The Right Coast

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

A Member of the Law Professor Blogs Network

Wednesday, February 29, 2012

Your tax dollar at work
Tom Smith

So at the same time we are cutting off water to the Central Valley to protect a little fish hardly anybody cares about and hardly anybody would miss, we are planning to spend billions on a magic train in the same valley to take people from one town to another already conveniently connected by a modern freeway.  Surely it will turn out, if the magic train is built, that it will turn out to have been cheaper to buy everyone who might take the train their own car and a lifetime's worth of gas. We're talking about Fresno and Bakersfield, dear readers.  Has anyone ever, I mean ever, travelled between these two hard working, if arguably not extremely charming burgs and thought, gosh, I wish I could have made that trip in a high speed rail car?  I wish I had me a bitchin' IROC Camero, yes.  I wish I could travel by high speed rail, no.  The only possible explanation for a project this dumb are the insiders who are going to make a fortune building this boondoggle.  It would be so much cheaper to just make them say, Grand Chevaliers of the Order of the Leech and award them pensions or something.  You could probably buy them off for a few million.  Then at least you wouldn't have to watch a giant empty train speed by you as you drove north on the 5.

February 29, 2012 | Permalink | Comments (3)

The privilege of being an American
Tom Smith

For this privilege, you owe the government.

February 29, 2012 | Permalink | Comments (0)

Tuesday, February 28, 2012

Why is whig history so wrong?
Tom Smith

I like to read history.  I was a history major in college and considered becoming a professional historian, but was dissuaded by the I believe accurate belief on my part that I would not be very good at it, as I read slowly, have trouble remembering what I read, and if I take notes, read more slowly still.  If you want somebody to go through an archive and come back in one lifetime, I'm probably not your man.  But I figure I'm more qualified than most to be a consumer of what historians produce.  Presumably they enjoy occasionally being read by somebody other than each other.

If you read history at all, you will find nothing is more common than to read of the horrors of looking for the seeds of the present in the past.  For example, this missive. This idea that the past somehow led to the present, and that the past was as it were getting ready to become the present, is often called Whig history.  Whig historians, especially of the English constitution, saw history as leading inevitably toward the more classically liberal and enlightened present, namely Gladstone's England.  This is supposed to have been a very silly thing for them to have thought, something we are fortunate in having grown out of, but presumably not inevitably.

But the problem is supposed to be much broader than mere Whiggish historiography would suggest.  Any sort of reading back of the present into the past is supposed to be a kind of ultimate historian's crime that undoes the whole point of doing history, sort of like cheating at chess.  

This is where I begin to cease to understand what is going on.  What exactly is so bad about seeing in the past the origins of the present?  Somewhere or other some of the people of northern Spain and Southern France, to wit, the Basques, got good at herding sheep and various sheep related activities.  Sheep entrepreneurs in nineteenth century Idaho and Nevada needed people who knew sheep to herd them.  They brought over Basques.  They prospered, multiplied and now many people of Basque heritage are to be found in that region of the US.  What would be so wrong about trying find out why this happened and concluding, well, had the Basques not gotten so good with sheep (for reasons you could investigate further) you would not find so many of them in Idaho and Nevada today.  If you were interested in why representative institutions, what we quaintly think of as republican forms of government, are much to be found in countries that were settled (which much injustice, etc. etc.) by northern Europeans, what exactly is so wrong about looking into the history of these peoples and their ways of doing things to (help) find out?  In short, the idea that that there is something illegitimate or unhistorical about wanting to use history to help understand the present has about it the sort of bizarre counter-intuitiveness that is usually a symptom of some peculiar academic stance like the notion that the last thing science or mathematics should do is somehow improve the lot of humans on this planet.

There is also something just logically incoherent about the view.  Presumably it would be difficult to do history of any sort if one took the view that nothing that happened in 1200 could shed any light on what was the case in 1201.  But if you can't really understand 1201 without understanding 1200, might it also be the case that 1648 sheds a lot of light on 1787?  If the present didn't come out of the past, where precisely did it come from?  I would be the first to admit that our current plight refutes the notion that all moves ineluctably toward enlightenment and liberality, but the prejudice against looking to the past to try to understand the present goes far beyond that, as if one were going to church to meet eligible women, another unjustly criticized practice.

I suspect it is like so much else, just another strange manifestation of the loopy politics that infests so much contemporary academic inquiry outside of the hard sciences.  Whig history is bad not because its unscientific, but because it is whiggish, and whiggery is bad because it is inconsistent with X, where X is a point of view expressible only in terms that are lofty, inpenetrable and perfectly opaque, and so, like absolute monarchs, beyond criticism by the mere likes of us.

February 28, 2012 | Permalink | Comments (11)

Climate change will bring earthquakes
Tom Smith

Evidently not a joke, or not intentionally anyway.  I searched in vain for anything that might be called evidence, in the loose sense of something that made me think, oh, that does rather seem as if climate change must be causing earthquakes.

February 28, 2012 | Permalink | Comments (3)

Mommas, don't let your babies grow up to do yoga
Tom Smith

Of course it's a sex cult.  How could it not be?  Not that there's anything wrong with sex cults, etc.  Do you mind if I ask you where you got your pad?  It's so kind of comforting looking.  Hey, I was just about to get a latte, etc.  How could it not be a sex cult?

In other news.  Forget yoga.  It's national pancake day!  I make awesome pancakes.  Here's my recipe.  Take 2 cups of flour and mix in a heaping TBS of baking powder and a pinch of salt.  Ditto 2 heaping TBS of sugar.  (If you add fresh lemon juice later, add more sugar to balance out flavor, to taste.) Whisk in 2 cups of 2% or whole milk (not skim) and 3 eggs.  Then whisk in a whole stick of melted unsalted butter (my secret!).  Then if you like add some fresh berries, or thawed out frozen berries.  Grill on a not too hot grill.  To reduce calories, use canola oil on the grill.  Serve with melted butter and hot maple syrup.  And maybe more berries.  Whip cream if you like.  Allow 2-3 hours for recovery.

February 28, 2012 | Permalink | Comments (1)

Monday, February 27, 2012

You don't have to choose between Israel and the US
Tom Smith

I find the whole accusation that AIPAC is "Israeli first" or suffering from "dual loyalty" ridiculous because it always comes from people who don't seem to like America much either. There are people who like both the US and Israel and people who don't like either, but few who like the US and not Israel.  Maybe a few ancient paleo-conservatives, such as the throwback Pat Buchanan, but they are indeed relics.  It seems obvious to me that Israel and the US are natural allies and they have the same natural enemies.  

This doesn't mean that US or Israeli policy makers are always right in deciding what is in their best interests.  But haters of Israel rarely or never have the interests of the US at heart.  The sympathy of the US left for the Muslim totalitarian right has always seemed baffling to me; I suppose it is just the enemy of my enemy thing.  But hopers for Israeli defeat are hardly cheerleaders for America.  They hope both fail.  Their sympathies lie with various third world dictators and hopeless causes and sometimes oddly enough with the Chinese.  Because our public political culture is mostly unwelcoming to anything but the softest left, leftish sympathies emerge like weird, buried psychopathlogies, in slips of the tongue and irrational outbursts.  One of which is the simmering hatred for Israel and Jews unwilling to apologize for being such.  It follows of course that nothing could  be more ironic than various Israel haters accusing anyone of dual loyalty when they are, roughly speaking, the same people who could see our burning towers from our enemies' point of view, even as our brothers and sisters jumped to avoid the flames.

February 27, 2012 | Permalink | Comments (1)

Israelis face challenges in any Iran attack
Tom Smith

Interesting military analysis from BBC.

February 27, 2012 | Permalink | Comments (0)

Food fascism
Tom Smith

This is unbelievable.  Well, quite believable, unfortunately.  Here's a novel idea.  Groups of people interested in gardening and farming ought to be able to get together for a pot luck dinner without the government getting involved.

February 27, 2012 | Permalink | Comments (0)

Saturday, February 25, 2012

Formalism and realism
Tom Smith

Here is a link to a review by Scordato on Tamanaha's book on legal realism and formalism (which I actually read early in 2011 and enjoyed very much).

I liked T's book, but as hard as it was on the 20th century legal realists, I don't think he was hard enough.  Their version of legal history seems not just wrong, but bordering on an ideologically inspired, deliberate falsification of the past.  On second thought, strike the "bordering on".  But T still deserves a lot of credit for starting the work of undoing the damage that the legal realists' false characterization of the legal formalists, if that is even the right term for classical jurisprudence, has done.  But I do have a problem with T's account which still seems to be saying something like, the formalists were a lot more reasonable, that is realist, than they get credit for.  He does not seem to have in mind a version of formalism that a reasonable person might subscribe to, but assumes some form of realism is what all reasonable jurists must believe deep down.  So his book has something of the flavor of a liberal telling his friends that his conservative friend is really more reasonable, i.e. liberal, that he seems.  Not a defense of conservatism.

Scordato makes the good point that formalism in the form of, I'm just here to enforce the law, and interpret it when necessary, not to create law or policy, is the official line of everyone who is nominated to the bench and every legislator who opines on this.  How could this be, if we are all reasonable realists now?  Good question, and the answer is, because we're not.  The problem is actually worse than this.  Not just judges appearing before the Senate, but the vast majority of sitting judges and serving legislators actually believe in common sense formalism, and a good thing too.  It is only in law schools, I would claim, that some form of realism is nearly universal. I think this gives academics a very distorted view of the supposed consensus on realism.

I personally have always found realism an incoherent philosophy of law as I'm sure some jurisprudes do.  S is absolutely right that realism does not explain the hierarchical structure of the judicial system, which sure seems to presuppose that there are legal rules that errors can be made about and subsequently corrected by better reasoning or interpretation.  But it goes far beyond that.  The whole idea of reconciling legal authorities that are in tension with one another, a process from which Western jurisprudence might be said to have grown, presupposes that logical coherence and consistency, those features of rules, play an essential role in any processes that can be thought of as legal.  The whole idea of a legal rule that controls what officials can do is inseparable from the idea of a legal system, which is a system of rules, be they crisp or squishy. Legal realism of the sort we were exposed to at Yale back in the 80s, which was left over from the 1930s I suppose, seemed little more than disparaging the flimsiest of straw men, a mechanical jurisprudence that never existed -- Tanahama shows that -- but also mischaracterizes badly what a legal system that takes rules, and lots of 'em, seriously, would actually look like.  

Of course every legal system, if it is a legal system, is to a degree mechanical and if it's not just a mathematical exercise, to a degree not.  A twenty year old pickup, that wiggles and squeaks a great deal, is still a mechanical system.  That it does a great deal it can do in part because a lot of it is not rigid, hardly makes it less mechanical.  Part of how it works may not be explicable in terms of standard mechanics.  You might need chaos theory to predict exactly when it will start or which way it will hop on a bump.  But if you want to understand the thing, you are going to need to appreciate its mechanics at a minimum.

I'm sure I'm not the first to notice that legal realism seems to have been mostly an attack on legal rule-following by those who found those rules inconvenient for their political projects (Progress! Science!), like the man who discovers that marriage interferes with his self-realization and so is actually morally non-binding shortly before he hopes to commit adultery, as prescribed by some embarassing book about personal relationships circa 1974 and inspired by the availability of a hot receptionist.  Now that's realism.  One wonders why such special pleading should be taken seriously at all, but it has to be, if only because it has done so much damage to the project of the rule of law.

February 25, 2012 | Permalink | Comments (1)

Friday, February 24, 2012

Battle of Jamul is on again
Tom Smith

Oh great.  I thought the casino idea was dead but I guess not.

February 24, 2012 | Permalink | Comments (0)