobel for the humanities. His most well known work, satisfying Mark Twain's definition of a classic, is The Christian Tradition: A History of the Development of Doctrine. Rest in peace.

Bush to talk on immigration tomorrow

2006-05-14T21:13:00.000-04:00

To celebrate being able to make short posts without leaving big screen gaps because of a template error, here's a quickie: Bush will be pushing his bracero program tomorrow in a major speech. The NYTimes gives a somewhat positive spin on this. We'll see what else comes out of this opportunity. The Washington Post has a slightly darker view, emphasizing stiffening the border guards, and also discusses backlogs in deportation proceedings, leading to the frequent release of detained illegals into the US.

Ashes to ashes: the mind-body problem and jurisprudence

2006-05-14T11:23:00.000-04:00

After a recent funeral, an extraordinary just-finished undergrad, Sam, was talking with me about life, and death---and when life began and ended, and when death began--and ended. We talked about a lot of subjects, but each conversation circled around mortality like a vulture; and eventually each discussion touched on the mind-body problem, on which the conversation reverently but temporarily alighted, only to begin circling again.

Since then, I've gotten into several discussions that have ended similarly. While the aforementioned young'un did appreciate the magnitude of the problem, the more recent chats have been full of optimism, which worries me. The glass is half-empty, it seems to me. As Thomas Nagel says in "The View From Nowhere," a solution to the mind-body problem would "juxtapose the internal and external or subjective and objective views at full strength," and would constitute a "world view." Such a solution seems far off; and sometimes this distance, ironically, protects us from ourselves.

I write at some length because the conversation with Sam was quite poignant in its circumstances, and for some reason the question of the external and internal points of view seems to recur in epistemology, Hartian jurisprudence, and the idea of the soul and the resurrection---the last of which was an especially pregnant topic. We all want to obtain this world view, because it would solve so many problems of meaning.

Of course, sometimes perplexity can embody more knowledge than any
purported solution to these problems of freedom and morality. Traditionally in some oriental modes of thought there are four possible answers a guru may give to a student's question. Yes, no, it depends, and silence. In a commentary on koans it is said:

Silence is used when the disciple needs to reflect further on the question itself. Not all questions are validly formulated; not all of them help deeper exploration of the issue; not all of them arise out of genuine concern to know. The guru’s silence sends the disciple back for further reflection. At other times the guru maintains silence because the question is on a matter beyond verbal response or intellectual exploration. The only assistance the teacher can give is to enable the disciple to have the experience necessary to know the answer for himself.

Right now it seems to me that physicalism, functionalism, and the particular brand of sodden ignorance being hocked by the shyster Daniel Dennett---admittedly a shyster much smarter than me---it seems to me, I say, that all these are like the banging of drums to scare away knowledge.

The basic tension is between the objective view and the subjective view. This has only been brought out as physics becomes more imperialistic (and, with postmodernism, we also enter a postcolonial phase where physics is back-colonized by the disciplines it used to tyrannize). First we notice that our subjective perceptions are caused by the actions of the external world on our sense organs, organs which are themselves physical. [[[continue reading...]]] So the physical properties that cause the red-experience in us,--cause us to be appeared redly to--, not causing such experiences in other things, must be detachable from their perception-causing functions. Then, what is the true nature of things in the external world, not the phenomena, but the noumena? We don't just want to stop thinking of the external world as it appears to us, but we stop thinking in terms of perceptions at all, and move to, as Bernard Williams has called it, the absolute conception of reality. ("Ab-solver," loosened away from.) This is the view from nowhere. This is the scientific method, the most powerful machinery for discovering truth every invented.

The problem is then when we try to understand our own perceptions using this scientific strategy. Once we've fixed on the world as a physical thing, free of subjectivity, how can we explain our experiences? Nothing else in reality seems to have experiences. Matter does not have mental states. There is no indexical, nothing irreducibly personal and oriented. Mental states have the fundamental property of being about something else, of tending to another, of intentionality. A concept or percept points outside itself, representing or containing its experiential object. Physical things are just there. They don't possess intentionality. Seeing red is different, and is just very odd. The discussion of intentionality was retrieved---in the postmodern sense---from the Scholastics by Franz Brentano in the 1870's: "This intentional in-existence is characteristic exclusively of mental phenomena. No physical phenomenon exhibits anything like it. We can, therefore, define mental phenomena by saying that they are those phenomena which contain an object intentionally within themselves." This is just a fancy way of saying we experience things. And the objective point of view has no way of accomodating this.

It is perfectly possible for me to imagine you as a "zombie." No offense. You could function quite well as a mere hulk of mass: you could even cause your physical vocal cords to jumble the air. The sounds "I am not a zombie" could come out, and you'd still be a zombie. But when I hear it, and I experience those sounds and interpret them, I know that I, at least, am not a zombie. Experiences are private, so I can't be sure, but I suspect you're not a zombie, and are in fact a lot like me. But my observations of you are fairly consistent with you being mind-less---if you don't believe this, perhaps you will when a computer passes the Turing test. But my observations aren't consistent with me being a zombie, because I have observations. A physicist can study everything except himself.

Keep in mind that the assertion that the mental and physical worlds are, by our present understanding, irreconcilable, does not necessarily imply that you could, say, have a mind without a brain. Most philosophers believe that the mind supervenes on the brain: that mental states need, at least, physical states. They just aren't reducible to them, because any reduction we can think of does violence to the fact that we have experiences. A truly excellent introduction to this topic---rigorous, but without the ploddingness that normally characterizes analytical philosophy---comes from Michael Huemer, a philosophy professor at UC-Boulder, and an old friend of Bryan Caplan, a Princeton economics grad student when I was studying physics there. I should note that John Searle's The Mystery of Consciousness, while not solving any of these problems, seems to me to at least begin to grapple with the biological nature of consciousness. Relatedly, I think the analytic trend dangerously neglects, despite their name, the Aristotelian realization that the four causes (material, efficient, formal, and final) are organically related, and are separable only analytically and not in reality. Aristotle's psychology truly is a hylomorphic unity. Finally, I should point out a book I'm about to pick up, Karl Popper and Sir John Eccles's The Self and its Brain. Teaming a famous epistemologist having strong pre-Socratic tendencies with a Nobel-prize-winning devout-Catholic neurobiologist and philosopher: what more could you ask for in a book?

G.K. Chesterton once said that the materialist, not believing in a soul, free will, or true mental states, must dogmatically deny admittance in his theory to even a single ghost of immateriality. The person who believes in mental states can admit that the physical world is the root for 99.99% of the causes in the world: he simply maintains a silence about the meaning of his internal reflections on the slight, miraculous remainder. Who is more scientific?

This has been a long slog. But so many things keep circling back to this topic. The question is: will the vultures be left to feed in peace, or will they eventually be scattered by a soul's stirrings?

I'll try to relate this to the internal and external points of view of Hart's The Concept of Law some other time.

Evolution and the history of alphabets: "A star shines on the hour of our meeting"

2006-05-14T09:48:00.000-04:00

The world's alphabets look pretty radically different at first glance, but if you squint there seem to be similarities. Of course, there are obvious regularities between different rune systems designed to be stamped into hard materials, from cuneiform to various forms of runes. Here are runes from Scotland, Turkey, and ancient Phoenicia, respectively:

But even with script alphabets, a new paper claims that there are underlying regularities with deep significance: the alphabets replicate the patterns in natural scenery. Our brains are evolutionarily programmed to respond to these particular topological configurations:

The paper, "The Structure of Letters and Symbols throughout Human History," is by Changizi et al., and is found in this month's American Naturalist.

[I read "somewhere" (how do you bluebook that cite?) that frogs's brains, for example, besides being very tasty, have been monitored by bored scientists as various patterns are shown to the little froggy spectators. Different simple line-structures excite very particular locations in the brain. It's as if frogs respond more to the edge-structure of the external world than allowing the literal morphe, or metaphysical form, to migrate into their little froggy brains. (Take that, Aristotle!) Similarly, collared lizards do not respond to thin vertical lines: it's not evolutionarily useful, since they basically hang around in waving grass all day long.]

The authors consider over 100 writing systems old and recent, and work to eliminate the possibility that the shape of alphabets is motivated more by the desire to minimize pen-strokes. For example, they study modern commercial brand symbols, which are printed, not hand-drawn, and thus have no simplicity requirements, and find that the symbols strongly resemble the topological configurations that humans are likely to have found in primitive environments.

A brief, somewhat poorly executed report on the paper was written up by a reporter at the Telegraph. If alphabets have evolved in response to our evolution, this makes me wonder: do created alphabets also satisfy these isomorphisms? They might: maybe they're created to be beautiful, and beauty reflects natural topology. Or maybe they're not subject to evolutionary pressures, and so they may fail to conform. Either way, I think the most beautiful writing system is pretty clearly Tolkien's tengwar elven script. I used to be obsessed with these flowing curves, writing notes to myself during high school. Ah, my extreme youth...

Prove all things, hold fast that which is good

2006-05-14T01:55:00.000-04:00

I am proud to say that I was quoted a while ago by the Yale Daily Planet--for which, btw, Clark Kent used to work--on the Kiwi Camara controversy. Someone just pointed this fact out to me, and what I said. My gut feeling is to deny saying any such thing, but the reported statement's sheer incomprehensibility (1) means there's really nothing to deny, and (2) makes it pretty clear that it was indeed I that said it:

This made me feel that we're a long way away from having any serious reconciliation about the issues if a single phrase in a student outline can uncover such venom," he said. "For me, it seems like the free speech value outweighs the need for the University to make clear that it disproves of its speech, because that should be clear from the get go.

I think the words "get go" here are especially revealing. Of something.

I agree with the first part: the fact that Kiwigate would lead to someone emailing a picture of black folks being lynched to the entire YLS community---comparing Kiwi's one word comment on Shelley v. Kramer to blacks strung up and then burnt half-alive---certainly does make me think we're an infinity away from any resolution of the "race issue," since we can't even discuss it. Good God. I also agree with the get-go part. Doesn't anyone believe anymore in John Milton's areopagitic idea that good ideas win out if we let people talk? Hasn't Habermas updated this effectively enough to make it okay for the neophiliacs to endorse it? Are we going to destroy free speech for fear that it will destroy itself? The idea that a prior commitment to publish an unrelated academic paper would be abrogated---and with its abrogation a "teachable moment" missed out on---really tests one's faith in human forgiveness as the fundamental source of progress. As Orson Welles said in Compulsion, an anti-death penalty movie, "It's taken us such a long time to get even where we are..."

John Milton on criminal law and free will

2006-05-13T21:21:00.000-04:00

. . . They therefore as to right belong'd,
So were created, nor can justly accuse
Thir maker, or thir making, or thir Fate,
As if predestination over-rul'd
Thir will, dispos'd by absolute Decree
Or high foreknowledge; they themselves decreed
Thir own revolt, not I: if I foreknew,
Foreknowledge had no influence on their fault,
Which had no less prov'd certain unforeknown.
So without least impulse or shadow of Fate,
Or aught by me immutablie foreseen,
They trespass, Authors to themselves in all
Both what they judge and what they choose; for so
I form'd them free, and free they must remain,
Till they enthrall themselves. . . .

John Milton, Paradise Lost, Book III, starting line 111

Who will be the world's one and only source for Fafblog now?

2006-05-13T19:32:00.000-04:00

Where has Fafblog gone?

And who is Fafnir, anyway?

Incidentally: what are the ethics of unmasking bloggers who are trying to remain secret? (A friend of mine thinks he knows who The Manolo is, after doing a lot of work.) Is it okay if you disagree with the blogger? What kind of a sucky self-serving rule is that?

Tom Waits without the tunefulness: Wooden Wand

2006-05-13T19:07:00.000-04:00

If you like Tom Waits's clanking pipes, screeching sounds, and dark ambience, and would like that music even if Waits's legendary Frito-Lay gravelly voice weren't chanting lyrics o' doom, you may want to check out Wooden Wand. Their music sounds like something you might hear while wandering through the woods of the Blair Witch Project.

Wooden Wand's most recent album, "Gypsy Freedom," has been described as "experimental noise folk" by Pitchfork Records. If Kurt Weill's Threepenny Opera on drugs (I mean more drugs) sounds marketable to you, give Gypsy a listen.

[Also: below, I forgot to mention ex-Beta Band frontman Steve Mason's new album, King Biscuit Time: "Black Gold".]

The stoppable force meets the movable object

2006-05-13T18:59:00.000-04:00

The Royals brief tangle with success has ended: they met a slightly less-horrible team, and rolled over. They're down 9-1 right now to the Bal'mer Birds. This gives the O's their first series victory in their last seven tries, if I heard correctly. The Royals team ERA is about 6.5, the worst in the majors. Think what this means: they need to score 7 runs to win the average game. This places a high demand on the worst offense in the American League. Albert Pujols, single-handedly, has about as many homers as the entire Royals squad.

Someday statisticians will study how the Royals managed, in the first decade of this century, to take sadsack inability and turn it into stretches of awful baseball that would become famous throughout the world. (Wearing a KC hat, I've been mocked in Equador and Singapore for being a Royals fan.) Oh, wait, statisticians already have adopted them.

Ravel's Le Tombeau de Couperin: the difference between appreciating and playing music

2006-05-13T13:33:00.000-04:00

I got a chance to touch a piano for the first time in a long while recently, and the first thing I tried to play was the slow third movement from Ravel's Homage, the Forlane. I had been listening to Ravel and Debussy recently for some reason, and the notes came back after fiddling, and I remembered: there are interior spaces you can't hear, but only feel if you are playing. Ravel had small hands---he could span an octave only with difficulty. And so his piano music is often compressed on the staff, with the thumb often striking two notes at once, and the fingers of each hand sometime interlaced together, intimately, getting into each others way, laughingly purposeful, like lovers rolling in bed. In the Forlane, sometimes the entire octave seems almost completely filled with notes, so thickly that you can interpret a chord in many ways, moving which note is the root around in your mind and feeling the keys assume different moods and relations. These interior notes of the Forlane give the song a mystery to the ear, but love is best appreciated as a lover. Sight and sound are senses we can share with the whole community, but touch can be shared at most with one other. The effects of how much pressure one chooses to apply to all those dissonant second intervals may be audible, but the internal cause is known to no observer, but only to the lovers.

"Back in your old neighborhood, the cigarettes taste so good": new albums from The Strokes, Neko Case, Secret Machines, etc.

2006-05-13T13:07:00.000-04:00

Ryan Adams "29": one song for each of his years in his third decade of life. Building and developing and screwed up, just like him, and equally great. Voices and Carolina Rain and Night Birds are especially strong.

The Strokes new "First Impressions of Earth": not as good as "Is This It." But what is?

Already talked about Cat Power's "The Greatest." More listenable than her usual.

Mark Knopfler (of the Dire Straits) collaborates with Emmylou Harris on the new "All the Roadrunning." Some good, some not so much. All with Knopfler's cinematic scoring sensibilities (he did "The Princess Bride") and boogy-ing guitar, and Emmylou's wailing.

Franz Ferdinand's "You Could Have It So Much Better": just got around to listening to this album from last year. Very good. Why is their eponymous album still getting so much play when this sophomore effort is even better? Can we stop playing Take Me Out every day now please?

I don't think I'll ever love The Secret Machines as much as when I heard their opener off of "Now Here is Nowhere," First Wave Intact, live in DC. Its locked-in drum and urgent launchpad-like guitar grunts made everything disappear almost as effectively as the opening dissonant clockwork on Interpol's "Antics," untitled. Their new album, "Ten Silver Drops," is a great blend of psychadelic pop and power pop. We'll see after I've listened to it more.

Neko Case, of the New Pornographers, has another new solo album, "Fox Confessor Brings the Flood." It's as good as everything before it. Why would you not listen to this right now? I think Neko is Patsy Cline and Johnny Cash's illegitimate love child; she is like Patsy singing a Cash murder ballad. She is like Marcia Ball with reverb and a slide guitar. Has red hair ever found expression in a wail so perfectly before?

Built to Spill's "You in Reverse": It has a cover of Neil Young's "Cortez the Killer"---and it's better than the original. Great album from the originators of indie.

The Sounds new album, "dying to say this to you," may not be the best recent release, but it certainly has the best cover. If you think Sahara Hotnights, another Swedish punk/new-wave get-up, was a good idea, you might dig this. Also see The Gossip's new effort, "Standing in the Way of Control." This album is for those who want to turn the female-vocal sexymeter up to 11.

Alasdair MacIntyre's influence on Tolkien: antiquity, meaning, and "a tradition"

2006-05-12T23:15:00.000-04:00

A man inherited a field in which was an accumulation of old stone, part of an older hall. Of the old stone some had already been used in building the house in which he actually lived, not far from the old house of his fathers. Of the rest he took some and built a tower. But his friends coming perceived at once (without troubling to climb the steps) that these stones had formerly belonged to a more ancient building. So they pushed the tower over, with no little labour, in order to look for hidden carvings and inscriptions, or to discover whence the man’s distant forefathers had obtained their building material. Some suspecting a deposit of coal under the soil began to dig for it, and forgot even the stones. They all said: 'This tower is most interesting.’ But they also said (after pushing it over): 'What a muddle it is in!’ And even the man’s own descendants, who might have been expected to consider what he had been about, were heard to murmur: 'He is such an odd fellow! Imagine his using these old stones just to build a nonsensical tower! Why did he not restore the old house? He had no sense of proportion.’ But from the top of that tower the man had been able to look out upon the sea.

J.R.R. Tolkien, "Beowulf: The Monster and the Critics," 7

Of cabbages and kings: catholics and censorship

2006-05-12T22:19:00.000-04:00

Interesting posts from the Volokh Conspiracy on the cryptic words of Francis Cardinal Arinze: "So it is not I who will tell all Christians what to do but some know legal means which can be taken in order to get the other person to respect the rights of others." Arinze does indeed seem to be advocating censorship. However, another statement I think has been unfairly represented as a threat to run riot:

Those who blaspheme Christ and get away with it are exploiting the Christian readiness to forgive and to love even those who insult us. There are some other religions which if you insult their founder they will not be just talking. They will make it painfully clear to you.

This is, at the least, open to interpretation. He seems to be clearly referring to the recent Danish cartoon Muslim riots. (It would be unfair, by the way, to predicate the cartoon violence to Muslims broadly: Muslim religious and civic leaders worldwide condemned the rioting, and surely only a small number of Muslims were directly involved.) But by referring both to the Christian duty to forgive (even if with frustration in his tone), and by suggesting legal action above, I don't think he can easily be stuck with the charge of inciting riot. Although it is possible to read his statement that way. One of the few quasi-defenders of Arinze has been Father John Neuhaus at First Things, who in the process of making a couple of good points waffles back and forth rather a bit too much.

Since people complain that those in an association often do not condemn the errors of the leadership, never let it be said that an Irishman didn't buy you a drink, or that a Catholic didn't say a Cardinal was wrongheaded to suggest censorship as a means of dealing with criticism. Arinze is wrong.

The web site Catholic Heirarchy has more details than you can shake a stick at on Arinze's position in the Catholic Church. (It is indeed quite high.) He is Prefect of the Congregation for Divine Worship and the Discipline of the Sacraments, which basically takes care of the details the Congregation for the Doctrine of the Faith can't be bothered with. If this sort of stuff seems interesting, you may want to look at the history of the rather amusingly titled Titular Sees, which are conferred on dioceses overtaken in partibus infidelium:

It is the custom of the apostolic see to confer on these bishops the title of one of those churches which in days past flourished with the splendor of virtue and the progress of religion, even though as a result of the changes and ravages of time they may now have lost their ancient resplendent glory.

History weighs heavily. On the other hand, keep in mind that history doesn't rhyme, but it repeats itself: the ancient loss of Christian territory to Islam (especially in Africa) is reversing itself. Every year, six million Muslims convert to Christianity.

"Dying Boy Sent to Cheer Up Royals"

2006-05-12T22:18:00.000-04:00

Two recent articles by Jeff Passan on the Royals. (Why does he write so much on KC? He used to be the national baseball reporter for the Kansas City Star.) First, discussing the fan who, despairing of the Royals, decided to auction off his loyalty on eBay. This is pretty despicable, I think. Marriage and fandom are for life. This does not stop me from taking a concubine in the Mets, however. You're allowed to have one team in each league is my theory. The second is a penetrating look into the life of a general manager of a team that, simply put, is trying just to avoid losing 100 games each year. Alain Baird has to keep hope up: "If I felt there was no light at the end of this, I wouldn't do it. I have to believe it." Passan mocks the horrendous error of Kerry Robinson against the ChiSox on May 7th: "In the fourth inning, Joe Crede hit a fly ball to deep center field. Robinson climbed the wall to grab it. The ball landed – on the warning track." Manager Buddy Bell's comment: "Never seen that." Baird sees his wife only 30 days a year. He lives for baseball. But he had a 4 and 20 record a week ago. Passan has also savaged the Royals for giving the ball to Jose Lima more than 30 times in 2005, when he set the record for worst ERA of any pitcher with that many starts---6.99.

The Royals have picked up a bit in the last few games---they've won 4 of their last 7, and only lost tonight by one run---but it's unclear what that means. After all, the Royals ripped off a 19-game losing streak last year, which even for a team as bad as KC is statistically improbable. This feat even caused a team of statisticians at UC-Riverside to adopt the Royals as a freakish mascot. Maybe we should let the fan who auctioned his loyalty manage the Royals. The results would probably be the same.

Lieberman, Catholics, and Plan B

2006-05-09T13:38:00.000-04:00

Thanks to the Yale Law Students for Choice for alerting us to this piece of blogging brilliance: apparently Lieberman has just come out in support of Catholic hospitals that refuse to give women Plan B (the morning after pill) and suggested that women just hop on over to a non-Catholic hospital if they really want it. I'm fairly certain Lieberman has never had to go through the nightmare of a possible unintended pregnancy after having birth control fail or being raped, and I bet he hasn't spent a lot of nights walking through the secure, crime-free cities and towns of his lovely state, but it's so nice to see that even though he has no idea what it would be like to need the morning after pill, he's still thinking of us women.

The Opera Buffa of Italian Fascism: soccer and politics

2006-04-30T18:02:00.000-04:00

Those who can appreciate the old, favorite joke about Italy---that their language has 14 tenses, but two can only be used while retreating---will be interested in the new biography of Mussolini and the Italian people by Bosworth, Mussolini's Italy: Life Under the Fascist Dictatorship, reviewed by Wheatcroft in the Washington Post. Why was Italian fascism never as bad as Nazism or Communism---less totalizing, less competent, less anti-Semitic, less attractive to both the average and the intellectual Italian? The answer seems to what Neuhaus first described, following Tocqueville, as "mediating institutions" that insulate the individual from megastructures such as the state and the international corporation: the family, community organizations, churches, local artistic ventures, and so forth. In this way, the Italians, through their lack of organization, are similar to Americans in their "diversity of institutional ways in which [they] have traditionally addressed human needs."

Even sports can come between a poor Duce and his desired nationalism. Football (soccer), while exploited as effectively as possible by Mussolini, generally caused more regionalism than it subverted in Italy, even forming, as Martin writes in Fascism and Football, an "outlet for the old provincial grievances that fascism has never tolerated." One Italian politician recommended putting an end to football because of its "idiotic localism." (But see this Spiegel article on Paolo di Canio's fascist salue and the Roman mayor's bringing of di Canio together with Holocaust survivors; see also this depressing Slate description of Lazio.) The Germans under Hitler much more effectively transformed the 1936 Olympics and the 1938 World Cup into referenda on racial superiority politics, as shown by the excellent BBC documentary that aired just a week ago, Football & Fascism. (I know little about Franco and his association with Real Madrid.) Wheatcroft also mentions the murder by fascists of Ottavio Bottecchia, the two-time Tour de France winner, without noting the broader anti-fascist trends in Italian cycling of the time.

It is good to keep in mind how wicked Mussolini was, and how much madness il fascismo generated. But there is something to the claim that the pre-modern centrality of family life in Italy, and the pre-modern strength and sensibilities of the Catholic Church, made this infection less severe than in Germany. (Why would not the Orthodox Church in Russia have been more successful in mitigating Communism, given the importance of family and church there? There may be a theological or cultural explanation for this, but it seems likely that the sheer amount of time the Commies had to decimate the Orthodox Church might be the most significant fact. Take a look also at Hammer and Tickle, exploring the Orwellian idea that in a Communist society every joke is a tiny revolution.) While coming too late, the Vatican's distaste for fascism culminated in 1931 in the encyclical Non Abbiamo Bisogno, condemning Mussolini's interference with Catholic activities, and reiterating that placing the state above the duty to God is heresy. These difficulties parallel the confusing relation of the Protestant churches in Germany with Nazism, with both Niemollers and collaborationists, discussed by Richard Steigman-Gall in The Holy Reich. Interestingly, the Catholic Church was in opposite situations in Germany and Italy, with German Catholics mostly allied with Weimar socialists and opposing Hitler's rise, while the fear of socialism in Italy led the Vatican to be too friendly to early fascism. Strange.

Income inequality: Becker and Posner

2006-04-30T18:01:00.000-04:00

Check out the posts by Becker and Posner. Forget envy for a second: one problem with economic inequality is the fact that the method by which poor families interact with the world may be qualitatively different than that of rich folks, and this qualitative difference may persist even if the poor are getting richer. (It seems clear, btw, that the poor are indeed getting richer; also, the gap between the races is closing, and the same for the gap between the sexes. Growing inequality, claim Posner and Becker, is largely due to differences in education.) A class of situations where income inequality causes objective dislocation even to better-off poor is the introduction of a new technology which enables a shift in lifestyle that the majority, but not the poor, can adopt, with this shift then isolating the poor. Cars and computers are good examples. Even if the income of the impoverished rose during the middle periods of industrialization, a typical poor person still may not have been able to afford a car; and the introduction of the car on a wide scale changed cities and opportunities in ways that the poor could not easily deal with. An argument can be made that government policies---federal support for single-family homes (through enabling tax deductions for mortgages and real estate taxes, encouraging suburbanism), federally-subsidized commuter routes, and federally-financed urban renewal---effectively isolated the poor in inner cities, which then collapsed from lack of attention and an implosion of social values. In America, the poor should not be experimented with to see if their cultural norms are strong enough to create strong communities without the presence of a middle-class.

The typical sequence of arguments is poor-getting-richer rebutted with increasing-income-inequality rebutted with envy-shouldn't-be-taken-into-account rebutted with yes-it-should rebutted with nyah-nyah. The fact that income inequality structurally divides America through a discrete jump in the accessibility of certain goods at certain incomes---a structural division that affects the poor because the majority's access to the good isolates the poor, whose lack of access persists despite the poor getting richer---can help enrich this discussion.

Troublemaker moves on

2006-04-29T20:15:00.000-04:00

A teacher who brought back the natural joy that curiosity had when we were young, a sports fan who would call every few plays during Steelers games, a friend who was so sick she sometimes needed help walking her dogs, a laugher whose jokes meant public decency was in danger but fun was near, a person whose gambling habits you were mildly concerned about but who seemed to have so much fun it was hard to think of her not playing craps, a plainspoken teller of the truth, a fan of Atlantic City who lost her mom there, and a lover of life who raised her son Dave to be the same way... Rest in peace, Terry.

Decretals and Extravagants: Catholic Church canon law

2006-04-28T23:53:00.000-04:00

While not-studying for the Bluebook exam (doing a sourcecite for the most boring article ever, in fact), a friend and I spotted under Section T.2, Foreign Jurisdictions, p.258, a section for citing to documents of the Catholic Church. Here are some examples:

Gratian (c. 1140)
. . . . . . Part 1 --- D.33 c.1 (d.a.)
. . . . . . Part 2 --- C.9 q.3 c.1
. . . . . . Part 3 --- De Cons. D.2 c.84
Decretals of Gregory IX (1234) --- X 3.24.2
Decretals of Boniface VIII (1298) --- VI 1.11.1
Constitutions of Clement V (1317) --- Clem. 3.5.7
Extravagants of John XXII (1316-1334) --- Extrav. Jo. 14.3
Common Extravagants (1261-1484) --- Extrav. Com. 2.1.1
Codex Iuris Canonici (1917) --- 1917 Code c.430, para. 1

Now this raises many questions. First of all, what the hell? Does this make any sense at all? Well, that's really the only question.

I confess to not having known anything about this, so I consulted 20 Legal Reference Services Quarterly 99, "Roman and Canon Law Research," by Ms. Diamond. Very interesting. Here are some answers to my question above. Especially, why the mismatch of roman numerals?

Gratian was the most systematic compiler of early canon law (such as papal bulls, writings of Church fathers, and the legislation of Church councils). His work is the Concordia discordantium canonum, or the concord of the discordant canons, or simply the Decretum of Gratian. Here Decretum just means a series of decrees. The three parts are the Distinctiones, Causae (cases), and the Tractatus de consecratione, abbreviated by D, C, and De Cons. Each is divided into quaestiones and capitula, or questions and canons, and might have dicta, or commentary by Gratian. This explains the Gratian parts, above.

Next up: what is a Decretal? A Decretal is a papal decree, usually giving a decision on canon law, which are then collected in Decretals, which are haphazard collections of whatever was on hand. The five best known Decretals were the Quinque compilationes antiquae, or Five Ancient Compilations. Gregory IX organized these books for the first time into the Liber Extra. Why are the Decretals of Gregory IX written "X"? I have no idea. I genuinely suspect it is a joke on the first syllable of extra. Pope Boniface VIII re-collected all works since Gregory IX in a sixth book to add onto the quinque, and thus it is Liber Sixtus, and abbreviated VI. The Extravagants, literally "outside-wanderers," are add-ons to these six books; the Common Extravagants were well-known but unpublished decretals.

The sheer complexity of this caused the Church to Justinianize the law again, organizing it and promulgating the 1917 Codex. This was superseded by the 1983 Codex, which is still in force. And that's how you cite to Catholic Church stuff.

Heidegger's influence on Aquinas: "Someone just needs a hug"

2006-04-26T15:42:00.000-04:00

I didn't know whether to call this post a Heidegger pushback or a Heidegger loveslap. It seems to me, from just reading the Letter on Humanism---very, very interesting, but perhaps for right now enough Heidegger for me---that Heidegger is too pessimistic about the history of metaphysics. Heidegger sees the modern condition as one of utter forgetfulness of Being. I do not claim that the most important revelations about Ek-sistence are not yet to come: but when they do, they will build off the enduring insights of the ancients into the transcendentals and the medieval transition from natural to sacred theology in Thomas Aquinas.

The act of existing and the fact of existence are central to Thomist thought: Being is superintelligible, the font and upwelling of all intelligibility, even though it can be the most difficult concept to grasp. Jacques Maritain, in speaking of Thomist thought, has described perceiving Being as an "achievement" (Distinguer pour unir ou les degrés du savoir: "Distinguish to Unite, or, The Degrees of Knowledge"), a sort of supernatural grace in suddenly contemplating the presenceing of a blade of grass, in being awed by what is the most obvious and thus, at first, the most hidden. Thomas also notes that the beginning of a demonstration of Being can be had by realizing that there are immaterial substances as well as material ones, and thus something must underlie even substance. Without the realization of Being, the Philosophy of Nature would be the king of the disciplines: this is positivism, because it lacks access to the natural theology of the transcendentals.

Metaphysics is more than the mere esse ut primum cognitum, the mere vague grasp that something must be common to every thing. It is the view of Being as transcendental, esse inquantum esse, as not merely being the floor underlying other things like matter and color, but as constituting every thing that rests on the floor as well, whether that thing is a substance, genus, species or accident. Being shatters the heirarchy and categorical priorities of existence, and is thus the true transcendental. Being gifts itself into the green of grass as much as it does into the grass's matter or essence. The essence of grass is made up of Being. For this reason, existence precedes essence for Thomas, despite Sartre's claims. In fact, the term existentialism was first applied in the Middle Ages to Thomas, to distinguish from the later Scholastics who took Plato's Ideal Forms too literally.

On this note, Thomas incorporates the insights of both Neoplatonic transcendentalism and Aristotelian dualist metaphysics. For Aristotle, form (essence) is actuality and matter is potentiality; for Aquinas, form and matter are both potential, to be filled with the transcendental infinity of Being. Similarly, potentiality does not precede act in time, as it did for Aristotle. In Aquinas, ens, essence, draws its power and meaning from esse, existence, as everything must. Essence, in fact, like everything that is not Being, is a limitation on the explosiveness of Being. Thus, Aquinas does not dwell in forgetfulness of Being: Gilson remarks accurately that Heidegger's Sein and Seiende are mirrored by the full theory of Aquinas's esse and ens. Aquinas's metaphysics is truly an aletheiology, an un-forgetfulness.

With Thomas's treatment of the transcendentals, adding Platonic convertibility to the basically-sound Aristotelian metaphysics, he fully and completely grasps natural theology. But Heidegger wants something more: he needs something more. This is wonder. And the modern world finds it too easy, perhaps, to study Thomas without understanding his profound Christology. For Heidegger, the definition of man as a "rational animal" is too late: the basic fact of the Event, the Ereignis, has already been lost. Thomas understands this, and observes that man is defined as a rational animal only equivocally; reasoning for Thomas is in fact only a sort of "proper accident," the term itself being a seeming contradiction. Man's essence is not reasoning: the essence is what man is, and reasoning is simply what he does, what distinguishes him from chimpanzees and bananas. If another animal were found that could reason, it would not make that animal, necessarily, a man. For Aquinas, a man is the Image of God. There is some relation to rationality, here, but only secondarily. The Potter has made, not a cup, but an Image of the Potter, and the clay is the Potter Himself, though the Image is not the Potter---for the Image has Being, while the Potter is Being, as best as we can conceive. The proper response to this wonder of Creation is humility and thankfulness. We cannot be proud of being Images, for it is a gift, and even our existence to receive this gift is a gift.

The radical dependence of every thing on Being has huge consequences for Aquinas in each field of knowledge. His theory of truth is powerfully metaphysical, in contrast to the epistemological theories of truth popular these days. As Milbank and Pickstock note in Truth in Aquinas, we do not [[[Continue reading...]]] need to refer Truth to Being, for Truth is a mode of being. Truth is convertible with Being: Truth is equally close to all levels of the metaphysical heirarchy. Why would we need another name, if Truth is Being? Because we are finite creatures: we perceive beings as separate in their Beingness. Truth is a gift to us, as it relates beings to one another and to us through a harmony or analogy of the mind receiving into itself, and becoming, the full Being of the object, its existence and essence. And thus Truth is more than a mere reflection, more than just being "true to the facts." As Aquinas says, Truth is less properly in things than in mind, and our thoughts complete and bring to their full teleological existence God's creations. The tree of our mind's eye is just as True as the tree in creation---and thus Aquinas is a Realist---and in some sense Truer, since we can grasp and realize and perfect the tree's telos, its presenceing---and so Aquinas is some sort of hyperRealist. As Aquinas says in De Veritate, this gift of Truth is "salvific compensation," a boon to us in our divided and fallen state away from God.

This goes even farther: for Aquinas, Beauty may be the final, most perfect transcendental. (See Hunter's Analogy and Beauty: Thomistic Reflections on the Transcendentals, and Waddell's The Hermeneutics of Beauty: Re-reading Thomas Aquinas's De Veritate 1.1.) Truth is a harmony between different modes of being: and Beauty is harmony, proportion, and fittingness. Note that the word aesthetic is from the Greek aisthanesthai, "to perceive." Truth is a perceived harmony, and so every single judgment itself is an aesthetic act. We give glory, and fulfill our Being, by bearing witness to the Truth, and this is the ultimate act of participation in Beauty. This is the beginning of the answer Heidegger must be looking for: Heidegger just needs a hug.

I am trying to find time right now to review Caputo's Heidegger and Aquinas. The discussion there is far more technical and continental than I really feel comfortable with. Caputo approaches Aquinas from Heidegger, whereas I think in the opposite direction. Caputo at the end finds that Thomist thought only partially rises to Heidegger's challenge. I may have something to say about this during the summer. For now, here's a summary. Both Aquinas and, more so, Heidegger have, effectively, claimed that their metaphysics accuse all other theories of being oblivious to Being. Gilson makes this claim historically, noting that each epochal theory tries to encompass Being: the Platonists reduced Being to unity, the Aristotelians reduced Being to substance, from Avicenna to Hegel Being was reduced to essence, etc. Only St. Thomas, Gilson claims, took Being as Being, in all of its primodiality. However, the very distinction between us having Being, and God being Being---that seems to solve the problems of both our separation from God and yet our basic dignity as both gifts and recipieints of gifts---Heidegger attacks as once more sinking into forgetfulness. Heidegger accuses Thomas of reintroducing an ephocal theory of being by dividing between esse subsistens and ens participatum. But it does seem to me that, despite this division, Aquinas does grasp the Geschick, the sending forth of Being in to beings, and the Anwesen, the presence-ing, the overflowing of Being in the moment. The transcendental Being for Aquinas as not something remote and purely universal. It is the most super-present thing of all, and the most active, even as it is the most infinite. I think that Heidegger, unfortunately, has fallen prey to his own true criticism of the history of philosophy, and as Husserl asserts is in danger of becoming a small part of the problem: he is using language as techne. At least, that's the way it seems to me.

"Any sufficiently ancient law is indistinguishable from magic": Jonathan Strange and Mr Norrell

2006-04-26T00:02:00.000-04:00

Everything around us seems at first glance to be imbued with history as much as, or more than, it is filled with purpose: our ears are often deaf to the bells by which a creation selves, but it is our father's toil and blood that visibly smears the soil we have inherited. Heraclitus believed that sight and sound signified the polar opposition of the totality of knowledge--of direct and indirect experience. Those objects that are publicly knowable, as Augustine says, we apprehend through eyes and ears, the two senses whose objects we can share. (See On the way to wisdom in Heraclitus, Kurt Pritzl, Phoenix v.39 n.4 p.303.) Both history and purpose are part of the sensus communis, the common sense integrating human experience, and both give true testimony; but only seeing history's accretion of human activity is a direct witness, while inferring the inscape of a creature's final end is mere hearsay. (Though more Hermetically far-reaching, as sound can bend around the corners of time.)

History and purpose have been intertwined and come undone repeatedly as the plan unfolds, and the truths borne of their trysts persist in orphanages as sayings but are forgotten in ancestry and meaning. This is the subject of Jonathan Strange and Mr. Norrell by Susanna Clarke.

Her observation---that on the one hand we find history, power, law and ambition huddled together, and on the other hand, alone, purpose---she was of course anticipated in. My favorite example is Victor Hugo's L'homme qui rit, The Man Who Laughs. In Part II, Book the First, Chapter VI-VII, the wicked Barkilphedro begs his patroness for the post of Drawer of Bottles, in the Jetsam Division of the Sea Prize Department of the Lord High Admiral's office. It has been many years since a bottle needed to be uncorked: the job "is like grooming a bronze horse." The Lord High Admiral owns things in the ocean which sink (lagan), things which float (flotsam), and things which are cast ashore (jetsam) (--except that the King owns the sturgeon.)

The fashion of casting bottles on the surface of the sea has somewhat passed away, like that of vowing offerings, but in those religious times, those who were about to die were glad thus to send their last thought to God and to men, and at times these messages from the sea were plentiful at the Admiralty.

And their intelligence once had been valuable: the Drawer had the right of humble entrance even into the royal bedchambers. Elizabeth would ask, "Quid mihi scribit Neptunus?" What does Neptune write me? Barkilphedro gets the office when humble entrance is no longer needed for naval goals: he uses its confidence for intrigue. And destruction. The crack between history and purpose is driven through shatteringly.

Clarke's novel is about this shattering, and she observes how our institutions still stand, but are mute. If the stone of a statue is the tangible fact of its extended place in history as a made thing, then the statue's voice, and the features on its face and thoughts in its heart, are the statue's meaning---what the artist who created and fell in love with the statue saw and wanted in his heart for the statue's good. One of the early episodes of the book is about giving statues their voices back, in fact. Clarke uses magic to remind us of the shattered world, because we only laugh lightly at examples we are more familiar with. She writes about an administrative office one step older than the Drawer of Bottles, a little farther along the process of time carrying away our voices and wearing away our faces:

Some years ago his friends in the Government had got him the position of Secretary-in-Ordinary to The Office of Supplication, for which he received a special hat, a small piece of ivory and seven hundred pounds a year. There were no duties attached to the place because no one could remember what The Office of Supplication was supposed to do or what the small piece of ivory was for.

How quaint, we think! But there is the law, and then there is the Law. And when they diverge, there is instability and there is disequilibrium. Clarke starts with a light touch on our own institutional memory---in the literal sense---and our own mortality. But she will shift to the fantastic to drive her point beneath our guard.

Often our hearts, starved for romance, grasp at words, hoping for meaning but at bottom finding only history. By the time Jonathan Strange and Mr Norrell rediscover magic in England, many spells no longer work or are forgotten: "Chauntlucet, Daedalus's Rose, the Unrobed Ladies, Stokesey's Vitrification." A Clarke footnote explains each, with the best for our purpose being:

Like many spells with unusual names, the Unrobed Ladies was a great deal less exciting than it sounded. The ladies of the title were only a kind of woodland flower which was used in a spell to bind a fairy's powers. The flower was required to be stripped of leaves and petals---hence the "unrobing".

Clarke can make the extraordinary ordinary because she has a surfeit of meaning. [[[continue reading...]]] Consider the fairy spell "the doctrine of ancient lights." It creates a force which honors the precious, oldest rays of the Sun--the Sun which in Homer sees and hears everything:

Upon proof of an adverse enjoyment of light, for twenty years or upwards, unexplained, a jury may be directed to presume a right by grant, or otherwise. But if the window was opened during the seisin of a mere tenant for life, or a tenancy for years, and the owner in fee did not acquiesce in, or know of, the use of the light, he would not be bound.

This description of the spell is from the magical tome "Black's Law Dictionary."

We invent, we repeat, we forget; a new mindset gives something that previously seemed natural an ancient feel. Describing the parts of magical spells (e.g., epitome, skimmer, florilegia), Clarke notes:

In the thirteenth and fourteenth centuries fairies in England were fond of adding to their magic, exhortations to random collections of Christian saints. Faires were baffled by Christian doctrine, but they were greatly attracted to saints, whom they saw as powerful magical beings whose patronage it was useful to have. These exhortations were called florilegia (lit. cullings or gatherings of flowers) and fairies taught them to their Christian masters. When the Protestant religion took hold in England and saints fell out of favour, florilegia degenerated into meaningless collections of magical words and bits of other spells, thrown in by the magician in the hope that some of them might take effect.

There are meanings hidden in history, rituals whose very forgetfulness gives them power: in many places, the deliberately-anachronistic solemnity of sealing a document with hot wax and a signet seal overcomes certain legal-defect claims. In Indiana and some other states drawing a scroll next to one's name has the same effect. The consecration of the Host in the Latin Mass is rumored to only take effect upon secret words that a priest may not share on pain of Latæ Sententiæ. This is magic formalism. P. Bourdieu discusses in Ce que parler veut dire how Weber fails to find a division between rational formalism's bureaucracy and magical formalism's ritual. Kafka makes the point more grimly.

History has a claim on us and will kill us all given time, which is plentiful. Meanings that we have forgotten do not forget us: astra fovent animam corpus natura recepit. In a magical story invoked by the Kabbalah numerological symbol "179 F.2d 64," three knights owned three parcels of land. By ancient right, to the origin of which man's memory runneth not, the first knight, Abelard, was bound by great powers to allow the second, Bonaventure, to cross Abelard's land to reach his own. Bonaventure slew Chretien de Troyes, the third knight, and took his lands. Bonaventure built a castle, but the footprint straddled both Bonaventure's and Chretien's land. When Bonaventure tried to use his ancient easement of access to enter his new castle, he found a magical field prevented him from entering those portions that fell outside his original lands, as if the very lands cried out against his crime. Clarke gives a description of a magical court, the court of Cinque Dragownes, which could have easily reached this result (from the District of Columbia Circuit in 1949). The story of the Champion of the Castle of the Plucked Eye and Heart, p. 729 in Strange and Norrell along with the prior description by Childermass, is perhaps a retelling of this case, in a deep way. I will not spoil it here.

The interest the denizens of Faerie take in saints is mentioned several times by Clarke, and is not casual. The saints took us---take us---to new paths "towards the Moon or to the Sun", upwards from history in sentina mundi, dregs at the bottom of a clear glass. Peter Brown notes in The Cult of the Saints:

The rise of the Christian cult of saints took place in the great cemeteries that lay outside the cities of the Roman world...and came to involve the digging up, the moving, the dismemberment---quite apart from much avid touching and kissing---of the bones of the dead, and, frequently, the placing of these [relics] in areas from which the dead had once been excluded.

Norrell brings someone back to life, but a body part is left, like a relic, in Faerie. The established topography---even bodily integrity---of the universe is destroyed by the saints, much as the new magic in Clarke threatens to reawaken old consciousnesses, and the fairies promise (threaten) to tell us the meanings that surround us like dolmens. Strange can have anything he wants upon his first summoning of a fairy, and he says only:

"What are the names of the three magical rivers that flow through the Kingdom of Agrace? Ralph Stokesey thought that these rivers influenced events in England: is that true? There is mention in The Language of Birds of a group of spells that are cast by manipulating colours; what can you tell me about that? What do the stones in the Doncaster Squares represent?"

Meaning is with us always, and history is far away; but history is visible, while meaning is just a whisper. Clarke dims the room so that we can close our eyes and reel like a drunk in the transcendental Being that cycles through Creation. I close with a Clarke description that could summarize the Neoplatonic heirarchy of meaning and history:

Strange walked away and became one of the many black figures on the piazza, all with black faces and no expressions, hurrying across the face of moon-coloured Venice. The moon itself was set among great architectural clouds so that there appeared to be another moon-lit city in the sky, whose grandeur rivalled Venice and whose great palaces and streets were crumbling and falling into ruins, as if some spirit in a whimsical mood had set it there to mock the other's slow decline.

If you are bored and find your life meaningless...

2006-04-25T01:31:00.000-04:00

...then this post will likely not help at all. But it will tell you how other people find meaning. Or at least where they find meaning. Valparaiso has a great data set of religious denomination by county---under a class titled "American Ethnic Geography"---that pretty much confirms what everyone knows, but does it in pretty colors. Baptists are in the South, Lutherans make up a little patch in the middle-North, and Mormons dominate Utah and, um, whatever state is above it. Idaho maybe. Catholics are pretty much everywhere else. A good discussion of some of the details is given at Regions of Mind. Nebraska has an especially interesting history, being divided by its German heritage into strong Lutheran and Catholic segments.

My Antonia by Willa Cather springs to mind as a great description of the cultural incomprehension of immigrants, exposed on the Great Plains to fellow expatriates from the Old Country but of different denominations, who realize the odometer of hate and love has been reset. They can choose to share across a gap that three-hundred years of madness back home had made unbridgeable. My family first settled from Germany in Nebraska; in Kansas City, Missouri, where I was born, there was no area where Catholics had a majority district. (In contrast to French-y St. Louis.) Moving to New Mexico for my parents must have been like a German Catholic visiting Spain.

Note the single county in Nebraska that is majority Baptist: that's because there's only one church, and it's Baptist. The most Catholic state is probably New Mexico. The least religious state appears to be Oregon, if I understand the addendum to the Regions of Mind post. There are a few counties where Mennonites or Reformed or whatnots rule. I don't think there are any majority Jewish counties.

Anyhoo: interesting.

Iran defiant on nukes, blah blah: look at the cool picture

2006-04-24T22:39:00.000-04:00

This is a pretty incredible picture accompanying a NYT story I've heard a million times. It took me a while to figger out what was background and foreground and realize it was basically a bad religious painting like my aunt likes. If I see one more picture of a vague mannish shape walking toward the light leaving some dark morass of clutching hands and entering multiple colored circles symbolizing seraphim and principalities and dominions and thrones I am going to toss my cookies. But the cool picture in the permanent exhibit at the American Visionary Arts Museum in Baltimore is way cool, because it's done by a certifiable crazy person. Or maybe that's exploitative. Anyway, I didn't know that the cherubim God is described as riding around in Psalms and Samuel was a nuke.

Universal moral grammar: John Mikhail on Chomsky on morality

2006-04-24T21:53:00.000-04:00

John Mikhail has put "The Poverty of the Moral Stimulus" up on SSRN. In it he compares the universal grammar of Chomsky---by which a child placed in a suitable environment will, without explicit instruction, use apparently innate rules to construct a natural language---to a possible universal moral grammar, in which a suitably-situated child will also construct a "natural jurisprudence" of surprising complexity and intuitiveness.

His examples are startling: without socialization sufficient to account for the results, 3-4 year-old children distinguish between "genuine" moral violations (murder) and "social" violations (wearing pajamas to school); 5-6-olders calibrate punishments with intuitive mitigating factors; 6-7-olders have a sense of innate procedural justice and the right to be heard; children as young as 8 have a rough sense of the doctrine of double effect in the trolley-car problem. See the references to the paper for more.

The basic pattern of reasoning by Mikhail is similar to Chomsky's poverty of the stimulus argument, which shows most children have nowhere near enough teaching to explain the grammatical miracles they pull off. Mikhail analogizes this to the poverty of the moral stimulus: the moral rules the children exhibit are not learned from verbal instruction, or from observed examples. They must be innate. In the same way that the universal grammar must be rich enough to enable children to bootstrap, it also must be flexible enough to deal with significant linguistic variations. The universal moral grammar: same.

The form of the innateness is not dealt with, but whatever form it takes, it already has a name: synderesis. Consider the old joke at Scholastics' expense, in which a naif asks a philosopher why opium puts us to sleep. The scholastic answers: "Opium puts us to sleep because of its soporific faculty." Of course this definitional jonesing is partially incompatible with another accusation, that the Scholastics engaged in angels-on-a-pin speculation about everything without any empirical backing. This is of course true: the Scholastics simply had no tools to make these inquiries meaningful. And they did not appreciate how much needed to be explained, or how much would be possible. They proceeded in a cycle of definitions and guesses. They had mastered dialectic (for God's sake, see St. Thomas's discussion of Aristotle's Topics and Posterior Analytics); they just had not included the material world in their discourse.

So the modern world has learned to ask "Why?" more insistently of matter, and more counterintuitively, and to deploy sharp objects and measuring tapes in trying to get answers. If this rakish modern curiosity could be combined with a medieval docility to truth, and an ancient (or Husserl-ian) sense of man and the methodology of principles, we would get somewhere.

There is much more in this hopeful paper. Hat tip to the Scholastic saint Larry Solum for pointing this one out.

Debussy's influence on Bach: the Mass in B minor

2006-04-24T21:52:00.000-04:00

Has anyone ever noted that the Mass's Sanctus chorus, with its shimmery male voices, overlapping and spread out (a haze of seaspray added by necessity of the Kantian manifolds of Time and Space with a dose of human fallenness and imperfection) and its building brass like proud pillars of some undersea structure---

---outdoes and perfects Debussy's conclusion to La Mer's "Nuages"? Bach is more chromatic, more impressionistic, more worshipful of the great waves of nature and their true Nature.

"Law and Letters": race and gender dynamics of white males raping black women

2006-04-24T14:25:00.000-04:00

If your blogroll isn't so full you need to wait until one goes on the critical list to meet someone new, consider reading Law and Letters, a fine model of the blawg that mixes personal views and legal analysis. See especially her post on the gang rape at Duke and its particular tragedy.

Rumsfeld, transformation, inertia

2006-04-23T00:52:00.000-04:00

Charles Krauthammer, in an as-usual spot-on column in the Washington Post, "The Generals' Dangerous Whispers," criticizes the recent generalissimos for helping to weaken yet another social norm--the traditional silence observed by retired military officers and ex-presidents.

It should be noted that Rummy has been subject to this sort of criticism before. Fred Hiatt in a Post editorial noted as early as Aug. 27, 2001: "The defense secretary was arrogant, out of touch and corporate." But Hiatt admitted he was doing this in the service of transformation, and he had no other option but bluntness; commentors like David Ignatius in the International Herald Tribune on Sept. 3, 2001 expressed exasperation at the brass's "aversion to change."

And lest it be lost on us what the consequences of Pentagon conservativism are, Gannett summarizes a Rumsfeld speech of Sept. 10, 2001:

Standing before several hundred stone-faced defense officials in a Pentagon auditorium Monday, he declared war on the Defense Department's bureaucracy, calling it as serious a threat to national security as the Soviet Union was, and even more "implacable."

It "crushes" new ideas, said Rumsfeld, places 17 layers of bureaucracy between the defense secretary and a front-line officer with an idea, and has so many counsels' offices that a central counsel must monitor what they all do.

Note the date. The resolution came too late, much like the belated Japanese declaration or war given to Ambassador Grew as the smoke cleared from Pearl Harbor. But the idea was exactly right. It is unclear whether Rumsfeld is the best man to lead an active war; I think the Krauthammer discussion eviscerates the generals' arguments that he is not, but that itself is not a positive endorsement of Rummy. I can say, from my fairly limited experience working for the Department of Defense for five years, that he was well respected as an able and tough advocate. Rumsfeld was and is a proponent of restoring military strength and enlistment levels to two-war sufficiency, or, failing that, one war and one stop-action. It's hard to fault him for military underfunding when from the first moment of his appointment he advised Bush to veto any appropriations bill that did not increase spending on manpower. And it's hard to fault his mannerisms when a soft-spoken Secretary of Defense is simply not taken seriously. William Cohen under Clinton had a habit of writing poetry--actual poetry, not Slate-isms--that lost him much military respect, as sadly macho as that might be. Lee Aspin had a "famously unmilitary bearing" and wishy-washiness that made him completely ineffective. (His shoplifting from a Fort Myers base exchange probably did not help.)

As for the political cycle of whispers, and their usefulness as prophecy, it also might be useful for perspective to recall Timothy Noah's Slate headline of Sept. 7, 2001: "Rummy Death Watch No. 3: Possible Replacements Named!" I wonder which Watch No. we are on now.

Finally, the thought of the New York Times interviewing young military officers and publishing anonymously their remarks is quite unfortunate. There is a strong internal debate going on, you can be sure. (And, as the Times shows, the debate strongly favors Rumsfeld.) But these officers know anonymous remarks are inappropriate, and almost certainly against orders; the Times should not excoriate Scooter Libby and then tempt people to become like him.

G. M. Hopkins: inscape and natural kind

2006-04-22T21:20:00.000-04:00

As kingfishers catch fire, dragonflies dráw fláme;
As tumbled over rim in roundy wells
Stones ring; like each tucked string tells, each hung bell’s
Bow swung finds tongue to fling out broad its name;
Each mortal thing does one thing and the same:
Deals out that being indoors each one dwells;
Selves—goes itself; myself it speaks and spells,
Crying Whát I do is me: for that I came.
Í say móre: the just man justices;
Kéeps gráce: thát keeps all his goings graces;
Acts in God’s eye what in God’s eye he is—
Chríst—for Christ plays in ten thousand places,
Lovely in limbs, and lovely in eyes not his
To the Father through the features of men’s faces.

Gerard Manley Hopkins, "As kingfishers catch fire, dragonflies dráw fláme," 1918

For Hopkins's theory of inscape and instress, and their relation to the poem as a whole, see this description. This poem always seems to me a better argument for natural kinds than any argument in Armstrong's Scientific Realism (as good as that book is). The Beowulfian flavor of the poem comes, first, from Hopkins's push from the Norman side of English's parentage to the Anglo-Saxon, and his use of "sprung rhythm" with its irregular stresses; and second, from his Welsh cynghanedd, with its strong alliteration.

Catholic intellectuals: authority and reason

2006-04-19T09:11:00.000-04:00

Great series of posts over at Mirror of Justice on the motivations, and outside perceptions, of Catholic scholars. When such scholars are working in the context of a strong tradition of magisterial authority on certain matters, should they present the best argument within the tradition? The best argument in general, but continuously and explicitly confront their argument with the tradition? Or just have those discussions "internally"? When people perceive that Catholics have certain motivations that the world at large doesn't share, does that undercut their impact? (What about the authorities other traditions recognize, such as political correctness or Marxist theory?)

Check out Eduardo Penalver's first (self-described "inflammatory") post, linked above, and then scroll upwards to follow the debate. The most recent post, as of this second, is by Robert Araujo. He notes the Catholic tradition of the “Two Francises”--de Vitoria and Suárez--who debated openly and freely in sixteenth century Spain. They argued both from faith and reason, continuously annoying the civil authorities by demanding basic rights for indigenous people based on--and seeing little division between--religious truth and public reason. [See, for example, The Catholic Neo-Scholastic Contribution to Human Rights: The Natural Law Foundation, 1 AVE MARIA LAW REVIEW 159 (2003), with which I tormented Genius Pony a few weeks ago.] Humility when interacting with one's colleagues, and with the world in general, is essential, since faith is not a trump card: we do not have the whole of God's knowledge available to us. The Catholic tradition is simply that part of the vineyard which many of us have chosen to cultivate.

Araujo (S.J.) makes many wonderful points. And Penalver himself, too, with his "inflammatory" questioning, is also at the heart of the tradition of the Two Francises. This is an important discussion, since none of us come to knowledge without preconceptual assistance from some tradition.

It is interesting to consider how the Jews have approached this problem, since their intellectual context of course rivals the richness of Catholic history. Disputation is highly valued by the Jews, and thought trends like Hillel duke it out with opposing views to apply the doctrines of faith to updated conditions, and reconcile faith and reason. There is a strong feeling of tension between faith and reason, but little sense that "faith is absurd" by reason's pale, false light. This latter view would be developed by early Patristic writers like Tertullian, and held as a valuable but incomplete strand of thought in the Catholic Church. It would only come into its own, as a doctrinal reflection of original sin, with the Protestant Reformation and Luther's assertion that "reason is the handmaid of the devil."

The Jewish and Catholic heritages are perhaps quite similar in their need to solve the problem of the apparent conflict between revealed truth (especially as passed through an authoritative tradition) and rational exploration. Most Protestant lineages have less trust in reason, and less authority to reconcile it with. (What about Islam?) Surely the Catholics can learn from the Jews, both in generating ideas capable and worthy of influencing the world, and also in generating a rich, uncompromising internal discussion within the family.

Situationalism and virtue: are there any good guys?

2006-04-18T21:56:00.000-04:00

The Model Penal Code, Section 1.02(1), states that its purposes are to (a) "prevent conduct that...threatens harm to individual or public interests," and to (b) "subject to public control persons whose conduct indicates that they are disposed to commit crimes."

This already incorporates some very strong assumptions about human nature and the capabilities of the law. The clause 1.02(1)(b) assumes that people reveal their character through conduct, and (a) assumes that the law can influence the overall situatedness of a decision, its topography of daily decisional utilities, profoundly enough to "prevent conduct" and shape action.

The idea that people have character--that there are virtuous folks and vicious folks and that you can predict based on past observations what someone might do in the future--has been under attack (at least in its stronger forms) for a while from social psychologists. Characterism is derided as committing the "fundamental attribution error": the mistake of assuming that people have strong dispositions that explain their behavior, rather than being largely guided by the situation they (luckily or unluckily) find themselves in. The most famous example of this is the Milgram experiment, in which subjects administered potentially lethal electric shocks to victims in the name of science. The average person in an authoritarian or heirarchical situation switches from his everyday "autonomic" state to acting in an "agentic" state, accepting commands and showing few stable character traits. Evolutionarily, agentic states posed fewer threats to heirarchies than autonomic states, allowing more effective wielding of genic power.

The idea of characterism at the heart of 1.02(1) is implemented in a dozen ways of the Model Penal Code and in criminal law in general: in the doctrine of excuse, and in entrapment, for example. On one definition (Spunaugle v. State, 946 P.2d 246), a crime is excused if a person of ordinary firmness would have also been unable to resist the temptation or duress. This might seem situational; but on reflection it effectively sets a standard level of "virtue" and punishes those people's actions--and only those--which do not rise to that level of character. Similarly, entrapment is at first glance situational: it is a valid defense to say that the police created a situation in which I committed a crime. But, again, the affirmative defense of entrapment requires that the defendant show that he did not have a personality propensity to commit the crime (People v. Calvano, 30 N.Y.2d 199), and so the government can introduce past behavior as a guide to character. [Even after this, certain situational elements remain: if a defendant would normally not have encountered the opportunity to commit the crime (say an undercover cop sells crack to an Amish youth), but the defendant was predisposed to the crime, it is still entrapment. Thus entrapment is described in U.S. v. Hollingsworth, 27 F.3d 1196, as "positional as well as dispositional." But positional entrapment is a hard defense to pull off, as Jacobson v. U.S., 503 U.S. 540, shows: "ready commission of the criminal act amply demonstrates the defendant's predisposition."]

On the situationalist account, the dispositionalism of 1.02(b) is idle hope based on bad folk psychology, and so we are left with 1.02(a), and the awesome need for the law to fundamentally transform all situations into "good" situations, to do the work that virtue and resistance to temptation cannot. The law has only a first order, deterrent effect--enacting an individual threat to each player at each instant--and no second-order effects of building good citizens through a healthy moral ecology.

The consequences of a successful attack on character traits is, of course, the end of the renaissance of virtue ethics, as gleefully predicted by Harman. On the other hand, many have argued that psychology experiments are much like on-screen sex: a version of the way the world works that on first thought seems idealized, and on second thought seems barren of the complications and surprises of reality. Peter Vranas has noted some difficulties in John Doris's (Lack of Character) definitions of what a "situation" is. Pro-situationalism: on the role of situationalism in poverty and the "Republic of Despair," see Leonard Long's Optimum Poverty, Character, and the Non-Relevance of Poverty Law, 47 Rutgers L. Rev. 693. Anti-situationalism: on the normative structure of criminal law and its relation to situationalism, see Husak's Crimes outside the core, 39 Tulsa L. Rev. 755.

Illegal immigration only costs the poor a little

2006-04-18T21:32:00.000-04:00

The New York Times recently had a fascinating article, "Costs of illegal immigration may be less than meets the eye." Not being qualified, I won't comment on the econometrics; but it does seem plausible that illegal immigration has had a 5% or less negative impact on poor folks' wages, rather than the somewhat hysterical numbers like 10-20% batted around. Is this a bit, though, like the argument about Lott's More Guns, Less Crime, in which concealed carry was first asserted by Lott to tremendously reduce crime, and is now held to only reduce crime a little? (Ignore Lott's rather odd foibles.)

While a five-percent reduction in wages is not enormous, it is not chump change--try it yourself. I am in favor of immigration, of simplifying the system, of a bracero program, of an amnesty, against a wall, etc., blah blah. But the fact that illegal immigrants harm the poor less than previously thought, as the article's title suggests, shouldn't blind us to the various structural, and seemingly inevitable, negative consequences of illegal immigration. This includes the need to explain to the most vulnerable Americans the confusing fact that our democracy has placed laws on the book but our democracy is unwilling to enforce them.

"Bruin" and "Renard": proper names, now common nouns, from a fable

2006-04-18T21:18:00.000-04:00

BRUIN:
[a. MDu. bruin (bruyn, bruun) BROWN,
the name of the bear in Reynard the Fox.]

An appellation applied, after the manner of a proper name, to the Common or Brown Bear. (It has advanced so far in the direction of a common noun as to be often written without capital B.)

Reynard the Fox is one of Europe's most beloved folk legends, in which the eponymous character is a peasant-hero outsmarting Leo the King. A couple of quotes that roll off the tongue: "How bruyn the bere spedde wyth the foxe"; "The kynge..saide to brune the bere, syr brune, I wyl that ye doo this message."

States Wikipedia:

The patrimonial French word for "fox" was goupil from Latin vulpecula. However, mentioning the fox was considered bad luck among farmers. Because of the popularity of the Reynard stories, renard was often used as an euphemism to the point that today renard is the standard French word for "fox" and goupil is now dialectal or archaic.

Thus, this story has effectively given the world two proper-to-common animal words. Strange.

Law, violence and alienation: Ralph Pomeroy's "Corner"

2006-04-18T20:16:00.000-04:00

The cop slumps alertly at his motorcycle,
supported by one leg like a leather stork.
His glance accuses me of loitering.
I can see his eyes moving like a fish
in the green depths of his green goggles.

His ease is fake. I can tell.
My ease is fake. And he can tell.
The fingers armoured by his gloves
Splay and clench, itching to change something.
As if he were my enemy or my death,
I just stand there watching.

I spit out my gum which has gone stale.
I knock out my new cigarette --
Which is my bravery.
It is all imperceptible:
The way I shift my weight,
The way he creaks in the saddle.

The traffic is specific though constant.
The sun surrounds me, divides the street between us.
His crash helmet is whiter in the shade.
It is like a bullring as they say it is just before the fighting.
I cannot back down. I am there.

Everything holds me back.
I am in danger of disappearing into the sunny dust,
My levis bake and my T-shirt sweats.

My cigarette makes my eyes burn.
But I don't dare drop it.

Who made him my enemy?
Prince of coolness. King of fear.
Why do I lean here waiting?
Why does he lounge there watching?

I am becoming sunlight.
My hair is on fire. My boots run like tar.
I am hung-up by the bright air.

Something breaks through all of a sudden.
And he blasts off, quick as a craver,
Snug in his power; watching me watch.

This is the meaning of the crime of loitering; this is the danger of the "broken windows" theory of policing. Everyone is on trial, even if you're just taking a cigarette break. There are similarities and differences here with horseback police patrols: both rely on a knight-like positional superiority, but horses have lost most of the menace they held through history, while motorcycles can still have a vicious animality. The community is rent by a goggled invader; it is rent into the innocents who have nothing to fear but are afraid, and the guilty who should be afraid but who want a challenge. This is order without justice; this is courage without love. If you have felt the bloody blush of fear when you see a radar trap, imagine the perception of law's lawless power to someone who has never felt protected, never felt served by these cold outsiders. What happened to the Clinton + Republican Congress community policing effort? Did you sympathize with anyone in this poem?--did you view this as a tragedy with no protagonist?--did you ascribe guilt to the gum-chewing smoker?--

Conversations with A Son, A Daughter, A Nephew

2006-04-17T22:42:00.000-04:00

My son is thirteen and obsessed with the weather, especially thunderstorms and tornadoes. Around 5 am one morning this spring, a huge clap of thunder shook the house, announcing the arrival of the latest storm. From across the hall I hear an excited, "YES!" and then nothing more. That's my boy!

He is finishing up his first year in all regular classes. He has struggled a bit with the transition as he now has to be responsible for everything himself. We learned recently more of his history (he is adopted); he tested with a math deficiency years ago. We already knew he struggled with math as Mom and Dad have struggled with patience in helping him with homework this year. A large part of our frustration is the repetition of the same questions over and over and the same mistakes over and over. This is very evident in the joy of fractions, decimals, and percents and all of the conversions therein. At least once every evening, "Dad, 7/8, that's 1/2 isn't it?" or "90% is 1/2 isn't it?" "Yes, son. In the end, all fractions do reduce to 1/2...and a river runs through them."

My twelve-year old blonde-on-the-inside daughter called home from camp one evening this past week to tell me that she was having a marvelous time, things were very different than what she expected, and just to let me know, that she was "still in two pieces."

Palm Sunday weekend, my son and I went to visit my parents at my ancestral home. My sister and her two-year old son live with Mom and Dad. Grandma told him that it would be bedtime soon and he would need to put on his pajamas. He replied, "I want Spiderman."

Pajama pants were on and he was attempting to get the pajama shirt on. One sleeve was down his chest with the other down his back. He was struggling to get his arm through the sleeve and had chosen the wrong sleeve for his right arm. Grandma and Grandpa were saying, "Let Uncle Matt help you." My attempt to help was met with resistance and raised voice, "I DO IT MYSELF! I DO IT MYSELF!" I told him, "Spiderman is going to be on your back, let me help you." He further insisted. "I DO IT MYSELF!"

He managed to get his shirt on successfully. But when looking down at the front of his shirt and seeing nothing but blue, no Spiderman, he began jumping up and down, a little panic in his voice. "NO! NO! NO!" and tried pulling the front of the shirt around from the back to fix it.

I laughed so hard I snorted.

It was suggested again to let Uncle Matt help fix it. To no avail. He would only trust Grandpa to fix it. Grandpa had to convince him that he would actually have to take his arms back out of the sleeves to resolve the dilemma. Good job, Grandpa!

Czeslaw Milosz: Preparation (and the law school experience)

2006-04-17T21:00:00.000-04:00

Still one more year of preparation.
Tomorrow at the latest I'll start working on a great book
In which my century will appear as it really was.
The sun will rise over the righteous and the wicked.
Springs and autumns will unerringly return,
In a wet thicket a thrush will build his nest lined with clay
And foxes will learn their foxy natures.

And that will be the subject, with addenda. Thus: armies
Running across frozen plains, shouting a curse
In a many-voiced chorus; the cannon of a tank
Growing immense at the corner of a street; the ride at dusk
Into a camp with watchtowers and barbed wire.

No, it won't happen tomorrow. In five or ten years.
I still think too much about the mothers
And ask what is man born of woman.
He curls himself up and protects his head
While he is kicked by heavy boots; on fire and running,
He burns with bright flame; a bulldozer sweeps him into a clay pit.
Her child. Embracing a teddy bear. Conceived in ecstasy.

I haven't learned yet to speak as I should, calmly.
With not-quite truth
and not-quite art
and not-quite law
and not-quite science

Under not-quite heaven
on the not-quite earth
the not-quite guiltless
and the not-quite degraded.

--Czeslaw Milosz, Preparation, 1986

Dierdre McCloskey: virtue as transgendered, transpersonal, transcendent

2006-04-17T15:06:00.000-04:00

Can you get rabbits out of a hat if none have been put there in the first place? Can you understand (or generate) a flourishing human society using, in Bernard Williams's words, "an immensely simple theory"--perhaps even just a single, simple axiom like Hobbesian utility maximization that will blossom through careful deduction into a full understanding of what the good life is?

Dierdre McCloskey says no in the Buchanan Lecture, and in fact rejects even the next few most-reductionist theories after Hobbes, like Hobbes with a few justice steroid injections (Rawls), and Hobbes+Rawls with a dollop of other-concern (Nussbaum). To get a theory of the full panoply of ways that a society and a human life can go right (or wrong), you need to feed some sense of those virtues (and vices) into your machine at the start.

This doesn't mean you are engaging in circularity. What you're doing is heading both toward first principles by making hypotheses about the roots of human nature and refining those in light of failures and inconsistencies, and then using those honed first principles, moving from them deductively to apply your newly gained understanding. This is the heart of Alasdair MacIntyre's First Principles, Final Ends, and Contemporary Philosophy. The Cartesian process is nonsense. McCloskey gets it.

So let's drop the idea that a mere self-interested invisible hand can generate our intuitions about why the good person will not crush the weak, or that Rawls can get a theory about a just human community of extended fellowship just by taking away information. Put the rabbits in the hat already. Prudence, justice, temperance, courage, faith, hope, and love. While one might believe some of these can be reduced to the others, or draw slightly different divisions, the roots of human and societal flourishing are fundamentally plural. The Hobbesian program is a failure.

The second half of this paper is a discussion of how these virtues lead not to strong communitarianism, but to a robust respect for individual rights. The connection between the cardinal virtues, property rights, and limited government is a complicated one. Discovering what institutions are most conducive to the human polis is the job of sociology resting on a strong philosophy of man. Public choice theory, on this view, is a major contribution to a field that the Greeks hardly knew existed, at which late medievals like Suarez and Bellarmine made some weak stabs, and that the moderns have failed at.

McCloskey also discusses the "genderedness" of the virtues--hers is an interesting perspective, given her sex change--and the importance of transcendent virtues like faith and hope even in a secular society. Finally, she notes that virtues like prudence and temperance are "aristocratic" habits in that the ancients thought the well-off leisured class could best practice them, while faith and hope are "peasant"--perhaps referring to the Nietzschean slave revolt, but embracing it, and noting that these virtues more and more reach to the transcendent rather than quotidian preferences.

I'll probably be writing more on this article soon. Please do check it out. Below the fold is a diagram of the virtues. Also: Norbert Elias and Bentham talked a lot about "the ideology of self-control" and the "civilizing process." This seems closely connected...

As you go upwards, the object of the virtue becomes more transcendent; as you go to the left, more masculine (autonomy), while to the left is feminine (relatedness).

HOPE				FAITH
				LOVE
			JUSTICE
COURAGE
	TEMPERANCE
		PRUDENCE

An empirical classification of intellectual concepts and traditions using Lexis

2006-04-17T12:31:00.000-04:00

If you have Lexis and some basic programming skills, you could classify the entire field of human knowledge (well, at least legal knowledge) by running searches and noting the overlap between authors or concepts.

Say you start out with "natural law and macintyre and alasdair and property and economic! and right!" and you get 310 results. Then you add "and aristotle" to the end: if your results drop off to nothing (like 5 results), then the terms are largely independent, and conceptually far apart, and so you should put MacIntyre and Aristotle in different bins. If the results stay roughly the same (down to maybe 250), then the authors and concepts are referred to by the same people, and so must be exactly identical. It's true.

Just cook yourself up a metric for distantness and start running the searches. Tell me what you find.

Word cloud (after nearly a half-year)

2006-04-16T23:53:00.000-04:00

After five months, the focus of the blog has perhaps changed a bit. The earlier word cloud at left lacked, for example, the words "marriage," "hashemi," and probably "immigration." The new one is at right: Puerto Rico has dropped right out.

Lawyer "ethics": hungry clients and ambulance chasers

2006-04-16T12:56:00.000-04:00

It is okay for a personal injury lawyer to advance money based on a contingent fee in a speculative lawsuit, but it is forbidden for a pro bono asylum lawyer to, say, raise money in a charity auction to fly the client's children to the country for derivative asylum applications after a successful asylum ruling, or to volunteer money that likely will never be repaid for a DNA test to establish paternity for those I-730 derivative applications.

This from the Connecticut Rules of Professional Conduct. Section 1.8:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may pay court costs and expenses of litigation on behalf of a client, the repayment of which may be contingent on the outcome of the matter;

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(Commentary on Rule 1.8 has noted that these rules should apply both to current and former clients.) Rule 1.8(e)(1) enables speculative litigation, and 1.8(e)(2) applies only to actual court costs and litigation for indigent clients, not expenses which follow from a successful ruling. For example, Informal Opinion 93-12 and 00-21, allow, respectively, expenses for personal injury suits (say, an MRI for evidence), but require the indigent client to be cut loose after the verdict. These rules parallel the ABA model rules, and both are harshly interpreted. See, e.g.,

C.O.P.R.A.C. Op. 1976-36 (opines that it is unethical for an attorney to advance expenses (i.e., in instances of indigence on pro bono cases) where there is a substantial likelihood that the client will not be able to repay such costs absent successful resolution of the case).

I suggest, gently, that perhaps this is a somewhat unfair bias. The review list 8 ALR3d 1155 has notes on champerty, and how unlikely one is to be hit for that in personal injury law, but how pro bono firms just can't risk it. (The painting is from Marginal Revolution's study of Mexican Amate artists.)

Sicut dixit

2006-04-16T11:59:00.000-04:00

Regina caeli, laetare, alleluia!
Quia quem meruisti portare, alleluia!
Resurrexit sicut dixit, alleluia!
Ora pro nobis Deum, alleluia!

Queen of heaven, rejoice, alleluia!
For He whom you were found worthy to bear, alleluia!
Has risen even as He said, alleluia!
Pray for us to God, alleluia!

from T. S. Eliot's "Ash Wednesday"

2006-04-15T20:56:00.000-04:00

Although I do not hope to turn again
Although I do not hope
Although I do not hope to turn

Wavering between the profit and the loss
In this brief transit where the dreams cross
The dreamcrossed twilight between birth and dying
(Bless me father) though I do not wish to wish these things
From the wide window towards the granite shore
The white sails still fly seaward, seaward flying
Unbroken wings

And the lost heart stiffens and rejoices
In the lost lilac and the lost sea voices
And the weak spirit quickens to rebel
For the bent golden-rod and the lost sea smell
Quickens to recover
The cry of quail and the whirling plover
And the blind eye creates
The empty forms between the ivory gates
And smell renews the salt savour of the sandy earth
This is the time of tension between dying and birth
The place of solitude where three dreams cross
Between blue rocks
But when the voices shaken from the yew-tree drift away
Let the other yew be shaken and reply.

Blessed sister, holy mother, spirit of the fountain, spirit of the garden,
Suffer us not to mock ourselves with falsehood
Teach us to care and not to care
Teach us to sit still
Even among these rocks,
Our peace in His will
And even among these rocks
Sister, mother
And spirit of the river, spirit of the sea,
Suffer me not to be separated

And let my cry come unto Thee.

Lent draws to a close, and all our projects are ashes until the morning. Blessed Easter Vigil to all.

Blake, intuition, and Judas

2006-04-15T20:22:00.000-04:00

Some good papers or articles:

an interesting discussion of the Gospel of Judas w.r.t. Gnosticism at volokh.com (look at the comments and the link, too; also see what it means to be a Gospel; and why the resurrection of the body is important philosophically and practically from Slate)
NYT description of communities forcing deportation of illegal immigrants for minor infractions
Prawfsblag comments on Balkin on Gary Wills's "Christ among the partisans"
Slate obituary for the old Yale chaplain William Sloane Coffin
How to remove a federal judge by Prakash and Steve Smith

Some websites I've been paying more attention to lately:

Godspy (modern Chestertonian apologetics)
Empirical Legal Studies Blog
The Crunchy Conservatives book reading list
Marginal Revolution (one should read this every day)
Fafblog

Some books I'm in the middle of:

Dominion, Scully (animal rights)
The Good in the Right, Robert Audi (intuitionism)
Moral Intuitions, James Q. Wilson (intuitionism)
The Idea of a Christian Society, T.S. Eliot
Jonathon Strange & Mr. Norrell, Susanna Clarke (re-reading, at bedtime)

Current musical obsessions: The bands The Gris Gris and Hem. Britten's Songs and Proverbs of William Blake:

The pride of the peacock is the glory of God.
The lust of the goat is the bounty of God.
The wrath of the lion is the wisdom of God.
The nakedness of woman is the work of God.

Another favorite setting from this is Blake's The Poison Tree from Songs of Experience. This seems especially powerful in light of the new Judas narrative, of forgiveness and friendship and freedom:

I was angry with my friend:
I told my wrath, my wrath did end.
I was angry with my foe:
I told it not, my wrath did grow.

And I water'd it in fears,
Night & morning with my tears;
And I sunned it with smiles,
And with soft deceitful wiles.

And it grew both day and night,
Till it bore an apple bright;
And my foe beheld it shine,
And he knew that it was mine,

And into my garden stole
When the night had veil'd the pole:
In the morning glad I see
My foe outstretch'd beneath the tree

Fafblog discovers the next step down the slippery slope...

2006-04-15T20:01:00.000-04:00

...of gay marriage and polgamy. Beware! Only you can prevent robot sex.

Let him easter in us, be a dayspring to the dimness of us, be a crimson-cresseted east...

2006-04-15T17:11:00.000-04:00

     Now burn, new born to the world,
     Doubled-naturèd name,
    The heaven-flung, heart-fleshed, maiden-furled
     Miracle-in-Mary-of-flame,
Mid-numbered He in three of the thunder-throne!
Not a dooms-day dazzle in his coming nor dark as he came;
   Kind, but royally reclaiming his own;
A released shower, let flash to the shire, not a lightning of fire hard-hurled.

     Dame, at our door
     Drowned, and among our shoals,
    Remember us in the roads, the heaven-haven of the Reward:
     Our King back, oh, upon English souls!
Let him easter in us, be a dayspring to the dimness of us, be a crimson-cresseted east,
More brightening her, rare-dear Britain, as his reign rolls,
   Pride, rose, prince, hero of us, high-priest,
Our hearts’ charity’s hearth’s fire, our thoughts’ chivalry’s throng’s Lord.

G. M. Hopkins, "The Wreck of the Deutschland"

John Allen on John Paul II and Benedict: an initial comparison

2006-04-15T17:10:00.000-04:00

The National Catholic Reporter has a great overview by John Allen, writer of The Word From Rome. It is not an oversimplification to say that if you do not read Allen, you do not know the Vatican.

Some summary points of his:

Benedict has not been an authoritarian pope, this far: he is largely in continuity with JP II. Benedict has been effective in dividing faith and morals (on which there is no compromise) from "judgment calls" where he allows a vigorous debate. (There is in fact an upcoming conference, Public Policy, Prudential Judgment, and Catholic Social Teaching, at the University of St. Thomas, noting that the religious orders often have no special competence in many political and prudential matters, and should stick, and stick hard, to their guns of moral principles.)
The average non-Catholic knows little about him, and the average Catholic only fares a bit better. "At the end of Benedict's first year, the Catholic church thus faces a new communications problem. For 26 years, the church had the best story in the world in John Paul II. Now, the church can no longer assume the world will pay attention simply because the pope says or does something. That poses the question of how to "sell" the pope -- how to be sure that people are aware of what he's actually saying and doing, as opposed to random aspects of his activity that happen to catch the interest of the talk shows and editorial pages, which can produce a terribly distorted image of his real priorities."
In his homily eligendo papa he announced one of the major focuses of his papacy: attacking the "dictatorship of relativism." He has certainly continued the assault, but in a surprising way: he has tried to ensure, at the start, that the Church is a credible witness to Love, so that its teachings carry their maximum force.
"Again at the level of content, the dominant storyline in the transition from John Paul II to Benedict XVI is obviously continuity. He was elected with precisely that expectation. There is, however, one intriguing area of contrast: Islam. To put it bluntly, Benedict is more of a hawk, pursuing a kind of interaction with Muslims one might call 'tough love.'" Benedict has pushed for religious freedom in the Islamic world more aggressively than JP II, and has not hesitated to bring concerns about the treatment of religious and laity up with foreign leaders.
JP II was not the world's greatest speaker. He relied in large part on natural charisma and his obvious, almost otherworldly love. Benedict, however, has effectively been in charge for the past decades of explaining why the Church's policies are the right ones. He is, in effect, a university professor. A common reaction in crowds is that the pope is understandable, whereas JP II often used the more technical philosophical jargon of personalism. "People came to see John Paul, they come to hear Benedict."

A fascinating article at an early stage of what could be a very good papacy.

Priestly Pedophilia and Spousal Minister Murder

2006-04-14T00:48:00.000-04:00

Happy 10th Birthday, Alyssa! I love you!

During the recent scandal in the Catholic church re: pedophiliac priests and the cover up by bishops etc., I often heard, "If we allowed priests to marry, we wouldn't have had this problem." The real issue here is not fundamentally about priests being allowed to marry; it is about the sinful actions of individual men.

During the recent story of the Tennessee woman who shot her minister husband (click here for the story), I was hoping to see a spokesperson for the Catholic church, using this same illogical argument, reading a statement on the evening news, "...and this is why the Church does not allow its priests to marry." Somehow, I don't think this similar thought would have ever been seen in print or on the 5 o'clock news. :-)

Greetings Everyone

2006-04-13T23:18:00.000-04:00

Thank you Sean for the invite to join you all and mix it up.

I have lurked a while and it will be nice to join the conversation on everything from billboards in Missouri to baseball to politics, if only for a brief while.

Hopefully I will have things equally mundane and profound to contribute.

Just will add a few things to the summary Sean gave.

I am a profoundly happily married man. I work too much. I enjoy good music and good humor and I can bench press my own birth weight.

Once when Bob Goldthwait was doing a radio show, a woman called him up and asked, "What is the difference between a gerbil and a hamster?" He replied, "I'm pretty sure there is more dark meat on a hamster."