Judge Roberts Gets the Nod
As virtually everyone has reported already, Judge Roberts is now Chief Justice Roberts. Congratulations to the Chief Justice!
(I just checked. There are at least five people who have purchased this shirt.)
As virtually everyone has reported already, Judge Roberts is now Chief Justice Roberts. Congratulations to the Chief Justice!
(I just checked. There are at least five people who have purchased this shirt.)
Everywhere you turn, there's a sign in New York telling you that "This fall, a woman will be president." No one who's sane will bet that the Republicans will take the White House on the West Wing. It seems that in Hollywood fantasyland, the Democrats are always smarter, more popular, and more in touch with the national psyche. What's a conservative to do?
Ironically, I suggest turning to the BBC.
Republicans looking for their political fix could do worse than investing in the House of Cards trilogy, a political melodrama that makes The West Wing look like Romper Room. Talk about political fantasy: in this series, the prime minister who replaced Margaret Thatcher is a scheming, traditionalist member of the Scottish aristocracy, quick on his feet, exciting in debate, and with a keen eye towards the polls. Unlike the feckless John Major, Francis Urquhart is easily remembered a few years after he left "office."
(If you're a Netflix customer, you can reserve it here.)
Heidi Bond is questioning a piece by Prof. Ian Ayres on textbook prices. Ayres is never short of interesting ideas. (You'll remember he's the one who wants to make reckless sexual conduct a crime.) But like most of his ideas, this one seems to protest too much.
Essentially, Ayres is suggesting that the textbook market suffers from too little competition among producers, and that universities should compensate for this problem by buying textbooks for their students and providing them as part of tuition. In a way, it's not a bad suggestion: he points out that the university will then care whether the professor assigns the most expensive textbook because it will at least partially affect the school's budget. The degree of this effect will be minimal, of course, to the extent that the money can be passed on.
But one wonders if, even excluding the pass-through, the net effect of this wouldn't be pretty marginal. First of all, universities would have to review each professor's textbook decision to make sure it meets a cost/benefit analysis. Since they already employ the professors to do precisely that, I'm not sure putting the oversight infrastructure in place won't outweigh the efficiency gains. (He contrasts this with textbooks in K-12 education, but ignores the fact that there's normally a standard statewide or local curriculum.) 
Prof. Ayres might be better off with a little less command and control and a little more reliance on market information. At least at Columbia Law School, the university authorities are a positive hinderance to cost competition. Every semester, I face the choice of going to our overpriced university bookstore (a Barnes & Noble affiliate with non-discount prices where I can't use my B&N membership) or Labyrinth Books, the quaint and predictably useless academic bookstore down on 112th. The former is brightly lit to the point of flourescent sterility, while the latter is cramped, untidy, and until recently forced you to leave your computer bag at the front desk if you wanted to walk in the store. (Your several thousand dollar IT investment left, of course, at your own risk.)
But these were my choices. Professors provide lists of the books they need to these two bookstores, and the only way I learn what I need is to walk over a few days before class. More annoyingly, sometimes the book only seems to be ordered by Labyrinth. Never mind that Amazon (or even B&N's online store) are usually much cheaper and offer discounts. Some of the books would have to be ordered weeks in advance, so without a booklist, I either do without the book for the first few weeks or I make my purchases bricks and mortar.
It wouldn't be difficult to get rid of these information barriers. Every book has an ISBN number that makes them exceptionally easy to index. For a trice of the administrative overhead of Ayres' system, Columbia could set up a website that lists the books required for classes and links to Froogle-like searches for the best price. (Students would also be able to see up-front which courses cost more due to pricey texts.) If you were really worried about costs to students, you could easily set up online markets in used textbooks, thus removing the middleman-costs of the used textbook market in the university bookstore. (Many of my classmates use the Amazon Marketplace or eBay for this already.)
Of course, unlike Ayres' proposal, which puts the power in the hands of professors and administrators, this lets consumers make choices and pits the producers against the power of the market. Indeed, if the system were made open and universities were encouraged to submit course lists to a central site, consumers would now be able to compare processes across universities. All without particularly high administrative costs.
:He may also overemphasizes the conflict of interest involved in a professor assigning his or her own textbook: sure, Ayres earns $11 a copy on each textbook he assigns, but I have never for the life of me thought a professor assigned their casebook for the money. I usually put it down to wanting to teach from the book they helped write. Call it convenience or ego boost, as you will.
Yesterday, Tom Delay is indicted. My traffic almost doubles. I'd not actually linked the two events, and spent a while trying to see if I'd been Instalanched.
But apparently this entry is extraordinarily high in Google for such terms as Ronnie Earl political. That's not entirely surprising, I suppose, but there is some irony in scoring so well for how to get an indictment in Texas (not like I'd know) or support Ronnie Earl (not that I do).
Anyway, to those visiting, welcome and I'm sorry you'll find this is not really a blog about Texas politics.
Someone has sent me a suggestion for something to end three years of hell...
I love my friends.
Do two things:
a) Check your syllabus to see if you do anything on insider trading. (Mine did, I don't know if all of them do.)
b) Go read this good summary of Bill Frist's situation. (Hat tip: Prof. Bainbridge.
If you have to know this by semester's end, you might as well see how it plays out in practice now. The law in this area is interesting, intricate, and at least in some Corps classes, likely to be on the exam.
Via Prof. Leiter, one learns of an obscure Journal of Religion and Society article purporting to show that the more religious a society is, the more "dysfunctional" it is. You can save a lot of reading if you just trust me on this: the report is crap.
If you don't want to trust me, read on. Much like the New Politics Institute's study on blogs (also linked from Leiter--notice a trend? Yeah--why do you still read it?--ed), the study is an exercise in deciding what you want to prove and then choosing the statistics to get you there. The point of such academic work is transparently obvious: they get you into the media (such as The Times of London), who don't think very much, or bother asking anyone else for a contrary view.
(Oh, yeah: a lot of blogs link to you, too.)
The first sign that the report's not very robust is the selection of what is included in "societal dysfunction." Nowhere is the term defined, and nothing that fails to support the thesis is included as dysfunctional. I would have thought one measure of societal dysfunction was long-term unemployment rates. After all, a functioning society is going to be providing its people with measurable employment. However, according to the Journal of Religion and Society, it seems that a society can be both completely functional and completely out of work. Furthermore, while the report considers homicides (which occur more frequently in the U.S.) to be a sign of social dysfunction, it seems that car theft, contact crimes, and burglary (in which the U.S. does not lead at all, see p. 17) are signs of a healthy and functional society. Either that or atheism promotes car theft, which puts a whole new spin on "property is theft," I guess.
So far, so silly. Then there's the choice of what countries qualify. "Prosperous democracy" doesn't include Israel, even though its GDP/head compares favorably with Portugal. Given the religious nature of Israel, one would have thought it would be a good case study, but the study inexplicably excludes it. What the report actually covers, it seems, is Europe, some of its former colonies, and Japan.
Even better is the data for abortion, where the report is simply wrong. It states: "Abortion data (Panchaud et al.) was accepted only from those nations in which it is as approximately legal and available as in the U.S." (This, of course, makes no sense: if a society is religious enough to limit abortion, why not include the lack of teenage abortions on the graph, especially if you will consider their teen pregnancies?) It then continues, "Increasing adolescent abortion rates show positive correlation with increasing belief and worship of a creator, and negative correlation with increasing non-theism and acceptance of evolution; again rates are uniquely high in the U.S. (Figure 8)." But the report's data is questionable. The abortion rate given for 15-19 year olds for the U.S. (higher than 28) is considerably higher than that given by the CDC (about 24, or equivalent to Australia). Further the source cited for the abortion figure in the report (available here doesn't mention abortion at all. (Say what you want about peer review, at least law reviews make someone check the numbers.)
But the other interesting question about Figure 8 is why Japan isn't listed. Abortion is legal in Japan, and has been since well before Roe. And statistics a're not hard to find, even in English: they're reported in English language news and show up as hits on Google. (The Japanese report referenced, with handy pop-up translation help, is here.)
But including data from Japan subtly undermines the thesis. Japanese abortion rates in the 15-19 age cohort are low (about 12%), but have doubled in the last ten years, while U.S. rates have been falling. (Also, Japanese age of majority is 20. This probably makes some difference, as the U.S. rate increases sharply between 17 and 18.) And Japan's overall abortion rate (which, it seems, is not a function of "societal disfunction") is in the middle of those for the JR&S's countries despite its lower rate of theism non-theism. (see p. 28)
So what's happening? Is Japan getting more theistic, and hence more likely to have underage abortions? Not bloody likely. The Japanese abortion rate has always been pretty high, while at the moment they've been undergoing a bit of a sexual revolution: they may not have been theistic, but Japan has remained far more traditional than most western countries until recently, and in that I'd include the U.S. It's likely that rates of teen sex are rising. In the meantime, it's only been five years since the pill's been legalized and takeup has been slow, but if that becomes more common (and condoms less so), I'd expect to see the abortion rate among the young continue to rise.
I'd wager that for any given statistic in the piece, you'd be able to tell a similar story: the factors and trends change over time, with very little to do with any given preference in messiah. In the end, not even the report pretends it can show causation. You can drive a truck through the holes in the logic. So why bother?
It's worth criticizing because some people find that this kind of half-assed scholarship is acceptable if it confirms their preconceptions about religion. Let's imagine a study that compared factors other than theism. For instance, Japan is remarkably racially homogenous, the European countries are a bit less so, and the United States is rather remarkably mixed. This mixture is a good thing, just as in general religion is probably a good thing. (Let me stress that before someone misinterprets what I'm making obvious: OUR DIVERSITY=GOOD THING.) Yet if you're only meaning to "spark debate" and have no intention of decent analysis, see what you could do with the CDC charts on teenage abortion above. The non-hispanic white numbers aren't much more than the Japanese (especially adjusting for a differing age of majority), after all.
If you were to regraph the charts in the JR&S report with "degree of racial homogeneity" along the bottom instead of a belief in God, I can't believe Prof. Leiter would repost it with only the glib comment "Of course, correlation is not causation..." (Or put it in a section giving the racial equivalent of "Texas Taliban Alerts," for that matter.) Does anyone suspect the Times would headline a story "Societies worse off when racially diverse"? Or think that no other expert would be quoted to give perspective?
Of course not. On the topic of race, no one wants to look an idiot.
If one were to look for U.S.-based differences that explain the statistics given better than religion, it doesn't take a genius. For the health-care related ones, for instance, I'm pretty certain the United States is the only nation listed without a national health care system. (Actually, I wonder if the infection statistics differ between curable and non-curable STDs: presence of a national health system could well affect those numbers, as the spread of curable vs. non-curable diseases should differ with access to health care.) Japan has a much lower murder rate, and also makes it incredibly difficult to get a gun. But health care and gun ownership are not matters of theism, any more than atheism makes people likely to steal cars or be unemployable.
In the end, you can create this kind of report by finding one area in which the U.S. is exceptional and graphing it against any number of others in which we're exceptional. Then you call that dysfunction, blame the cause you chose, and call it a day. Assuming you can find a journal to publish you, a professor who won't critique you, and a newspaper too lazy to read what you've written.
UPDATE: Best line I've seen concisely summarizing the silliness of this study? "Rejection of secular humanism gives your kids gonorrhea!"
Commander in Chief premieres tonight and opens to mixed reviews. This tale of a VPOTUS-turned-POTUS gets kinder-than-deserved treatment from The New York Times ("a political fantasy, a feminist-twist on The West Wing") and a predictable downer from National Review (which points out that as lefty fantasies go, it proves a lot: the word "Republican" is mentioned for every villain, but "Democrat" not once in the pilot). Slate calls it "The West Wing with extra cheese." Thankfully, my television still gets horrible reception, so I won't have to see Geena Davis ruin a role that would be perfect for a movie sequel. For those of you in similar despair, I offer fives reasons why Speechless II would be better than Commander in Chief.
: UPDATE--Now that I think of it, if the CiC writers had any kind of real guts, they'd have switched gender expectations on boths sides. Bonnie Bedalia as an evil right-wing Senate Majority Leader would have been a fantastic choice with intriguing storytelling oppotunities. Come to think of it, even a second-rate comic book can push the boundaries far enough to have a major character be a pro-life Democrat.
UPDATE II: There's an old joke about Rupert Murdoch launching Fox News to address an underserved niche market--half of America. As television planners are desperately trying to get viewership back from the internet, I'm befuddled by their strategy. On the one hand, we now have two shows with Democratic Presidents (ok, one "independent") to satisfy political wish-fulfillment. Meanwhile, a thoroughly moderately-written, not particularly exciting drama that takes religion seriously--WB's 7th Heaven--is starting its 10th season. That's not just the longest-running family drama ever, but it's got more legs than Buffy and its spawn and unless I remember incorrectly The X-Files, and is getting towards the age of Murder, She Wrote. Looking at other 1996 shows, I see that Wikipedia lists Spin City and Everybody Loves Raymond. Am I just reading my demographic tea leaves incorrectly, or is there some ad space waiting to be sold here?
Professor Bainbridge gives the shortest and most appropriate eulogy. I'd like to add that not many comedians make their mark on the law of professional responsibility.
After writing one long piece on that NPI report on the left-wing blogosphere, one more thought sprung forth on its peculiar myopia. The report says of right-wing blogs:
Progressive blogs build communities of activists and generate new political activity online. Blogs and online organizations offer forums where people can actively engage in progressive politics - real involvement from people talking about politics, policy, organizing, their lives, etc. The degree to which progressive blogs encourage active engagement in political dialogue has fueled their rapid growth over the past several years.
The single most important difference between the blogospheres is this: the progressive blogosphere is introducing new actors into the political scene. The right-wing blogosphere is facilitating further organization of what was already a fairly coherent political world.
Take the Dan Rather controversy that the authors so deride. Whatever one thinks of Instapundit, the players brought into the game by blogs weren't limited to "nodes" like Prof. Reynolds. Instead they included handwriting experts, computer specialists, and all sorts of other authors who prior to this only had a forum if a journalist or someone with access to the media chose to speak to them.
The trouble with the NPI report is that it's focusing on the top end of the blogosphere, as they define it. The interesting thing about the blogosphere is that even with the kind of Kos/Reynolds concentration in a few sites, there's still a lot of vitality in the small players. Not all the life of the network is in the nodes.
The left-wing New Politics Institute publishes "Emergence of the Progressive Blogosphere: A New Force in American Politics." It's echoed at The Huffington Post and then at Brian Leiter. Its message: the progressive blogosphere is now much larger, a much more potent political force, than the conservative one.
I never thought I'd see the left driven to jealous apoplexy over supposed conservative "dominance" of a medium. Some days the Gods of Irony shine their love upon me.
Given that almost anyone can start a blog, I doubt it matters much whose dog's bigger in this particular fight, but Leiter's commentary, as always, gives rise to a chuckle at the self-delusion of it. In putting forward his guess at why the left-wing blogosphere has grown more than the right recently:
My guess would be that the blogs "on the left" are actually fairly far to the left of the traditional media, so they provide an outlet and opportunity for points of view that are often invisible in the major media. The right-wing blogs (InstaIgnorance et al.) are, by contrast, largely echo chambers for the same conservative propaganda that is served up on Fox TV, the Wall Street Journal editorial page, Rush Limbaugh, and numerous other media outlets which already reach tens of millions of people. Since the right-wing blogs provide less new "perspective" and less new misinformation, they have not attracted as many new readers as the blogosphere has become better known. By contrast, many of the blogs "on the left" really do provide access to information and perspectives that are almost invisible in the mainstream media, from CNN to The New York Times to National Public Radio.
Conservatives use the same tactics on blogs that they do in mainstream politics – attack the media and attack progressives. The right wing tends not to build independent online communities, using their existing offline communities to generate web sites that reinforce their politics and their ideology.
The political successes of this community have been largely founded in manipulating media coverage. The two clearest examples are the John Thune bloggers in South Dakota, and the Dan Rather scandal.
Progressive blogs build communities of activists and generate new political activity online. Blogs and online organizations offer forums where people can actively engage in progressive politics. Below is an example of a digital community with comments – real involvement from people talking about politics, policy, organizing, their lives, etc.
According to research conducted by MyDD.com, as of July, 2005, the ninety-eight most trafficked progressive blogs totaled an amazing 15,181,649 page views per week, an average of over two million daily page views. That is over five times the size of the entire political blogosphere just two years ago.
By way of comparison, the top one-hundred and fifty conservative blogs had less than ten million page views per week during this period, and just over one million unique visits a day. In less than two years the progressive blogosphere had grown from less than as big as the conservative blogosphere, to nearly
double its size. Nowhere is this rise more apparent than in a direct comparison of the largest progressive and conservative sites.
(UPDATE: Another way to think about this is to quote from the DailyKos FAQ: "Diaries are coming in at nearly 200 a day these days, many of them widely judged to not be worth the effort." DailyKos thus isn't "one of the ninety-eight most trafficked progressive blogs," but is more than 98 blogs in and of itself.)
Measuring "visits" to such a site isn't a real sign of its influence, because many of the visits will simply be posts by users of that community, and many of these posts--due to its size, if nothing else--will be infrequently read. (In this sense, DailyKos is a lot like FreeRepublic, and that's not really a compliment.) So when the New Politics Institute compares traffic to Instapundit and DailyKos (see page seven of the report), they're underplaying the fact that Instapundit gets his traffic all on his lonesome. The New Politics Institute picked its criteria--presumably intentionally--in order to include traffic from what aren't really "top bloggers" (Terrance is much closer to my influence than Reynolds or Kos) in the left wing tally. If I read Ex Post, it's not really much different from an average Kos blogger reading another Kos blogger, but MyDD's report doesn't add us to Instapundit.
(UPDATE: As one of the commentors on MyDD mentioned, page views are a pretty bad metric when you're measuring apples and oranges in any event. FreeRepublic, for instance, is a bulletin board site, as is Democratic Underground. In reading a similar amount of content, you're likely to click through many times more pages on a bulletin-board site. Similarly, my RSS reader might hit Instapundit 12 times a day--once an hour. That gives him 12 separate visits, but doesn't mean I'm reading him as obsessively as the page views would suggest.)
A better, and much less biased, view of influence can be found in Technorati. Technorati measures influence in link behavior, or how many people are citing a given piece of writing. And here you find pretty much what you'd expect: Kos and Instapundit are pretty much dead level.
This isn't a slam on community sites: indeed, I'm a bit envious of TPMCafe and related ventures, and I wrote all throughout the last campaign as to how the left was using the internet to revolutionize its organization, to charge its grassroots, and to engage activists. These are all achievements, and I wouldn't mind seeing more right-wing community sites flourish. But the NPI report was obviously written to influence headlines and push the "rising lefty blogosphere" meme into the media. For those on the left more interested in reality than spin, just make sure you don't start believing your own press.
Last week, the player simply stopped working. Indeed, it stopped responding to any commands once turned on, including the "off" switch. I tried everything suggested on the website, including flashing the firmware and formatting the drive, but eventually came to the conclusion that the problem was beyond me and it would need to be returned. Fortunately, I'd bought it twenty-nine days ago.
So I called Creative's customer support. I didn't want to return the unit for another if it could be easily fixed, and figured that getting service out of Creative would be easier than a refund from Amazon. At which point the member of Creative's technical team turns into a salesman.
It seems that Creative's technical support won't pay for inbound shipping on the return. In and of itself, this would be a minor grumble, but then she informs me that if I am willing to pay for the special extended warranty, they'll pay for all shipping for this and any future problems that occur in two years. The gall of this sales technique prompts me to issue two official Three Years of Hell Official Guidance Notices for How Not to Make Your Customer Service Look Like It Is Managed By Malevolent Monkeys:
To Creative's technical department: If a customer calls up with a player that's failed within 30 days, you might want to get the unit back just to see what happened. Given that it failed after installing one of your upgrades, you might want to see if something is going wrong. Especially if the problem has already received a number of complaints on your support forum. (Then again, maybe you know and you don't care.)
To Creative's marketing department: If your genius idea of marketing an extended warranty plan is to offer it to a new customer with a failed product, look at what you're signalling. (1) You're asking me to pay a lot of money for a warranty to avoid a smaller shipping charge. (2) You're asking me to pay more money when I'm legitimately annoyed that your product failed. (3) You're telling me that I should pay now because over the two year lifetime of the product, I should expect it to fail again.
So in the end, I packaged the product back up, used Amazon's helpful return and exchange policy, and am now on the waiting list for a similarly-priced iPod Nano. I just have to figure out how to get all my music to be recognized.
Before I move on, I wanted to address some of the comments to my musings on Michael Newdow and his latest crusade to remove "under God" from the pledge. Besides the usual and pleasant debate in the comments, the thread was picked up by Will Baude and PG. Having read these, I realize that there are a few things that I didn't make clear enough.
(This is long because I'm thinking it out for myself. Unless you're quite interested, I suggest you skip to other topics. Part III will appear shortly.)
1. "Injury in fact" for purposes of standing does not always mean "injury" in a non-legal sense My musings on Newdow's case were not meant to concentrate on the question of whether Newdow (or his daughter) suffered harm sufficient to get standing in a courtroom. While a potentially interesting question, there are plenty of cases in which "injury in fact" may be sufficient to get a case into court that--with our legal blinders off--we'd most likely agree don't belong there. A curmudgeonly old fellow who, after yelling at his neighbor's children to get off his lawn, makes his way to the local courthouse to file a trespass claim might very well have suffered an "injury in fact." Assume, arguendo, that the state in which he resides has no de minimus exception to his right not to have his land walked upon by neighbor children: he may demonstrate an injury sufficient to get into court. Nevertheless, his neighbors would be correct in calling him a cantankerous old coot, whatever his legal standing.
Now, we can alter the facts in order to make the damage the fellow experiences sufficient that his neighbors would probably find his resort to the courthouse justified: perhaps the children are treading on his flowerbeds, and his attempts to get their parents to restrain them fall on deaf ears. Or maybe the parents continually pay him for the cost of the lost flowers, but he's too old to want to be replanting them all the time. Whatever, there exists some line beyond which a non-legal observer to a court case will consider a complaint to be justified--the plaintiff to have actually been injured as opposed to an "injury in fact."
The question is not, as Baude puts it with what I assume is his trademark flippancy, whether "there is absolutely no harm done when the state forces people to profess belief in things they find abhorrent," but at what degree of harm is it worth literally making a federal case of it?
2. The way in which atheism is unique In attempting to find some way to divide Establishment Clause injuries between those that seem serious concerns and those that I would consider more petty complaints, I suggested that the line should be something like: is the believer forced to perform an action for which some force beyond his own conscience would impose a penalty? In this sense, atheism is unique only because an atheist cannot point to any force beyond his personal preferences that he could suffer. That's not to say that a religious person isn't able to be similarly affronted, or would find it impossible to raise a similar complaint to an atheist. Just as the old crank can be somewhat fetishistic about the importance of his property line, so others may place a stress on the importance of the Establishment Clause beyond the practical. In this sense, Will Baude's wish to analogize to Lee v. Weisman, 505 U.S. 577 (1992), misses the point somewhat.
I didn't bring up the Weisman case precisely because on the facts of it I couldn't tell which side I'd be on. In Weisman, a Jewish father objected to a prayer being offered at a middle school graduation ceremony. In the year in question, the school had chosen a rabbi to deliver a non-denominational prayer to the graduating class. What the Supreme Court does not address--nor could I find through Google or a brief look at the record--is why the father objected.  It might be that Weisman's complaint falls on one side of the line: there is a religious reason why taking part in a ceremony in which a rabbi delivers a non-denominational prayer is contrary to religious commandment. I'm not an expert in Jewish law, and frankly would feel uncomfortable venturing into that territory.
Some things are true whether Weisman holds a religious or a secular objection. In either case, he certainly suffered an "injury in fact" sufficient in standing, and since Kennedy and four other members of the Court agreed, well, he suffered a violation of his rights, and now there is a legal cause of action if any middle school has the temerity to suggest a clergyman give a benediction at a graduation ceremony. Kennedy's interpretation of Establishment is, after all, now the law of the land. So much is not in dispute.
Yet it is completely possible that Weisman's reasons for bringing the case are exactly the same as Newdow's, notwithstanding the fact that Weisman was not--at least so far as the record goes--an atheist. In which case--and contrary to what Will seems to suggest I cannot have the temerity to be saying--yes, I would say that Weisman was making a federal case over not much at all. Like the old man and his flowerbeds, just because the law is on his side doesn't mean it was wise to go to the courthouse.
The uniqueness of the atheist I mentioned, then, was not that a religious person could never raise the objection of the atheist, but that the atheist can never raise the objection available to a theist. For purposes of the dividing line I suggested, that's significant, although it's not significant in the way some critics suggested. 
That's enough for the day: it addresses most of the questions I received last time. Part III will come sometime after I've finished my week's reading, and will deal with why I chose that particular dividing line, and some examples of church-state entanglement that I find pleasant, harmless, or even beneficial, and which I feel would be protected by my proposed rule.
: This is, of course, a question with an answer, and anyone who knows it or researches it is welcome to comment. I've left it unanswered both to explain why I chose the cases I did (rather than the ones Will found more appropriate) and because assuming that the answer is indeterminate, it illustrates quite well the point I was making.
: As an aside, one thing that has amused me about the conversation is the absolute insistence of some of my correspondents over email that it be conducted upon their terms. For instance, one emailer suggested that the problem in Gobitis was fundamentally a problem of enforced speech, specifically that there was no difference between asking a Wiccan, a Catholic nun, a Jehovah's Witness, or an atheist to recite the pledge.
This is simply untrue as a matter of doctrine. I can't speak for any particular Wiccan, but for the others the nature of the harm would be very different. For the students in Gobitis, the problem was idolatry, specifically the act of saluting the flag. It was not, as it would be for the atheist, asking them to state something which they didn't believe. As I understand it doctrinally, they would be similarly affronted to have to pledge to a flag if the words contained "under God" (which they didn't) or were a reading of the second commandment. For the Catholic, it might be different still, although I'm not venturing into those waters as I don't know the doctrine well enough.
I know that lately it seems as if I spend more time tinkering with this blog than actually blogging. While it's a valid criticism, I think I finally have things to the point where I can develop on here instead of bugfixing. And for my readers, this weekend marks a turn towards actual coding responsibility on my part: I've set up a fully-functioning development site on MT, so that before I make any changes I can test them out. This is something I should have done two years ago when I started the blog, but then again, when I started this Moveable Type was a much simpler piece of software.
This probably won't be the last time I tinker with things before I shut down the blog, but at least everything I do from here on in should be development instead of bugfixing. For instance, I may mess around with making my comment individual entry archives generate dynamically. (For me, this wouldn't be a big plus, but for a higher-traffic website like Crescat Sententia, it might make a big difference, as the rebuild time on that site remains pretty severe, or at least it does whenever I ping it.) Likewise, MT's new stylesheet format presents a lot of intriguing options. Because TYoH's layout is now completely determined by layers, it might be possible for me to revise my stylesheets such that some styles are two-column and some three.
But in the short run, I've done enough programming for now. It makes a good break from work or writing, but I think it's time to get back to blogging about other matters.
Things may get funny over the next few minutes...
UPDATE: OK, that seems to be going mildly well: things are rebuilding. If this site looks really bad, please try clearing your cache: you may have the old stylesheets stored in your browser. (Also, give it until about 9:45 tonight. Rebuilding the entire site takes time.)
It doesn't look like a lot's changed, but I've been quite busy today. I've adapted my existing designs--as much as possible--to the MoveableType stylesheet and template specifications. This should clear up a lot of the workability problems that I've been having.
On the other hand, you'll notice that the top navigation bar is gone. This is intentional: it never quite worked. This does mean that a number of features--Sins of the Week, in particular--are gone. They should come back over the next few days. Likewise, I'll be tucking the archives up into a nice drop-down list, instead of having them sprawled at the bottom of the sidebar as they are now.
As a result of a recent hardware upgrade, my old 19" Dell CRT monitor is now surplus to requirements. I'll probably craigslist it soon, but if there's anyone at CLS who would like to buy a used--but still quite nice--monitor, please send me an email.
I'm including the link so you know I'm not making this up:
The 9-inch George Bush Chibi Plush represents the President's best effort to win votes among Ghost In The Shell fans! Done in Chibi style, this is how President George Bush would look in a Japanese animated cartoon. Depending on your political affiliation, you can have George join the Power Puff girls and fight evil, or make George the newest villain!
UPDATE: I'm shopping for "unique" birthday gifts. In the process of doing so, I've come across this:
Lunch Money is a non-collectible card game. You play Catholic school girls who are beating each other up for their lunch money. All of the designs are in good fun, but may offend some of our more conservative customers. Beware!
Given the obvious implication, I bet Prof. Bainbridge would love it too.
Carey rightfully calls me out: despite what I have in the sidebar at the right, I'm not currently reading Neil Gaiman's new novel Anansi Boys. It would be more accurate to say that I am re-reading Out and waiting impatiently for Anansi Boys to get here. I'd love to say I had a prerelease copy, but sadly I don't know how I'd get hold of one.
I'll admit to some trepidation. On the one hand, Anansi Boys draws its inspiration from the trickster god of African folk lore, and I've always had a fondness for stories of trickster gods. For a few years there's been a trend towards the little rascals of mythology making their way into popular culture. For a while there was a small boomlet in Kokopelli jewelry, for instance, although it seems to have died out. With a new edition of the Principia Discordia out ten years ago, Eris made a bit of a comeback. But if I'm really lucky, Gaiman might do some justice for Anansi and he'll get a little place in the spotlight.
I wish I could find the book that first introduced me to these West African tales. It's one of those books I can still see, a cloth-bound volume that, at least if memory serves, bridged the gap between child and adult fare. I doubt I could still tell you the stories themselves, though I remember they involved weaving webs across the sky and encountering magic sticks. I can remember they were written with a fantastic cadence: they were some of the first books that showed me what language could do. They were also tremendous fun to read out loud.
And the main character! Anansi was at once cunning and yet managed to keep getting himself in trouble. I never knew quite where I was with him. As with most tricksters, he didn't seem entirely malicious, but instead a bit greedy and somewhat mischevious and in love with his own cleverness. I'm sure there are versions of the tales that are darker and less kid-centric. (Certainly Kokopelli's role as seducer doesn't get as much play in children's books as it does in more adult fare.) In any event, I read and reread that book, a volume in an elementary library that I must have checked out a dozen times, and I still have a soft spot for the spider god.
So I worry a bit as to whether I'll like Anansi Boys. I wasn't that convinced by Gaiman's previous modern-mythology novel, American Gods. But hope springs eternal, and if nothing else, it's served to remind me of something I once enjoyed a very great deal. If anyone happens to know a more "adult" telling of Anansi stories, I'd appreciate the recommendation.
For anyone who's missed the news, Michael Newdow is nothing if not persistent: he's gotten Judge Lawrence K. Karlton of the Federal District to rule that the Pledge of Allegiance is unconstitutional. The case may have gotten around the standing problem that led to his challenge being dismissed by the Supreme Court last year. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).  Much of the legal argument has focused upon the district court's application of precedent. I submit without comment analysis by Howard Bashman and Eugene Volokh on whether the Ninth Circuit's ruling which was reversed for lack of standing in Elk Grove should apply to the district court. I'll leave that to more heads more skilled in the delicate art of precedent, and instead ask a slightly broader policy question: when it comes to "under God" and atheists, why should I care?
To be a little more serious (and a great deal less flippant, as I prefer), I'll confess to a bit of puzzlement as to why an atheist sincere in his beliefs would go to the extent of multiple court appeals on behalf of his daughter, all for the sake of the words "under God" in a pledge that all admit the daughter must only hear, not recite. What, precisely, is the harm he's avoidng?
The Ninth Circuit held that Newdow (on behalf of his daughter) had sustained an "injury in fact," but there it was using the legal term of art rather than giving an explanation. Newdow's injury was an interference in the right to direct the religious education of his child. See Newdow v. United States Congress, 292 F.3d 597, 602-603 (9th Cir. 2002). But injury as "violation of a right" is different from injury in the sense I'm considering, the actual negative consequence of the pledge being stated by a state actor in front of an atheist. Here I become less certain of the problem.
When it comes to church and state cases brought by the religious, in most cases the harm is fairly obvious. Take, for instance, Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), in which the father of two Jehovah's Witnesses objected to the flag salute before the words "under God" were even added. (He lost, but the Court came around to his opinion in West Virginia Board of Educ. v. Barnette, 319 U.S. 624 (1943).) In that case, forcing the children to recite the pledge meant a choice between receiving an education and what was in the eyes of the parent (and presumably the children) the commission of idolatry. Whatever one thinks of the outcome of the case, the choice between compulsion and consequence is clear.
Similarly, I'd understand someone of a differing religious faith--say, for instance, a polytheistic one--objecting to being forced to state that this is a nation under a single God, particularly if their faith was one of a jealous set of deities who denied the existence of all others. (No such religion springs to mind, in fact, but it's not my area of expertise.) Giving the believer the most liberal benefit of the doubt--assuming that he is correct in what his deity or deities prescribe--then the fear of post-mortal consequence, be it damnation, particularly unpleasant circumstances for reincarnation, or even a less-than-ideal result in the afterlife seems worth challenging a law all the way to the Supreme Court.
That's not to say that atheism shouldn't be treated as a religious belief. In this I disagree with Jim Lindgren at Volokh, though we reach similar conclusions as to the Establishment Clause. The non-existence of God is no more a matter of empiricism than his existence. (At least, that's my belief as an agnostic.) Nevertheless, an atheist's belief in the nonexistence of God is of a different nature to the differing beliefs of those who believe in some intelligent creator. 
Hence the invocation of similar harm does not avail the atheist plaintiff. The atheist cannot object that he faces any compulsion greater than that of his own ego. Even giving the atheist every benefit of the doubt with respect to his belief, the harm is purely internal: an atheist mouthing the form of a religious ceremony is not blaspheming, there being no entity against which to transgress.
Which again brings me to question why Mr. Newdow keeps unfurling the banner of his Children's Crusade. I doubt his motive is of judicial significance, but given the political nature of the case it's relevant for a blogger to ask. We expect the beliefs of some Christian fundamentalists to be strong enough to withstand the teaching of evolution: does Newdow really suspect that his faith is so feeble that the invocation of two words in a pledge recited by rote can challenge them? Worth dragging that child through the publicity of a court case? Or perhaps Newdow does fear for his faith, given that he's not the custodial parent, but what about Jan and Pat Doe and Jan Roe, Mr. Newdow's new and anonymous fellow plaintiffs? They are custodians of their children, and presumably in near-daily contact. Do they really find their beliefs that threatened? Do they really see this as an issue risking... well, not the souls of their children, but some ineffable benefit in being theist free?
I have a hard time believing that, particularly when I consider the cost of a lawsuit and the ease of telling their children, "It doesn't mean anything. Just mumble." The conflict seems much more a stand for principle--separation of church and state for its own sake--than a desire to be free of painful oppression.
In any event, that's enough for now. There's another aspect of the case that interests me, and that's a comparison to international practices and my own experiences with "it doesn't mean anything, just mumble." But that will have to wait for tomorrow.
: I'll fully admit that the citations in this piece are a mess. It's late at night and I'm without a Bluebook. Anyone who wants to make corrections is welcome to do so in the comments: never let it be said I'd deny my readers the fun of cite-checking. But this is a blog, not a law review, and I write it for fun: I'll fix citations tomorrow.
One interesting question does strike me, however. When I link to a case, I either use the most convenient--meaning usually the first hit in Google--source that looks reasonable, unless I want to support a given site. (For instance, I think Oyez is cool, so it gets quite a few links above.) Does anyone know of a list of "authoritative" sources that law-bloggers use for links?
: I am using "atheist" here in its strongest sense, the denial of any greater being or conscious creative force: for sake of simplicity, the non-religious or non-mystical. Obviously what I say here would apply differently to non-theistic belief systems, but they're mostly irrelevant to the discussion at hand. The District Court doesn't make it clear in its statement of facts, but there's no indication that the atheists in question are non-theists.
It's pretty nifty, but I must admit it seems a bit underwhelming. Google already indexed blogs quite well. I would have much preferred Google's advanced search to just have a tick-box saying "restrict to blogs."
UPDATE: A little research leads to an interesting conclusion this evening. Google's BlogSearch claims to respect the privacy of blogs:
Blog Search will also respect robots.txt files and NOINDEX, NOFOLLOW meta tags . . . .
Back to the drawing board, guys?
Update II: If you have a blog you don't want indexed, particularly if it's already been archived, Google claims you can get it withdrawn by following the instructions here. Of course, since BlogSearch shouldn't have indexed something that had the proper metatags anyway, I don't hold out much hope that the removal feature works.
At least according to the clerkship hiring plan, judges are to start requesting interviews tomorrow. To all of those who are applying, best of luck in the process.
(More than likely, I'll post my Letter to Wormwood about applying for clerkships tomorrow.)
A while back, I wrote a brief piece on my trouble trying to get my new Pocket PC to do Japanese handwriting recognition. I'm happy to say that someone far better at this stuff than I am has cracked the problem. The installation procedure is not for the faint of heart, but the end result is brilliant once you get it working.
After too many users wrote to me with problems recording comments, I've deactivated SCODE. (The SCODE boxes should still appear, but they won't stop a comment no matter what you put in them. I'll be taking them away soon.)
Although I like the SCODE idea, I think it was kind of annoying to some readers when it did work, and lately it hasn't been operating consistently at all. In the meantime, Spamlookup has been functioning well enough that I really don't need it anymore.
My apologies to anyone who has had problems using the comments recently. I hope you'll come back and try again.
UPDATE: It seems that The Fool is having similar problems with MT 3.2 and SCODE. In fairness, I don't think SCODE is wholly to blame: MT changed the way a lot of things worked in this upgrade without providing very usable documentation to help out those who weren't following the process closely.
Not having a car, I generally pay little attention to fluctuations in the price of oil. Nevertheless, if you're interested in making investments to offset the rising price of oil, one might look for a way to invest in the coffee served in the Columbia coffee bar.
Way back when I was a 1L, a small cup of coffee cost a little over a dollar. (About $1.10 with tax, as I recall.) They've kept jacking up the prices over the past two years, to the point where now the same cup--think a "tall" at Starbucks--costs $1.40, or $1.52 with tax. After this most recent price increase, I almost expect to catch a mention of the Lenfest Cafe in Alan Greenspan's next inflation report.
But maybe not. The price of coffee at Hamilton's Deli or the coffee vendor outside remains the same. This is very localized inflation.
I'm sure you've all noticed, but a lot of things got broken during my fiasco upgrading to MT 3.2. I'm gradually fixing all of these, including the error that makes it difficult for Internet Explorer users to leave comments. For my first trick, the blogroll now not only works but also accepts ATOM feeds, which means that it shouldn't break every time Blogger decides to do some stupid format change. (I'll soon be using this technology to rewrite the Continuum.) Also, I've changed the way comments work by getting rid of the comment popups. Those of you using Internet Explorer should now be able to leave comments easily.
Quite soon I should have a new set of templates ready. At the moment, some of the archives are MT default templates that I used when I installed SCODE.
Let's face it, there's a really good reason to be a conservative at law school: it's just more fun. Take the latest breathless communique to hit my inbox from the Columbia Law School Chapter of the American Constitution Society, regarding Cass Sunnstein's presentation of his new book:
"Radicals in Robes" takes judicial philosophy out of the law schools and shows what it means when it intersects partisan politics. It pulls away the veil of rhetoric from a dangerous and radical right-wing movement and issues a strong and passionate warning about what conservatives really intend.
A pity, because getting something like this from a law school group is really laughable.
While browsing around Amazon, I was happy to notice that the U.S. site now has a listing for Fly By Night, the first book to be published by a good friend of mine from my college days. Sadly, no U.S. release date is listed, but the UK site gives the following description:
In a fractured Realm, struggling to maintain an uneasy peace after years of civil war and religious tyranny, a 12-year-old orphan and a homicidal goose become the accidental heroes of a revolution.
It's out in October, so just about the time things are getting stressful I should have a good piece of children's fiction arriving. Worth putting on your list if you've got one, or you can order the UK version here.
Fly by Night
(I'd recommend the book more strongly to Heidi, but I don't know how she feels about making heroes of non-linear birds.)
I only rarely read The Mudville Gazette, but occasionally it gives me a great grin:
Also for the record, before I myself experienced hours of sensitivity training required to be a career military man person, I would have had a two word desription for this. Now I simply refer to it as a "cluster".
Those of you who have been reading some of the usual suspects might have come across the "Flying Spaghetti Monster." A young physics student has taken it upon himself to write to the Kansas School Board demanding his version of equality:
It is for this reason that I’m writing you today, to formally request that this alternative theory [of earthly creation by the Flying Spaghetti Monster] be taught in your schools, along with the other two theories. In fact, I will go so far as to say, if you do not agree to do this, we will be forced to proceed with legal action. I’m sure you see where we are coming from. If the Intelligent Design theory is not based on faith, but instead another scientific theory, as is claimed, then you must also allow our theory to be taught, as it is also based on science, not on faith.
Some find that hard to believe, so it may be helpful to tell you a little more about our beliefs. We have evidence that a Flying Spaghetti Monster created the universe. None of us, of course, were around to see it, but we have written accounts of it. We have several lengthy volumes explaining all details of His power. Also, you may be surprised to hear that there are over 10 million of us, and growing. We tend to be very secretive, as many people claim our beliefs are not substantiated by observable evidence.
That's not to carry water for intelligent design as an idea. I think it's a poor theory, and usually answer arguments in its favor with a brief nod towards Robert Frost and go on. (Frost is making the same point that Henderson could be making, in a classier way: that Intelligent Design might purport to explain an underlying intelligence behind creation, but even if you accept it, it tells you little about that intelligence.) But in general I see the fight as a political battle in the culture wars, one adopted by proponents of a greater amount of religion in public life because alternative legislative avenues have been foreclosed by an aggressive interpretation of the Establishment Clause. Oh, sure, it's a religious conflict, but one largely religious on both sides: it's no coincidence that the most vocal opponents of ID (or at least the most willing to be obnoxious about it) are a particularly loud stripe of atheists. I pretty much hold with Raffi Melkonian on evolution: even if one accepts it scientifically, there's a reasonable case for just leaving it out of the curriculum to avoid the conflict. 
In any event, some good comes from reading and learning about such things. For instance, when I came across the Flying Spaghetti Monster Flash Game at Newgrounds.com, at least I knew what it was about (though I'd forgotten the relevance of pirates). Actually, it's not half-bad for a small flash game. For those of my readers who do think this kind of thing is funny, well, you'll be happy I passed it on.
: I have found very few committed agnostics who are that concerned about evolution or intelligent design being taught in the classroom. Not to say that such agnostics don't exist, but it certainly doesn't appear as a big blip on the radar when I'm chatting with others of my own stripe. Scientifically-minded atheists can easily find themselves taking positions that elevate science to the level of a religion: not that something scientifically provable does exist, but that anything not subject to observable and empirical examination doesn't. (Even that statement is a distortion, but I'll assume Heidi will forgive me, as she explains it better)
Indeed, my own high school experience in the deep South brings me to a few more moderate thoughts. High schools don't teach "science" that well at all, at least as far as scientific method is concerned. Perhaps AP science classes do, but for the most part I learned a set of facts about the physical world that either (a) we didn't question much, or (b) were pretty much instrumentalist. That's fairly practical. I'd like to think that someone building a bridge, and not merely its architect, knows something about vortexes and harmonics. (I'd really like to think that a marching band leader or the like knows to tell his crew to break march when crossing bridges.) But the idea that high schools students are going to be taught to question the universe because evolution is in the curriculum makes me wonder some folks aren't overestimating most science education. Asking most of my high school science teachers about the limits of the scientific method was about as fruitful as asking Jimmy Swaggart about the limits of faith.
On the other hand, my general thought for those in a religious majority is: given how well our schools work, do you want them teaching a complicated subject like religion, or even theology? What little religion that snuck into my high-school education got in through literature, and that was taught horribly. I spent hours convincing my British Literature teacher that Mephistopheles could not be Satan, despite her making that the right answer to a matching question, because Satan is referenced as Lucifer, and later in the play M and L have a chat. Heaven knows what I would have thought had more "information" like that gotten through.
But in the end I'm worried less by the risk that we'll become a "theocracy" if American students of other religions have to learn something of the Christian faith--and maybe share their own--than I am by the world that strict separationists are building and the ignorance it inflicted upon me. The only Song of Solomon I read in high school was Toni Morrison's execrable misery: forcing me to foresake two young roes for a random and inexplicable peacock should be a crime in itself. It's amazing that no one could ever teach me some of the beauty in Christianity until I'd had to learn about the beauty of Buddhism.
: What really amuses me, however, is the argument that it's important to teach evolution because otherwise people will fail to learn skills at rational argument. This entertains me primarily because many of those who argue against ID aren't particularly good at such rationality. I can only imagine that the Economist (premium link) was having a laugh when it published an evolution proponent who challenged intelligent design by arguing that no intelligent creator would build an animal the male of which has facial hair with so little purpose that many such creatures would shave it off daily.
Is that an argument that humans are badly designed? Maybe, although I enjoy the option of being clean shaven or bearded, so maybe not. In any event, something may be the result of intelligent design without being well-designed. This person obviously needed a slightly different version of the paradigmatic ID argument: if you found an Edsel in the desert, you wouldn't assume that it had evolved there naturally or put in place by wild animals, but rather would assume an intelligent creator had built it. You would not be dissuaded from this assumption by the fact that the front grill is butt-ugly, although you might entertain theories about an infinite number of monkeys at an infinite number of CAD/CAM machines for longer than you might in the face of a better car. In any event, you don't have to look very far to find those busy telling us how important it is to teach evolution for the sake of the scientific method turning from formal logic to flippant fallacy and never noticing.
The New York Times is currently reporting on their website that Chief Justice William Rehnquist has died. I'll put up a link when they have a permanent story. My condolences to his family and friends.
(UPDATE: Story here.)
With one retiree and the passing of the Chief, the Court seems headed for interesting times.
I'm upgrading to MT 3.2 right now. Actually, it looks like more of a headache than it's worth--the interface, at least initially, is far more difficult--but wish me luck. If you have a hard time adding a comment here in the next few minutes, or anything else is untoward, either email me or if the comment field is working, leave one.
UPDATE: OK, the pain seems to be over. Tell me if anything doesn't seem to be working. In the meantime, here's some MT 3.1 to MT 3.2 learning:
Hope that helps anyone doing an upgrade.
9/3 UPDATE: Apparently the comment function on here has been broken for a couple of days due to an SCode bug. If you have a second, please try to leave a comment to this entry, and mail me if it doesn't work. Thank you.