The Right Coast

Death row inmate lauds his life of leisure Tom Smith

Some of the killers on death row are really bad people who deserve much swifter justice than they get.

Warren the cheap Tom Smith

Which would Warren Buffet's secretary prefer -- being made the national poster girl for tax victimhood or being paid more than a measley $60K a year for being personal assistant to one of the richest guys in the world?  I guess the idea is she'll be happier if her boss pays more in taxes.  If I were she, I would say, Warren, why not pay me some more instead of paying a lot more to the government.  It would be cheaper for you to increase my salary times ten then to pay a couple of points more in income taxes.  But this evidently is not the way the enlightened think.  Somehow giving politicians more to play with is supposed to make Ms. Secretary feel better.

Tom Smith

Invisibility cloak progress.

That explains a lot Tom Smith

How to survive doing Wheel of Fortune for 30 years.

Racial tension in Australia Tom Smith

Unhappiness down under.

Barney Frank to be wed Tom Smith

For every pot a lid.

Moon base Tom Smith

Newt wants a moon base.

The fool in the shower Tom Smith

You go into the shower, turn on H and C, but the water's still cool so you crank the H way up.  You are the fool in the shower.

In other news Tom Smith

A lady prosecutor and her 9 mm.

Born again Reaganite Tom Smith

Newt wasn't so much back in the day, recalls Eliott Abrams.

I can't really decide between Mitt and Newt.  Both have serious problems as candidates.  I recall it is not too important what I think about this however.

Newt smiths some nice words here.  He is certainly the more entertaining.

Two can play that game Tom Smith

Christie nominates conservative minorities to NJ high court.  Of course, it goes without saying they aren't really minorities then.  One YLS grad too.

The amplified edition of Atlas Shrugged Tom Smith

Here.  They should do an edition for Das Kapital as well.  You could have footage of the gulags for example.

The wonderful world of NHS Tom Smith

Not so wonderful.

The Pantheon of Bad Supreme Court Decisions Timothy Gordon

In an era when the Lochner decision is fairly getting another look—just as the 2012 Republican primary seems to have reoriented political discourse in this country to a sane, comparatively consanguine conservative-libertarian interchange—one considers a new summary view of the “worst” all-time Supreme Court decisions.  By virtue of the fact that libertarians and even some conservatives can make a reasonable argument in defense of Lochner (a la Bernard Siegan, Richard Epstein, libertarian jurisprudes everywhere, etc.), it can at least be ceded that it does not belong in such a Pantheon of Shame of all-time worst decisions, where liberals have tried to relegate it.  Regardless of how one ultimately feels about Lochner, one can agree that at the least, it’s arguable.  

There exists a sufficient number of cases, on the other hand, with zero reasonable defenses as to render those with even one or two (like Lochner, at its most uncharitable impression) unwelcome in such a Pantheon.  In Lochner’s vacant place, I hereby recommend one such zero-arguments-for case, Griswold v. Connecticut (1965), where the “right to privacy” was fabricated with more outright, ad hoc, imaginative judicial creativity than even usually applied by the Court’s mild extrapolative flourishes, thus adding privacy to the fundamental rights enshrined by the Constitution.  And of course, without Griswold, there could be no Roe.

At the first Republican primary debate in New Hampshire a couple weeks back, Griswold came up.  The stars did not come out to play.  Shamefully, Romney seemed not to even know that Griswold’s fact pattern was not historically “irrelevant,” or, for that matter, what the implications of discrediting a right to privacy (as he regularly does) would be: specifically, one of these implications would be that Connecticut indeed had the right to outlaw contraceptives.  It’s this simple: if one fails to believe that there exists a fundamental right to privacy enshrined in the Constitution (as Romney claimed), then one advocates the view that any one (or more) of the fifty states enjoys the right to pass whacky, outlier legislation (as Romney denied…sort of). 

In the spirit of debate—now with primary results from three states decided—let’s analyze Griswold briefly, and expose just how stupid a judicial holding it came to represent.  Stupid, that is, such as to justify its rightful place in the Pantheon of Stupid Cases. 

In Justice Douglas’s majority opinion, it is claimed (in one of the silliest turns of phrase in the history of language) that the right to privacy is synthesized by “penumbras created by emanations” of the highly specified rights conferred by the 3^rd, 4^th, 5^th, and 9^th amendments, mixed with the 14^th amendment.  Now, trust me, this is worth the time spent on fully teasing out just what dreck he’s trying to fashion into a plausible or even semi-plausible argument:  that the rigorous specificity of the rights ensuring against quartering soldiers during peace and against unreasonable searches and seizures, and ensuring the due process (in the 5^th and 14^th) of law, aggregates in a completely non-specific summary right to privacy in all acts. 

In other words, when someone tells you a particular thing is important to her—a song, say—Justice Douglas tells us that you should explain to her that all songs must thereby be important to her.  (Right?)  This of course, completely goes against the idea of something being special.  In still other words, when your mother gives you a shopping list (e.g. “quart of milk, loaf of bread, and a stick of butter”), she has actually mandated that you purchase at the store ALL foods.  Don’t trust your own lying common sense, trust Justice Douglas, whose reasoning implies thus:  well, Mother’s shopping list named all these instances of foods, and from her painstakingly specific enumerations, I gathered faithfully that she wanted me to purchase all foods.

Makes sense, right?

The whole history of Aristotelian metaphysics (i.e. the treatise on genus/species and universals/particulars) crumbles before Douglas’s rationale.  If someone says he’s in the mood for one specific type of thing—a certain food, say—he must really be saying he has a hankering for any/all members of the genus referenced.  I admonish my reader: try this on your wife or girlfriend the next time she names something in any capacity of life that bears specific mention!  Hot water landed in, you will be (in Yodan).  All language trembles before the destructive force of a superlatively bad judicial decision.  Griswold has earned stripes of precisely that quality: i.e. superlatively idiotic.

If you’re thinking that perhaps Justice Goldberg or Justice Harlan—both of whom wrote concurring opinions—saved the ship with their concurrences by supplying the missing right reasons for a poorly premised, yet right conclusion, don’t.  Their concurrences are equally befuddling.  Goldberg comes to the same conclusion by excising the part of Douglas’s rationale that makes reference to the 3^rd, 4^th, or 5^th amendments.  But it still forwards a notion like the bizarro “emanations” idea (only from an shortened set of listed rights???).  Also, it includes the idiotic idea that rights are circumscribed by a mutable “collective conscience”—obviously a favorite position of the postmodern Left—which, I believe, erodes the entire Western idea of what a right is: immutable!  (That topic’s for another day!)  Justice Harlan in his concurrence pares down the list of rights, from which the overarching privacy right supposedly derives, even further—basically to just the fourteenth.  And like Justice Douglas mentions in his majority opinion, the fourteenth amendment’s “due process” that Harlan centers his argument around is not the “procedural” (i.e. real) due process that you’d expect from someone so smugly dismissing Lochner (assuring us boldly that THIS IS NOT LOCHNER!), but rather “substantive” due process, which idea is the very creature of Lochner!  In other words, how in the world does this case not rely heavily on Lochner?!  (“Substantive due process,” for those who don’t know, is a fancy way of saying “made up judicial garble created by Lochner.”)

As Scottie Pippen, Art Garfunkel, John Oates, and DJ Jazzy Jeff can attest, it is quite difficult in life to become the very best at something, no matter how much time has been spent on perfecting that craft.  One always seems to fall short of first.  Congratulations then are due to Justice Douglas, because he has drafted the—bar none—dumbest judicial opinion (and I’ll even broaden the genus a bit: written argument) ever crafted by the judicial hand, a “crooked timber out of which no straight thing ever grew.” 

Philosophers take on cosmology Tom Smith

Click through to the Atlantic interview with Tim Maudlin of NYU, well worth reading.

Comment policy Tom Smith

Some months ago I changed the comment settings on the RC to require commentors to sign in via facebook, twitter or a similar service in order to comment.  This eliminated the annoyance of comment spam, but it also eliminated most other comments as well, including those evidently of some loyal readers. Now I have switched the comment settings back to where no facebook etc. sign in is required. We'll see how this goes.  

America is getting classier Tom Smith

And not in a  good way.  Charles Murry on growing cultural inequality in the US.  It rings true to me.

"An act of national insanity" Tom Smith

A good piece by Robert Samuelson (he is usually quite good) on the Keystone pipeline fiasco.  A lot could be said about Obama's decision on it, all of it dispiriting.  No doubt some environmental true believers will take in kindly, as perhaps economically irrational, but treading on some imaginary path that leads to higher and greener pastures where we live not by oil alone.  Politics so cynical as to breathtaking (as Samuelson puts it) conveniently coincide with planetary ethics so etherial as to be comical.  The net result is not so funny.

The Nazis just weren't the thing Tom Smith

I have started subscribing to The New York Review of Books on my kindle fire and so far I would say it's worth the freight.  Reading it is to me like visiting an exotic world peopled by creatures whose interests and priorities are alien to mine or at least weirdly skewed.  While I have enjoyed some productions of modern dance, for instance, there is something about the world of dance, its sciences and preoccupations that bores me deeply.  Yet people who care about "dance" for some reason seem peculiar enough to me to arouse at least a temporary curiosity.  And the NYRB covers dance as well as just about anything else that might count as culturally worthy in Manhattan.

This issue has a review by the distinguished historian Max Hastings of two new biographies of Himmler and Heydrich, respectively, called appropriately enough "the most terrible of Hitler's creatures."  The review is worth reading, though a subscription is required to read the whole thing.  Most interesting to me is Hastings's invocation of the old trope that the Nazi leaders were notably just irredeemably vulgar, uncultured, unintellectual and of utterly mediocre accomplishment.  I say old because I remember at least one scene from some WWII movie from the sixties or seventies in which some upper class German lady decried the awful petit bourgeois-itude of that little man Hitler.  I remember being impressed by that affectation for a while when I was ten or so.  But it hardly seems a credible attitude for an adult, let alone a distinguished historian to adopt, though the NYRB seems be a venue where academics and intellectuals let their (in the case of the more elderly males) completely metaphorical hair down.  

We learn, for example, that the violin playing of Heydrich, who came from a musical family, was "sentimental."  As if one could hardly expect the Butcher of Prague to intrepret the violin repertoire with much sensitivity.  I find this ridiculous, as ridiculous as if the book had been reviewed by some fashion maven who wondered how Heydrich could wear his dashing SS uniform so well, or by a person of the dance who wondered how Heydrich could cut the rug so appeallingly, and yet be so evil.  You may say this is a common enough sort of academic and intellecutal snobbery but it still rankles. It recalls Hannah Arendt's tedious point about the banality of Adolph Eichmann's evil, the sort of point that could only be made by the sort of person who was excessively dazzled by cultural accomplishment in the first place.   

It might be, or at least one hopes, that the sort of cultural and academic snobbery that those of us in the academy are only too familiar with might be dying out.  Perhaps Professor Hastings is an old European of the sort who dreamnt of the redeeming power of high culture, a dream I would have thought WWII left little of.  Some of this I suspect too is a holdover from the European and therefore also to some extent American yearning of the professional middle class for aristocratic privilege and distinction. Many, many academics must be the children of striving but not wealthy parents who went to university on scholarship and fought to attain the higher rank to which they felt their talent entitled them.  It must be natural to believe that having those talents makes one not just more talented but ineffably better, the way a true aristocrat is ineffably better than a mere merchant, tradesman, lawyer or doctor.  The problem with this worldview is its falsity.  Heydrich may not have been a truly accomplished musician, but people seem to think Heidegger was a most accomplished intellectual and for all that he was a Nazi, if not so successful at it as Himmler or Heydrich. Somewhere in this as well is the problem for, let's call them liberal intellectuals, that any overt claims or commitments to morality (especially religious morality) as such would be highly problematic.  They are evidently much more certain about what makes a man vulgar and a boor than what makes him evil, though to be fair I think they would agree that notorious Nazis do qualify. Though evidently not so certainly that the case isn't sealed by noting, as Hastings does, that Himmler was a rather unfortunate looking man and his wife was vulgar and no beauty. (Yet Heydrich seems to have been good looking enough, especially if you go for icy Nordic types.)

Another fallacy that I suspect lurks behind Hasting's puzzlement, and I infer that also of his probably sympathetic readership, over the political success of Himmler and Heydrich, who lacked so completely all of the adornments of high culture, is the presumption that political systems somehow reward genuine human accomplishment.  (Or perhaps one should day "genuine".)  How different this presumption is from the hard-eyed worldview of the American founders for instance, or radical Whigs more generally, who saw politics and government as an arena of amoral factional conflict and inevitable corruption.  The latter strikes me as far more true to the facts, not just as to government but to many other human realms as well.  Probably including even the dance.  Evil should seem banal only to those who were wrongly dazzled by some glamour or other in the first place.

EPA gets roughed up by Supremes Tom Smith

Good.  

Romney will get hammered on Cayman investments Tom Smith

I have a feeling this is going to look really bad for the Mitt man.  You can say truthfully that hedge funds would not have to domicile themselves in the Caymans if US tax and securities laws were not so stupid, but good luck with that.  The regulatory advantages (including secrecy) are exactly why you set up offshore, duh.  The issues involved are bafflingly complex and if you do manage to work all the way through them, they don't end up looking particularly savory for the investors.  My knowledge of offshore jurisdictions is 20 or so years out of date, but as of the early 90s, the Caymans was still one of the, uh, more permissive and respectful of the confidentially needs of investors than other offshore jurisdictions that were marketing to more, uh, conventional banking clients.  So Netherlands Antilles and Bermuda were less open to Gulfstreams stuffed with boxes full of Ben Franklins than was the good old Caymans.  Well down the food chain was Panama, where how you make your money is your business, Senor. Any network producer could easily put together a plausible story about offshore investment vehicles that would make those who use them seem like a cross between a narcotrafficker, a terrorist, and a slimy tax cheat.  The honest explanation for Mitt would be, US laws are really burdensome and it makes sense to get your money out from under them if you can, and I can -- but I don't think that's going to wash too well with the voters.  

New book on the financial crisis looks good Tom Smith

I just ordered this book after seeing a positive notice in the WSJ.  A big point proponents of financial regulation frequently miss is how it messes up diversification in the financial industry and thus creates systemic risk it should be trying to reduce.  So if the regulations say, you must invest in these sorts of securities, or, you will will enjoy great advantages if you do (such as satisfying capital requirements more cheaply) then you will get too much invested in the sorts of investments some regulators think are low risk, but may and indeed did turn out to be much more risky than they thought.  Institutions will diversify themselves more if they have to decide for themselves how to manage risk instead of coordinating around the rules from the SEC or Basel.  

State of technology 2012 Tom Smith

Worth reading.

Rats poised to get new protection in DC Tom Smith

These are the literal, long-tailed, flea carrying sort of rats I refer to.

Olin-Searle-Smith Fellows in Law ProgramMike Rappaport

For young lawyers interested in the legal academy, the Olin-Searle-Smith Fellows in Law program seems especially attractive.  I wish they had this kind of thing going when I was starting out.  The deadline is March 15.  For the full description, see here. 

The Olin-Searle-Smith Fellows in Law program will offer top young legal thinkers the opportunity to spend a year working full time on writing and developing their scholarship with the goal of entering the legal academy. Up to three fellowships will be offered for the 2012-2013 academic year.

A distinguished group of academics will select the Fellows. Criteria include:

• Dedication to teaching and scholarship
• A J.D. and extremely strong academic qualifications (such as significant clerkship or law review experience)
• Commitment to the rule of law and intellectual diversity in legal academia
• The promise of a distinguished career as a legal scholar and teacher

Stipends will include $50,000 plus benefits. While details will be worked out with the specific host school for the Fellow, in general the Fellow will be provided with an office and will be included in the life of the school. Fellows are not expected to hold other employment during the term of their fellowships.

Mentally retarded kids don't deserve transplants and you're not in great shape either, old timer Tom Smith

Click through to read the original story.  Shocking but not surprizing.  It's a luge run and we're halfway down.

And you might have missed this.  It's so perfect that it should be called an "ethics panel".  "Unit" is perfect too.  I had thought only baby-like-but-non-person fetuses were units but I guess we all will be if we present at the ER with a stroke or head injury.  Well, the Harley is definitely out now. Maybe I should wear a helmet in my car.

"We the Units of the United States . . . "  Eh, to me it just doesn't have the same ring to it.  "Greater love hath no unit than this:  That it should give up its quality of life units for another unit."  Ditto.

Fascinating book about Islam, birthrates and Christianity Tom Smith

I really have enjoyed David Goldman's When Civilizations Die: (And Why Islam is Dying Too).  Readers astute enough to be reading the RC would probably enjoy it.  It is rather a hopeful book in a strange way.  It's not going to be a post-American world he says, for instance.

According to Goldman, Muslim countries are undergoing an unprecedented population implosion and are on the brink of a kind of historical extinction.  Both Europe and Japan he says will cease to exist in anything like their current form in 50 years due to their inability or unwillingness to reproduce themselves.  His most striking claim to me is that secular nations are effectively doomed because they don't or won't have enough children to replace themselves.  So the UK, Germany, France, Japan, all the countries saved by the US in WW2 are on a fast track to graying and then for practical purposes disappearing.  The US is an exception, Goldman says, because it is so religious.  But within the US seculars (including secular Jews, mainline Protestants and lapsed Catholics, as well as "nones") are underbreeding themselves to extreme minority status.  The US in the future will be more Christian, particularly evangelical and pentacostal.  Catholic, not so much.  That part I didn't like.

Thrown in for good measure is Goldman's theory of the history of Europe, from the conversion of Constantine, to the 30 years war, through the Enlightenment and world wars, to its present decline. It got off on the wrong track from the beginning and the French played a particularly damaging role in everything.

The book reads like a collection of long blog posts but it is a fast read for all that.  Goldman has a pithy way of making his sweeping points.  I find it hard to disagree with his critique of Bush's foreign policy;  I'm pessimistic about nation-building.  How reliable his demographic projections are, I'm not sure.

Romney has developed a conservative agenda Tom Smith

Says Rubin.  Defending private equity works for me.  I love private equity.  I wish I had more.