The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Thursday, May 31, 2007

The Dangerous Book for Boys
Tom Smith

This is just to let you know, no big surprise here, that the Dangerous Book for Boys is officially approved by the Smith household.  Bought it, gave it to the kids.  They like it fine, though there is a bit of the been there, done that.  If you've been raising your boys right, this book contains few surprises.

I can't resist adding a few tips of my own.  FWIW. 

Send your boys to an all boys' high school.  It's great.  They can catch up on all that other stuff in college.  Ask yourself.  Did your high school girl friend do you any good?  Mine didn't.  Don't get me started.  Personally, I think not dating until you graduate college has something to be said for it.  Now that I have kids of my own, the whole idea of arranged marriage makes a lot more sense.  I am not kidding.

Get them involved in violent sports.  Football is OK if they're big.  Lacrosse is awesome.  You get to hit people with sticks.  It's encouraged.  Hard to beat that.  Alternatively, martial arts, especially grappling.  BJJ culture is not a lot of that, be at peace, little grasshopper, and more, this really works.  I'm against motor sports, but that probably works too.

Watch lots of manly movies.  Lord of the Rings is an education in boy-ness in its own right.  They should be required to read the books, of course.  There are lots of books in the fantasy genre that emphasize adventure and manly virtues.

Set a good example.  Don't become a couch potato, lay about turd yourself.

Dogs.  Own at least one, two or more is better.  Dogs teach boys about a lot of things.  They are great companions.  They teach boys a lot about love.  I don't know about horses.  They might be better for girls.

Let them play with guns.  Not real guns, but airsoft, paintball, all that stuff.  It's fun.  If they want to learn how to shoot, fine.  But obviously that has to be done responsibly.

Give them jobs to do at home.  Make them pitch in.  I'm not sure why, but this seems to make a big difference in all kinds of ways.

I'm against explosives, playing with fire and all that.  Too dangerous.  We were constantly blowing things up when I was a kid, but we're lucky no one was seriously hurt.

Protect them against mean, boy-hating teachers.  They are absolutely out there.  This is especially important when they are young and impressionable.

That's about it.  Maybe I should write a book and get in on this craze.


THIS is funny, from a review linked to above:

One literacy expert reviewed several junior-high social studies texts and concluded: "Many students may well end up thinking that the West was settled chiefly by females, most often accompanied by their parents."

In her alarming book, "The Language Police," education historian Diane Ravitch describes how "sensitivity and bias committees" in our leading publishing houses now routinely expunge from textbooks and standardized tests all mention of potentially upsetting topics. Two major publishing companies specifically interdict references to frightening animals such as rats, mice, roaches and snakes.

Which reminds me -- another good idea is to nurture a boy's quite natural interest in bugs, snakes and so on into a more general appreciation of Nature, in all of its fascinating disgustingness and beauty.  To wit, this DVD collection of the BBC series Life in the Undergrowth is unbelievably good.  Its astonishing record among many, many others, of slugs mating, records the most alarming, disgusting and yet fascinating form of sexual congress I have even seen captured on film.

May 31, 2007 | Permalink | Comments (6) | TrackBack (0)

Politics is politics, justice or not
Tom Smith

Althouse speaks on Justice Ginsburg reading her dissents from the bench. (via Instapundit.)  I add some observations in the utmost humility.  I was a humble clerk on the D.C. Circuit Court of Appeals when Justice was Judge Ginsburg, and Justice was Judge Scalia, and Bork was Judge Bork.  You had to admire Judge Ginsburg's obvious intelligence, and she seemed like a nice lady.  But the idea that she was somehow less political than any other judge is just silly.  She was very political.  They all were.  Some cared more about the law than others, and Ginsburg cared about the law.  But there was no question that on a case involving sex discrimination or labor unions, you would be a fool to bet against a liberal outcome if she were the swing vote.  She was a nice lady, but she also knew how to rip somebody a new one, if you will.  I saw her dress down a rather pompous questioner not up to the task at a Federalist Society event.  It was not pretty.  She was perfectly able to to mix it up.  The idea that she is some kind of elegant, delicate flower who has been forced by the big, bad conservatives to descend into the hurly burly of the political rough and tumble is a complete fantasy of the New York Times and Linda Greenhouse.  That is to say, utter rubbish.  Justice Ginsburg has been hurly burlying for a long time.  She was a civil rights litigator for heaven's sake.  She's an old school feminist.  If you can find it in your heart, give me a break.

I make no claim to be hip to the profundities of the jurisprudence of the U.S. Supreme Court.  But can I be the only one whose intelligence is insulted by this attitude of, oh, golly, the Cahart decision is just politics, not law.  You start with Roe v. Wade, a decision that sprang, like Athena from the brow of Zeus, out of Justice Blackmun's none too cerebrally blessed head, a decision so appallingly made up that those of us who went to law school in the '80's had to suffer through years of tendentious theories of "non-interpretive judicial review," that is, theories about how making it up isn't really quite exactly making it up, though, in the alternative, it is OK to make things up if you really have to, and then, when decades later, the Court decides, with at least some guidance from Congress, to say, well, abortion is OK, but you know, if it's a baby already, and half-way out, and Congress says so, then, well, you shouldn't just, you know, squish its little head, we have to sit here and listen to the paroxysms of indignation that this is politics, not law.  That we run the risk of making poor, old, apolitical, white glove clad Justice Ginsburg descend from the Platonic heaven of pure juridical dispassion, and read her dissent from the bench.  Oh, my, we've done it now. 

Don't get me wrong.  I like judges.  Judges are fine.  But a lot of this icky journalistic judge worship, not to mention that which some law professors indulge in from time to time, stems from giving judges so much arbitrary power in the first place, of which the bafflement that is Roe is the leading example.

May 31, 2007 | Permalink | Comments (4) | TrackBack (0)

Fred Thompson on the Issues
Mike Rappaport

Now that Fred Thompson appears to be entering the race, what are his positions on the issues?  Wikipedia provides some info here.  He seems like a mainstream conservative republican, although many of the issues remain to be filled in.  I think that is what the base is looking for. 

I am still undecided on Republican presidential candidates, although I am leaning towards Giuliani.  (Some years ago, I vowed never to support Giuliani, given his behavior in the Southern District while Meese was Attorney General and after he endorsed Mario Cuomo.   Never say never.  But see this criticism of Giuliani by David Boaz.)   

But I am going to give Thompson a serious look. 

May 31, 2007 | Permalink | Comments (3) | TrackBack (0)

Wednesday, May 30, 2007

"Tuskegee Re-Examined"?
Gail Heriot

This is a surprise.  Cultural anthropologist Richard Shweder demonstrates that there are two sides to every story:

The [Tuskegee research on black victims of syphilis], which was conducted openly and without secrecy, is now commonly and routinely portrayed in one or more of the following ways: as racist science; as 'a programme of controlled genocide' (whites against blacks); as a violation of basic human rights; as a study by the US government's Public Health Service in which effective treatment for a fatal disease was withheld from a poor, uneducated, vulnerable minority group in disregard of their health and safety; as a callous scientific pursuit that ignored human values and was 'almost beyond belief and human compassion'; as 'an outrage to our commitment to integrity and equality for all our citizens'; as a research project in which the government gave syphilis to black people so as to scientifically document the natural course of the illness; as an 'experiment' in which human beings were treated like guinea pigs or laboratory rats.

The study is also often cited as a compelling example of why we need the Institutional Review Board (IRB) system of ethical surveillance and control for research with human subjects - a system that is now applied by most US universities to all research with human beings, regardless of funding source (public, private or personal) and research topic (medical or non-medical). ...

My own interest in learning more about the Tuskegee syphilis study began with a dinner conversation with a friend, who is a doctor. ... Although I knew relatively little about the details of the Tuskegee Study, I had somehow acquired the impression that many decades ago during the days of unregulated medical science the US Public Health Service had actually infected black men with syphilis. This is a not uncommon belief among black and white Americans who have heard of 'Tuskegee'.

But my friend told me: 'Nobody was given syphilis in the study.' All the participants (black sharecroppers in Macon County, Alabama in 1932) already had syphilis, 'but they were not treated for the disease'. I then asked him how syphilis was treated in 1932 when the study started. 'There were some horrible, painful, expensive long-term treatments around but I don't think they really worked', he said - 'there was no effective therapy at the time'. 'Had there been an IRB system in place in 1932, applying the medical research norms of those times, would the IRB have approved the project?', I asked. 'I am not sure, but they might have', he said. I began to suspect that there was both less and more to 'Tuskegee' and the political role it now plays in popular consciousness than has met the public eye.

Shweder goes on the explain that syphilis is not quite the disease I thought it was.  It is only painful and contagious in its first stages.  Contrary to what I had been told, it does not inevitably lead to insanity and death.  Instead, he states that "the vast majority of people who have untreated syphilis either remain asymptomatic all of their lives or else spontaneously recover from the disease."  At the time, no one was quite sure how many would not.  And no one was quite sure if the long, painful treatments that were given to syphilis victims during the contagious phase were worth it or not.  (He states that a majority who began treatment never finished.)  Shweber also has an explanation as to why the whole thing wasn't called off years later, once penicilln was discovered and became available.  On this issue, his "other side of the story" did not seem quite so compelling.  But Shweber's version isn't as terrible as the story I had originally understood.  He says it wasn't clear to them that penicillin would have any beneficial effect that late in the game.  (But why not give people to option to try it, by telling them that they actually have syphilis?)

Read the whole thing if you have the time.  It's an interesting story filled with interesting ethical issues, just not the same ethical issues as I had previously thought.  The actual issues were closer calls.

May 30, 2007 | Permalink | Comments (1) | TrackBack (0)

My Aunt Maxine on Ebay
Gail Heriot

You can get anything on Ebay ... even pictures of your ancestors.  I knew I had a great, great, great aunt (or something like that) named Maxine Elliott (1868-1940) who had been a Broadway actress.  But all I knew about her was that she used to send Christmas cards from the Riviera to my mother's family in rural Maine during the Depression.  According to my mother, she would enclose a picture of her monkey.  Mom was impressed with the monkey.  And my grandmother always added sadly, "She was one's of Broadway's biggest stars, but she never married."

Through the miracle of the internet, I now know that my mother and grandmother were both wrong.  Maxine's monkey was actually a lemur.  And she did marry and divorce twice early in life (the second time to noted comedian Nat Goodwin).  Through Ebay, I've been able to get photographs of Maxine, her sister and fellow thespian Gertrude and Gertrude's husband, Shakespearean actor  Sir Johnston Forbes-Robertson, all of which now grace my bathroom.  I also got a little painting of Maxine's home in France and her biography (written by her niece in 1964)--all from Ebay.  Most important, I've learned a disturbing fact:  If my life is going to be even half as interesting as Maxine's, I'm going to have to get cracking.

Being perhaps Broadway's most popular actress in the first decade of the 20th century is only mildly interesting to a great, great, great grandniece who inhabits the 21st century.   But it turns out she was also J.P. Morgan's mistress for a number of years.  And she appears to have picked up his business savvy.  At the time, acting was a glamourous but not necessarily lucrative career.  So at the height of her beauty and popularity, she marketed a line of facial soaps and "cleaned up."  She acquired her own theater in New York--called Maxine Elliott's Theater.  Pretty soon, she was able to retire from the stage a very wealthy woman and move to London, where she fell in love with New Zealand's Wimbledon star, Anthony Wilding.  Wilding was handsome, dashing and quite a bit younger than Maxine, but they were engaged to be married.  When he was killed in WWI, she was devastated.  She purchased a barge to bring medical supplies and entertainment to British and American soldiers--her own combination USO and Red Cross.  God bless women (and men) who don't wait for other people to do useful things.

After the war, Maxine performed perhaps her most valuable service to the world.  She befriended a guy named Winston who had held a few odd jobs with the British government.  During the 1930s he was having a tough time of it.  It seems he had it in his head that the new German government was a bit of the threat, but he couldn't get anyone in Britain to agree.  During these wilderness years, he would go down to Maxine's home in France and paint for weeks on end.  She'd make sure he'd get enough food and rest, so he could go back home and fight it out.  According to her biographer, he was the only human being in the world she would allow to be late for meals.

Here's to you, Aunt Maxine.  Under the circumstances, the world should forgive you for your youthful indiscretions.  Who knows how the history of the world would have turned out if Churchill hadn't been able to relax somewhere warm and sunny?

May 30, 2007 | Permalink | Comments (6) | TrackBack (0)

More Krauthammer on Immigration
Mike Rappaport

He writes:

As the most attractive land for would-be immigrants, America has the equivalent of the first 100 picks in the NBA draft. Yet through lax border control and sheer inertia, it allows those slots to be filled by (with apologies to Bill Buckley) the first 100 names in the San Salvador phone book. 

The current reform would establish a point system for legal immigrants in which brains and enterprise count. This is a significant advance. But note: This new point system doesn't go into effect for eight years.  And who knows if a different Congress eight years from now will keep the current bargain?

Enforcement, moreover, is not assured:

In this bill, unfortunately, enforcement at the border is all bureaucratic inputs and fancy gadgets: principally, a doubling of the Border Patrol to 28,000, lots of high-tech sensors and four unmanned aerial vehicles (UAVs). And 370 miles of fence -- half of what Congress had mandated last year.

The amnesty is triggered upon presidential certification that these bureaucratic benchmarks are met -- regardless of what is actually happening at the border. What vacuous nonsense. The trigger must be something real. I propose a single amendment, short and very concrete: "The amnesty shall be declared the morning after the president has certified (citing disinterested studies) that illegal immigration across the southern border has been reduced by 90 percent." That single provision would guarantee passage of this comprehensive reform because most Americans would be glad to grant a generous amnesty -- if they can be assured it would be the last.

Krauthammer is more trusting than I am.  I don't believe his amendment would be adequate.  (It is probably not subject to judicial review, as written, but I would make it so, although that does raise other problems.)  In addition to the amendment, I would require the completion of a fence across the entire border.   

May 30, 2007 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 29, 2007

Memorial Day memories
Tom Smith

This is another post about my late father's experiences in WWII, which I have covered in previous posts, but I figure if you can't repeat war stories on Memorial Day, what is the day for.  You have been warned.

My dad's parents, as I heard it, had this friend who had been in WWI and came home in a bad state of what they called then "shell shock."  He lived with my grandparents for awhile.  Partly as a result of this, my grandparents were opposed to my father joining the military in any form.  As WWII approached, my grandfather used his connections in the motor trade -- he was an auto parts salesman -- to get my father a place in the maintenance  battalion (?), the unit in charge of maintaining the innumerable trucks, tanks and other vehicles in the Army.  Vital work, to be sure.  But not long after he enlisted in this capacity, my father had had enough, and volunteered for Officers Candidate School, one way to get a commission and into combat. 

He trained with tanks in Georgia, I believe, but came to dislike them.  At least until after the war, he had a fondness for guns, and that part he liked about tanks, but he told me hated the way the drove.  They were balky, hard to maneuver, and once he chipped a tooth when he brought one to a quick stop.  So, he transferred to the artillery.  The 105mm howitzer became his stock in trade, and there was not a lot about them he didn't know.  He became part of the 77th Infantry Division, a storied division from WWI, which bore the Statue of Liberty on its shoulder patch.  It began the war as largely New York City kids, but heavy casualties as it fought its way across the Pacific turned it into the usual American melting pot, including sons of auto parts salesmen from Idaho. 

Continue reading

May 29, 2007 | Permalink | Comments (2) | TrackBack (0)

More Google grumpiness
Tom Smith

Students in my M&A class know that Google, Inc is my favorite big corporation to be grumpy about.  I like a lot of Google products.  I actually know a lot about search technology for a law professor, and the Google search engine is a very darn impressive thing.  A lot of its power must be secret sauces other than PageRank, the patented algorithm that they sort of, uh, borrowed from Jon Kleinberg.  But somebody has to apply the original inventions of others, so why not two Stanford grad students?  Gmail is great, even though I live in fear all my deepest secrets will end up in the hands of some Chinese general.  Oh well.  He probably has bigger fish to fry than I. (But if you're wondering where the underground Mass is this Sunday in Beijing, I suggest you not send your query by Gmail.)  Pretty annoying also is Google's capital structure.  They have two classes of common, one with most of the voting power, the rest for the widows and orphans, CalPers and the rest.  Page, Brin and a few other own most of the voting stock.  That's fine on a certain level.  It's a free country, and your money.  But, what bothers me is having this J.P. Morgan (a hero in my book) style capital structure, at the same time as they cop this more-PC-than-thou, Bay Area lefty attitude.  The could more accurately call themselves Standard Google of California, or Amalgamated Google, Inc. and run around in top hats and tails than T-shirts and Birkenstocks.  Sort of, Dominate Globally, Pose Locally.  It just kind of makes me want to throw up, that's all. 

Of course I have heard about Google's investment in nee Wojcicki's start-up, but I thought that was Brin's own money.  I mean, seriously, the guy is worth 15 billion (or is it 17?), and he can't put his own measly $4 million into his girlfriends goofy start up idea?  Like VCs in the Bay Area would not fall all over themselves to put $4 million in just to cozy up to Google?  I mean, why not just say, "here's $4 million, dear.  Go play."  Having said this, who knows, maybe 23andMe will become the next Twitter, another bafflingly dumb idea that seems to have caught on big time.  And I have to admit, it is strangely addicting.  Those guys should be proud to have invented a new vice, not an easy thing to do.  But as to 23andMe, I doubt it.  The grump here is, why use Google's money instead of your own for what is pretty transparently a personal and not a corporate investment? 

My sources at Google, such as they are, say Page and Brin are checked out anyway, especially Brin.  I hear he spends all his time flying around on private jets being a rich guy.  What a waste.  Of money, I mean.  I mean, $17 billion under the management of a goof.  Supposedly Page and Brin showed up at a business meeting recently in their jammies.  And they weren't even blogging.  They sound like two Oriental royal infants who have to be indulged by their vizers.  J.P. Morgan didn't go to any meetings in his jammies, and neither did Rockefeller, Insull or any of the other great giants of American capitalism.  They ought to get over themselves and stop wasting their shareholders' money.   

UPDATE:  Wow.  The Google spiders picked this right up.  That's what I mean by impressive.  This is America, so we are right to take it for granted.

May 29, 2007 | Permalink | Comments (2) | TrackBack (0)

Monday, May 28, 2007

Legal and Illegal Immigration
Mike Rappaport

Ilya Somin argues that Ronald Reagan was in favor of immigration and did not seek to demonize illegal immigrants.  I think that is right.  And while this argument is a powerful one against some people who oppose legal immigration and focus excessively on the costs of the illegals, it hardly suggests that Reagan would support the kind of compromise currently being considered by the Senate.   Somin's post comes close -- but does not reach the position -- where one favors all immigrants, legal and illegal.  But I simply don't believe that was Reagan's position in 1986 or would be his now.  My guess is that Reagan would have appreciated the unfairness of favoring those who broke the law over those who play by the rules.  And my guess is that Reagan would have learned something from the fact that the 1986 amnesty for 3 million has led to 12 million today.

In the end, we don't know how Reagan would have reacted to the current legislation.  While he certainly would have embraced legal immigration, I don't see much in his record to lead me to conclude that he would favor a bill that failed to do more to secure the borders. 

May 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 27, 2007

Pai Gow goes down
Tom Smith

Feds crack massive casino fraud ring operating in San Diego County Indian casinos.  Apparently, the ring would corrupt dealers at blackjack tables, getting them to do "false shuffles," which would enable fraudsters at the tables to fleece the house.

May 27, 2007 | Permalink | Comments (0) | TrackBack (0)