Over at the Republic of T, Terrance has been chronicling battles in Wisconsin and Virginia over the interpretation of either Defense of Marriage amendments or alterations thereto. The argument is wearily familiar: that the text of the legislation is overbroad, and that it risks not only banning same-sex marriage and civil unions, but also private contractual arrangements regarding visitation, inheritance, etc. between same-sex couples.

The language in the Wisconsin amendment is typical:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

And yet the legal realist finds myself unable to fathom the argument. Opponents of these Defense of Marriage Amendments (or whatever the latest Virginia iteration is calling itself) claim that there is a significant risk that, should the measures be passed, a radical conservative judiciary is going to expansively read the provisions to enforce them to the utmost bounds of their meaning, knocking out not only privately-contracted civil unions (plausible) or state-sanctioned domestic partner benefits (possible), but also private contracts between homosexuals on the ownership of corporations. Why? If those states have judiciaries that will twist the text beyond the bounds of reason to restrict gay rights (so much so that they'd abrogate many contracts entered into by non-married heterosexuals), why did the voters of these states feel they needed DOMAs in the first place? Who are these justices just about to give progeny to Goodridge that yet would overenforce a ban on civil unions?

I wonder how effective these arguments will be in campaigning against DOMAs. Certainly there is a risk that moderate voters will see opponents bewailing the coming conservative judiciary to be at least partially crying wolf, isn't there?

Posted by Anthony at 12:12 AM | Permalink | Comments (0) | TrackBacks (1)

Another "oops" in Lebanese photography, this time from the AP. Fact-checking seems to have gone out of style these days.

Worse than journalists, credibility seems on shaky ground with lefty law professors. The ever-dependable for the lunatic fringe view Brian Leiter takes Jim Lindgren to task for talking about these scandals:

Jim Lindgren (Law, Northwestern) here protests lack of attention being paid in the US media to the fact that Israel is killing large numbers of civilians in Lebanon, one-third of them children.

Whoops, sorry, I misread that:  his moral outrage is reserved for the fact that US media won't give sufficient attention to the fact that in at least one case a survivor of an Israeli airstrike went out of his way to make sure the media carried pictures of the children killed.  Shocking, just shocking.

First, he's playing the "But the Real Story is" game, something he's wont to do. The rules are simple: when Person A decides to talk about X, Person B (lacking much of any real value to say on X, often because it would require specialist knowledge) insists that the real story is Y, and that any talk at all about X is trivial. [1]

"But the Real Story Is" stands as the last refuge of the scoundrel with nothing to add. As with the underlying story in Rathergate, the evidence offered after the fact (in that case faked letters, in this case faked and staged photos) makes no particularly new observation, nor adds or detracts to the case made for Israel's offensive or Lebanese resistance. Prof. Leiter seems to have felt Israel's offensive unconscionable before the pictures, and Prof. Lindgren felt them justified, and the photos themselves offer no new information to change any minds. After all, we knew that children are dying, although the death counts go up and down depending on who does them and the time of day. The story of media manipulation--and media's willingness to be manipulated--yet has life in it as a controversy. [2]

Second, and most depressingly, why is a man who once told me he "expect[s] better of students who are planning on joining my profession" so disrespectful of the actual tools of law? I know that Prof. Leiter is a Law & Philosophy guy and the many jokes among students as to what "Law &" normally means. [3] Nevertheless, attacking bias in evidence presented by an opposing party is a critical litigation skill and a common tool of the legal trade. It's part of your regularly-balanced legal breakfast. Most if not all rules of evidence (and evidence courses) spend a great deal of time arguing about what "authenticates" a document, and what information can be used to show the bias of a witness.

These legal tools clash with what seems to be an informal norm increasingly common within the journalistic world: evidence that fits with a narrative is acceptable even if one can't confirm the facts. It's no bad thing that lawyers take the same methods of attack used to discredit a witness in court and apply them to journalists. Pace Leiter's suggestion that this is non-important, the staging of photographs violates a duty reporters have to their readers to present facts clearly and honestly. If the "candid" photograph of Green Helmet holding up a baby is no less posed than the image of Posh and Becks sitting upon thrones (in this week's Economist), then news services should not present these to readers as spontaneous events, even if they are symbolically representative of something "true." Leiter suggests that the "real story" is elsewhere, but to legal readers the falsification of evidence should be a story in and of itself.

Finally, the stories of photoshopping and staging retain their power because the malfeasance all seems to go in one direction: against Israel. Certainly there have been children in Haifa brought into hospitals wounded or dying, but no AP photographer has misidentified such a child as a victim of Hezbollah violence. No Israeli stringers have been found photoshopping additional missiles into the skies. There are some more or less flimsy excuses for this imbalance that don't involve intentional bias, mostly revolving around the difficulty of using employees (rather than stringers) in Lebanon. Yet this doesn't explain why, if the AP or Reuters knows that they are forced to use less reliable sources in Lebanon, their editorial controls are not strengthened to reflect this. Reuters may not be able to prevent their source from sending them photoshopped pictures, but there is no force in the world that compels them to print photographs that will embarass them later.

Even supposing the bias is unintentional, it remains a bias in favor of one side of an armed conflict. That bias goes to the credibility of the narrative presented by organizations like AP, Reuters or services that use their photography. It is reasonable, scholarly, and yes lawyerly to recognize that the credibility of a narrative of disproportionality may be called into question when presented by a party who makes frequent preventable errors, hides relevant information and insists in the face of contrary evidence upon its own objectivity. To say that the story is elsewhere, that evidence of bias is trivial, flies in the face of what we're taught--or at least should be taught--as lawyers.

[1]:It helps if, as Leiter does, you mischaracterize X and make up facts. First, Leiter is the only person, left or right, suggesting that "Green Helmet" (about whom much silliness has, admittedly, been written) is a survivor of any Israeli airstrike (not quite true), much less the one the airstrike shot in the video Lindgren presents. The most charitable view is that he's merely a civil defense worker, the least that he's a more or less official propaganda agent for Hezbollah. Secondly the accusation is of course much broader: that far from being an outlier ("in at least one case"), this kind of staging is business as usual for the stringers used by national media.

[2]: Of course, Leiter's accusation suggests that Lindgren is also playing "But the Real Story Is" with the mainstream media by "protesting" a "lack of attention." That's at best a mischaracterization. Lindgren's not really protesting, and I doubt he'd expect a response to his "protest." He's making an evidentiary point.

At the end of a post accusing the media of intentional or unintentional bias, the lack of reporting on the scandal is mentioned to further support the idea of bias. Journalism relentlessly insists that no mark of bias casts a shadow on their souls. The argument is not that "the real story is" the bias rather than the bombings, as the bombings are indeed the story. Rather, the hypothesis being advanced is that the storyteller cannot be trusted.

[3]: The kindest of jokes I have heard would be that "Law &" folks don't care much for anything that comes before the ampersand. One of the least kind was a classmate who joked that in his last year he took no "real law," and instead focused on "Law &" and "The Law of" courses.

Posted by Anthony at 10:06 AM | Permalink | Comments (0) | TrackBacks (0)

I guess the guys at DailyKos are a bit giddy after their victory over Kiss Me Joe, because they're hawking the story of a photoshopping scandal. According to the Kossacks, the GOP decided to paint a Hitler moustache on Howard Dean in an advertisement ridiculing the "Defeat-ocracts." When I first saw mention of it, I thought, "Well, maybe. I mean, Fascist Dean seems like a tough meme to propogate, and photoshopping to do it virtually guarantees a backlash, but hey, I've never claimed that Republicans used the web effectively. So who knows?"

Click through to the first link above and prepare to be underwhelmed. The "moustache" doesn't seem to be the result of intentional malice, but rather of having used this photograph, pulled off another blog. Don't get me wrong: the picture looks awful (so do the other four victims), but you have to really squint to look at Dean and think "mysterious Naziesque facial hair" rather than "wow... fire the photo editor." (Take another look at that picture. The injudicious use of the lasso tool leaves Dean's finger looking frighteningly skeletal, and if I were to make any complaint, it would be the fact that Rep. Murtha resembles a large, fleshy growth developing out of Michael Moore's left shoulder blade.) There's certainly nothing to suggest that someone sat down and painted a moustache onto Dean.

In other words, the story is the same as always when it comes to Republican web work. Don't assume malice where simple incompetence will suffice.

Nevertheless, the GOP has issued a new image (which seems to use a better picture of Dean as the source). Fair enough, although no one has corrected the whole Murtha-Moore-tumor problem. In the meantime, if this is supposed to be the left-wing version of Reuters photoshopping, there's just no comparison.

Posted by Anthony at 03:20 PM | Permalink | Comments (1) | TrackBacks (0)

After forcing Reuters to pull a third rate forgery from its video archives, bloggers are having a field day finding more suspicious photos from the Israeli/Hezbollah conflict. My guess is that many will turn out to be perfectly valid images, but a few will turn up as very embarassing errors that will take a large toll on media credibility. While I'm not qualified to judge most of the scandals, this one certainly seems suspicious. In two photos dated two weeks apart, what seems to be the same woman is bewailing the destruction of her apartment. I suppose there are explanations: she owns two apartments, the second picture is her evil twin, etc. But the idea that the major news agencies aren't paying enough attention to the activities of their men on the street is becoming hard to shake.

Posted by Anthony at 07:53 AM | Permalink | Comments (1) | TrackBacks (0)

For a while now, there's been a bit of a storm in the more feverish bits of the right wing blogosphere over possible fakery in photographs of the Israeli attack on Qana. For the most part, I've not bought the allegation that these images were "staged." The evidence is mostly circumstantial, and while I'll freely admit that staging such a thing isn't beyond what I'd believe of Hezbollah, I also think those making such an allegation have a higher burden of proof. After all, allowing such staging would require at least the gross negligence, if not the connivance, of quite a few major media outlets.

The trouble is today Reuters admitted to publishing a doctored photo of another bombing. And much like the Rathergate memos, the photo is not even a third-rate forgery. Anyone who's ever used the "clone" tool in Photoshop can see that the image has been badly faked. (Further, as someone who once watched an entire Scientology banner be photoshopped out of a publicity photo for a company we represented, I can tell you that a reasonably competent college graduate with little training could do a better job.) There is literally no excuse for letting a picture like this go out. It's laughable.

Therein lies my difficulty. I still don't think the Qana photographs are faked, and that most of the tempest over them in the right wing blogs is misplaced. But if the photographer who filed the Reuters photo is also willing to hack out a lousy Photoshop, who says he's not willing to look aside while some (relatively more competent) Hezbollah fakers set up on stage left? If the reason we should trust those photographs is the integrity of Reuter's editorial process, where was it when these latest photographs showed up? I'm willing to put the burden of proof on the bloggers, but for pity's sake, it would help if the media majors would make some attempt at retaining their credibility.

Posted by Anthony at 09:42 PM | Permalink | Comments (0) | TrackBacks (0)

Prof. Yin highlights one of those wonderful articles by concerned liberals (in this case Anna Quindlen) that causes a moment of pause. I have to remind myself that there are quite sensible people who object to the death penalty, and they don't all offer drivel as arguments. It's worth listening to them.

I find this tough to remember because death penalty abolitionists have some pretty staunch spinmeisters in their corner. Justice Scalia's concurrence in Marsh today challenged some of the key figures one hears, but for my money Amnesty International takes the Arachne Award for the Service of Spun Statistics to Public Policy. For instance, it's hard to find a death penalty press release that doesn't contain some variation of the statement, "In 2005, 94 per cent of all known executions took place in China, Iran, Saudi Arabia and the USA."

That sounds pretty damning, doesn't it? But what if I told you that (based on the same statistics), the U.S. came in fourth place and counted for only 2.8% of all executions in 2005? That's a bit less impressive. On a per capita basis, Singapore's hangmen are busier by almost a factor of ten? (OK, the figures are old, but it's still a high multiple.) The big deal, of course, is China, which accounts for over 80% of all executions worldwide.

Amensty choses the "top four" cut off, of course, not because the U.S. is exceptional among countries retaining the death penalty (that would be China), but because the United States is fourth. Amnesty often precedes the line I quoted above with, "As in previous years, the vast majority of executions worldwide were carried out in a tiny handful of countries." True so far as it goes. But the vast majority of executions are carried out by a single country, and the rest are just frosting on that particular cake.

This spin also allows people like Quinlen to blithely write:

Hardly any other civilized place does this anymore. In the past three decades, the number of nations that have abolished the death penalty has risen from 16 to 86. Last year four countries accounted for nearly all executions worldwide: China, Iran, Saudi Arabia and the United States.

Despite being flat-out deceptive, Amnesty is happy to push these little statistics, and commentators like Quindlen trot them out like respectable toy poodles. The trouble is that once one learns how the numbers have been massaged, it's hard not to judge the rest of the abolitionist claims with some skepticism. Hundreds of exonerations? Well, were these innocent people or are we trying for large headline numbers by including procedural faults?

I'm sure Amnesty's heart is in the right place, which is normally the excuse one hears for them. But it's hard to think that when the "best of intentions" are promoted by rather shady means.

Posted by Anthony at 10:48 PM | Permalink | Comments (3) | TrackBacks (0)

Some will probably interpret this column as a defense of Ann Coulter, so let me be clear: she's pretty far beyond the bounds of reasonable defense. My only hope is that a third party does arise in the next election.Perot's party drew Pat Buchannan away from the Republicans, and I can hope lightning strikes twice, right?

But the fever-swamp left of the blogosphere is all a-titter today over this little quiz, which purports to challenge visitors to distinguish between the words of Ann Coulter and Adolph Hitler. It gets a favorable link from Brian Leiter, who has taken a brief vacation from his blog-sabbatical to highlight it.

It's a bit odd to see a law professor trumpeting this piece so loudly, though. At least in theory, we legal folks are supposed to care about correct citation, honest usage of quotations, etc. A brief look at this "gem" of a quiz reveals that it's not entirely forthright. I think it gets the Coulter quotations right, but the Hitler quotations suggest that the most evil man of our time was obsessed with liberals and America. For instance:

We must study this vile liberal technique of emptying garbage pails full of the vilest slanders and defamations from hundreds and hundreds of sources at once. . . .

As long as millions of the bourgeoisie still piously worship their liberal democratic press every morning, it very ill becomes these gentlemen to make jokes about the stupidity of the 'comrade' who, in the last analysis, only swallows down the same garbage, though in a different form. In both cases the manufacturer is one and the same liberal.

Here the liberal's procedure is as follows: He approaches the worker, simulates pity with his fate, or even indignation at his lot of misery and poverty, thus gaining his confidence...With infinite shrewdness he fans the need for social justice, somehow slumbering in every American man, into hatred against those who have been better favored by fortune. . . .

Hence it is that at the present time the liberal is the great agitator for the complete destruction of America. Whenever we read of attacks against America taking place in any part of the world the liberal is always the instigator.

My readers being a pretty clever lot, they've by now figured out the ruse. Hitler actually said very few of the things attributed to him in this quiz. If you substitute for "Jew" or "Jewish" for "liberal," and "Aryan" for "American" and "Germany" for "America," these are all passages from Mein Kampf. But I'm sure my readers are a cleverer lot than even that, and are now asking, "OK, Tony, but what's you're point? What's all the lead up about?"

I bother pointing this out for two reasons. First of all, looking through Technorati I didn't find that anyone had pointed out the obvious: the "quotes" from Hitler weren't any such thing. Secondly, the alterations are important, because once they've been pointed out, the whole little bubble becomes little more than another good argument for Godwin's Law. What made Hitler evil wasn't his habit of rhetorical excess, but the means to which he put it. Comparisons to Hitler hold their force precisely because they imply that the subject of comparison is similarly odious for similar reasons. And yet "liberal" is a policy position, not a race or religion, and hence the comparison is not particularly appropriate. For instance, consider the last "Hitler" quotation I gave above. The quiz places it, presumably for emphasis, right next to this Coulter remark:

It was a crushing defeat for the liberals, not because liberals were necessarily Communists, though many were, but because they had been morally blind to Communism...Liberal elites defended traitors. In response to the Soviet threat, the Democrats consistently counseled defeat, supplication, and retreat.

On the other hand, hyperventilating columnists can be found by the dozen. It wouldn't be difficult, following the same rules of engagement, to doctor a few passages of Mein Kampf and come up with a "Hitler or Huffington Post" quiz. But to do it would be silly, wouldn't say much, and the proper role of a professor in response would be to say so. Were he a law professor, he might also point out that honest argument demands integrity, especially in the use of quotations.

Update: After some conversation, Prof. Leiter has now updated his post to recognize that the "quotations" are nothing of the sort.

Posted by Anthony at 01:03 PM | Permalink | Comments (6) | TrackBacks (0)

Prof. Bainbridge displays an uncommon lack of class today when moaning about a practice with which I am similarly annoyed. Writing about folks who park SuperSized SUVs in spaces reserved for diet-sized cars, he gripes:

I was standing there thinking, "only somebody from Texas would be dumb enough to think a GMC Yukon qualifies for a compact parking space," . . . ... but then one of my fellow Californians pulled a (nearly) full size truck into the compact space right beside the Yukon.

Certainly the practice is obnoxious, although I must also admit that given the number of SUVs in my lot, it's a bit strange the parking garage hasn't redrawn the lines to accommodate more small trucks. But there's no reason--nor has there ever been any--to suspect that only Texans are blase enough about the convenience of their fellow citizens to engage in such behavior.

(Come to think of it, I never saw an SUV parked in a compact space when I lived in Texas, but I can't recall ever seeing anything but a full-sized parking space.)

Posted by Anthony at 08:04 PM | Permalink | Comments (3) | TrackBacks (0)

I know two or three formerly meat-eating vegetarians who really miss the taste of bacon. Apparently this is not uncommon. If you too have such a friend, you should introduce them to Aecht Schlenkerla Rauchbier. Although completely meat-free, it tastes like bacon in a big frosty mug.

I promise, this is much better than it sounds.

(If you're in New York City, you can try a bottle at the West Side Brewery.)

Posted by Anthony at 11:54 PM | Permalink | Comments (1) | TrackBacks (0)

Law professors first and foremost teach their student to "think like lawyers," which in legal-land is this special way of cogitating foreign to everyone else. I either missed the import during law school--possible, I suppose, given my Fed Courts grade--or "thinking like a lawyer" is the same thing as logic, except you get to put "esq." after your name.

Thinking like a lawyer may be great when you're in front of a judge, but as University of Houston Professor David Dow shows in his New York Times editorial today, it may be distracting when one is considering politics. Prof. Dow suggests that death penalty opponents should put aside this pesky "innocence" topic and instead focus on the many flaws in our death penalty appeals process:

Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.

Of course, Professor Dow is selective in which process he obsesses over. Racial strikes on juries or incompetent counsel, of course, is critical, but res judicata or federalism concerns are . . . well, not really one of our deeply-held procedural values:

When the Supreme Court brushed aside Mr. Coleman's appeal 15 years ago, the justices said that a death row inmate cannot complain when his lawyer misses a filing deadline, because the lawyer is the agent of the client, and clients are responsible for the failings of their agents.

As a result of this syllogism, my client Johnny Joe Martinez was executed in 2002, because his court-appointed appellate lawyer neglected to file a proper appeal — a mistake he freely admitted to, attributing it to inexperience. When the Martinez case reached the federal courts, those courts, invoking the Coleman decision, said too bad for Mr. Martinez; the mistake of his lawyer was attributable to him.

And there's some logic to this. Presume that the system is mostly working. Is it just for one murderer to die because his lawyer filed all the appeals properly, and yet another to live longer because his lawyer was incompetent? The best way to challenge that argument is to attack the presumption that the system is functioning within a reasonable margin of error, and even better, that it cannot. But that is precisely what Prof. Dow suggests not be done:

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

Further, focusing on process opens death penalty opponents up to charges of bad faith. Most death penalty opponents, while perfectly happy to point out the flaws in the system, are at heart not that interested in improving it. And Prof. Dow concedes that as a substantive matter, the system is pretty much working: most people executed did commit the crime for which they were convicted. Hence, the question can be asked: if we fixed these procedural problems, are people like Prof. Dow going to stop arguing for the removal of the penalty? If not, isn't the process just an excuse?

Focusing on innocence isn't a "distraction" for death penalty opponents, it's their strongest, best argument so long as they are faced with a polity that doesn't find state-sanctioned execution to be wrong in and of itself. The death of an innocent man, after all, is a tragedy. But the tragic tale of a misfiled appeal leading to a slightly earlier execution of a doubtlessly guilty man holds little traction beyond those who have been trained to think that "substantive due process" isn't a contradiction in terms.

(Hat tip Ann Althouse.)

Posted by Anthony at 11:14 AM | Permalink | Comments (1) | TrackBacks (0)

I wake up on yet another Friday and find that Karl Rove isn't indicted yet. As I've said before, I admire Rove, since he's got the best job perk imaginable. He can wake up in the morning, pour a glass of scotch, kick back and flip on I Love Lucy reruns, safe in the knowledge that anything bad that happens to the left will be blamed on him by the end of the day. He's Satan's own scapegoat.

(The latest lefty jibe for Rove is to call him porcine, but let's face it: the Democrats haven't been doing much to force him up off the couch and get the blood pumping recently. [1])

I'm hoping that Rove's getting a particular kick from the misery of his abusers. After Truthout.org "leaked" (note: good leak) a story of his upcoming indictment, they've watched their credibility ooze out the door. First the indictment was coming in three days, then three "business" days, then soon, then . . . Rove's lawyer Robert Luskin announces that Fitzgerald has no plans for indictment. The kicker? According to many of the "Plameologists" (and Truthout's latest defense), this may be their Dan Rather moment! Luskin may be lying about a letter from Fitzgerald!

Really, I'm not making this up.

Even those who don't believe it (including, for instance, Jane Hamsher) seem unwilling to call a spade a spade:

For those who are tempted to believe Luskin is lying about the letter he received from Fitzgerald — don’t. I know that irresponsible types will try to exploit people’s natural mistrust of Gold Bars and his willing to limbo around the truth, but lying about this goes well past what I think his limits are. I believed him when he said Rove had not been indicted, and I believe him now . . . .

This, however, stand's as Truthout's last defense for not "burning" its confidential sources (as they promised) if it turns out they weren't . . . well, "outing" the "truth." The jury's still out on the stupidity of Marc Ash, it seems.

[1]: Yes, things are bad for the Republicans, and we very well may get trounced in the next election. But almost every Republican wound is self-inflicted. It's like Mike Tyson getting into the ring with me and then, in an act of desperation, biting his own ear off.

Posted by Anthony at 09:16 AM | Permalink | Comments (0) | TrackBacks (0)

Yesterday's DailyKos open thread ended with the curious tagline:

In the American theocracy, video games which allow you to kill those who don't convert to Christianity are apparently okay.

Meanwhile, the secular authors speaking about the game have become deranged:

Comparisons to Grand Theft Auto and other such video game titles are irrelevant to this discussion. It is not the level of violence that is at issue, but the Christian supremacy. This game immerses children in an environment that copies present-day New York, and indoctrinates and rehearses children in the mass killing of New Yorkers. This is religious indoctrination that forms children's identities and teaches that they must be prepared to do a deadly deed to defend their creed. That message is unAmerican and unChristian; patriots and Christians alike should oppose this game.

Further, Left Behind: Eternal Forces has one thing going for it in the "don't do this at home, kids," stakes that GTA does not. I've not read the Left Behind books, but my impression is that they're apocalyptic in very a literal sense. The rapture has occurred, a bundle of the righteous have used their "Get Out of Perdition Free" cards, and the world is now caught in a last-days type battle. The anti-Christ shows a significant lack of political savvy and starts taking over the United Nations. (Management, unsurprisingly, seems to improve.) God, in the meantime, plays a more active hand in events, causing squadrons of planes to fall from the sky rather than attack Jerusalem, etc. In other words, in this setting the existence of the Almighty is not much more in question than the existence of sunlight.

This reminds one of the old C.S. Lewis comment about why we object to the persecution of witches: burning them is improper because we do not believe that they exist, not because those who actually aligned themselves with the devil to torment their neighbors would not be evil and deserving of burning. Similarly, if the question of the existence of a divine creator were settled, there's a reasonable argument that qualms about religious toleration can be set aside more lightly.

In this sense, the Left Behind game shares an ethos with just about every fantasy game that has a supernatural element. (In Dungeons & Dragons terms, any game that has clerics.) In the new Elder Scrolls: Oblivion, the demon Mehrunes Dagon may have a colorable argument for the ownership of the "real" world. Were the various characters making claims about a supernatural eminence who never appears, then religious toleration would have its place: seeming 'heretics' would be members of an alternate religion who ought to just found a political party. When gates to hell start popping up all over the place, however, the game sets aside a need for interfaith dialogue.

By contrast, GTA III actually takes place in a "realistic" world, and indeed a modern setting. Mr. Hutson's concern thus leaves out a required predicate: any "indoctrination" seems predicated upon the happening of rather fantastical events. If all Left Behind communicates is that in the face of concrete and tangible evidence of the existence of God normal rules of religious toleration should be reconsidered, we can rest pretty easy. After all, if you're an atheist (or even not an evangelical), you aren't really putting the Rapture in your project plans.

The various left-wing blogs writing on this also seem a bit perturbed by the "kill or convert" aspect of the game. According to reports--I can't find a demo of the game, and I don't have time to play it--protagonists have the choice of either killing their enemies or converting them. I'm not sure why this is so upsetting, however. It's a pretty standard real-time strategy (RTS) game mechanic. (In the game Sacrifice, one converts one's enemies through a form of rather energetic altar torture, as I recall.) The game is set in a world where one is either for God or quite busy following an AntiChrist. Assuming we take that as a factual premise (within the game), kill-or-convert becomes nothing more than a gameplay decision.

None of the above should be read as an endorsement of the Left Behind books or the eventual game. I've not read the books, but they certainly don't sound like my cup of tea. The game--at least judging from the website--doesn't look like it's breaking any new ground in RTS, and I'm not sure the world needs another inferior skin of StarCraft. But one should at least be consistent in dealing with video games. I credit the players of Grand Theft Auto with enough sense to know that hijacking cars is a no-no. I'm pretty certain that anyone paying for Left Behind: Eternal Forces is going to know that the Rapture doesn't come at the double-click of a mouse.

Posted by Anthony at 09:42 AM | Permalink | Comments (5) | TrackBacks (0)

And in other good but thoroughly predictable news, Karl Rove isn't going to be indicted. Shockingly, otherwise smart people are having to learn you can't trust everything you read on the internet.

And as of right now, Truthout.org's website hasn't posted any news of Jason Leopold burning his sources, as he promised to do.

Posted by Anthony at 09:11 AM | Permalink | Comments (0) | TrackBacks (0)

I suppose that in keeping with my frequent assertion that it's important to denounce lunatics on one's own side of the aisle, I should register disgust at whatever it is Ann Coulter has said recently about 9/11 widows. The trouble is, I have no idea what she said and I'm too busy to really want to spend time falling into the sewer to educate myself. Can we just take it as read that I think she's a few bricks short of a full load and leave it at that?

On the other hand, there's some fun and games over at Instapundit. At the same time that his blog is suggesting that Coulter should be ignored, his Pajamas Media ad is suggesting that his readers can get free copies of her book.

Gotta love automated ad feeds. . . .

Posted by Anthony at 09:02 PM | Permalink | Comments (2) | TrackBacks (0)

The Volokh Conspiracy, ThinkProgress and Planned Parenthood have all recently commented on a "new" Bush Administration policy: supposedly, homosexuals should be abstinent for life. A quick look through the statute book, however, leads one to believe that not only is the policy not actually as harsh as suggested, but it's not particularly novel.

The fuss is over a new set of guidelines for Community Based Abstinence Education (CBAE) Programs published by the Administration for Children and Families. (Oh for those glorious small-government days of Republican lore, when our children and families didn't really need to be administered.) The ACF has stepped up to the plate with a new definition of abstinence:

Abstinence curricula must have a clear definition of sexual abstinence which must be consistent with the following: "Abstinence means voluntarily choosing not to engage in sexual activity until marriage. Sexual activity refers to any type of genital contact or sexual stimulation between two persons including, but not limited to, sexual intercourse."

Throughout the entire curriculum, the term "marriage" must be defined as "only a legal union between one man and one woman as a husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (Consistent with Federal law)

All this seems rather histrionic. Reading through the CBAE materials, they seem a bit silly, but none of them are couched in terms of "teens having no choice but to" or "you should be taught to never, ever." They promote the idea that certain decisions are healthier. I don't really agree as to the health risks and one could argue all day about the evidence given, but the descriptions of the programs are a bit breathless. After all, tobacco and alcohol education programs don't advise that I have "no choice" but to smoke or drink. They recognize that I do have such a choice and explain that my lungs and liver would probably object. Nothing on the ACF's page suggests that these programs are different in type. [1]

More to the point, I'm wondering just what statutory wiggle room these organizations--including the Guttmacher Institute--thought that the ACF actually had. Explicitly defining "abstinence" as meaning "no sex until marriage" may be quite novel as a matter of government policy, but is the definition so much more horrible because it's now explicit instead of implied? The statutory standards required of the CBAE have not changed since 1996, and are found in 42 U.S.C. §710(b)(2):

For purposes of this section, the term "abstinence education" means an educational or motivational program which--
(A) has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity;
(B) teaches abstinence from sexual activity outside marriage as the expected standard for all school age children;
(C) teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems;
(D) teaches that a mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity ;
(E) teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects;
(F) teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child's parents, and society;
(G) teaches young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sexual advances; and
(H) teaches the importance of attaining self-sufficiency before engaging in sexual activity.

Which then leads us back to my confusion as to these accusations of a "new" policy. Certainly one can see the difficulty that ThinkProgress is gnashing it's teeth over, but those teeth should be well worn to nubs by now. After all, the definition of "abstinence education" was signed into law by the same president who signed the Federal Defense of Marriage Act: Bill Clinton. At the very worst, the ACF has made the intent of an objectionable law more clear, but they hardly seem to be breaking new policy ground.

[1]: Sadly, it's rather typical of current discourse to conflate "X is bad for you" with "you have no choice but to abstain from X." One can mark this down to health fetishism, a desire to live forever, some form of neo-puritanism, but whatever the motivation it's still a faulty form of reasoning.

Posted by Anthony at 04:29 AM | Permalink | Comments (0) | TrackBacks (1)

Finally sick to death of Dell's horrible customer service, I decided I'd splurge a bit this Christmas and buy myself a new notebook. Anything but a Dell, I thought, and so I bought a lightweight but relatively powerful Alienware Sentia. No more Dell!

Some days the universe just hates you.

Posted by Anthony at 08:48 PM | Permalink | Comments (1) | TrackBacks (1)

Before heading off to sunny Texas for spring break I've cleaned like a demon. Unless the room floods while I'm gone (not entirely impossible), I should return home to a room that sparkles like a hotel. Part of this has involved throwing out or donating some of my old clothes, something at which I've never been very good. Today I've been strict: anything I've not worn consistently in the last six months is going. I really need to limit my closet consumption.

I'm especially loathe to throw out t-shirts that have silly slogans on them. (Yes, I've got the fashion sense of a color-blind zombie.) Sadly, I can't seem to find anyone who makes the following anymore:

• STOP PLATE TECTONICS
  
• "I've got the body of a god. Unfortunately, that god is Buddha."
  
• Pave the Planet! One World, One People, One Slab of Asphalt!

Come to think of it, it's probably best for me that these things have gone thoroughly out of fashion....

Posted by Anthony at 02:38 AM | Permalink | Comments (10) | TrackBacks (0)

Enough pixels have already fluttered regarding the constitutional repercussions of Rumsfeld v. FAIR, and I really have nothing to add to the kind of commentary that engages Con Law professors. My thoughts are slightly broader and less focused.

1) Broadly speaking I think the opinion comes out correctly. Law schools can't be forced to hire pro-Solomon professors, one supposes, but they must allow military recruiters on campus. The schools will continue to grant them access whilst posting signs in GREAT BIG CAPITAL LETTERS telling us what horrible people the military are, maybe in the future making applicants run a gaunlet of screaming protestors, but they can't close the door altogether. There's a justice in this: as I've said before, if you're going to take the king's shilling, you can't be upset when you get dragooned.

That's not to say that "don't ask, don't tell" is good policy: it isn't. (On the other hand, it's not disastrous policy: keeping homosexuals out of the military will result in, at the very worst, a slightly less-than-optimal allocation of resources to the armed forces.) We should change that policy, but to do so we'll need to change hearts and minds both within the military and without. To do that, at least insofar as JAG recruiting is relevant, the ivory tower of law would have to reconnect with the serfs living outside the keep, at least now that the legal equivalent of the Sacred Council of Cardinals has declined to intervene in more temporal affairs. Maybe this will provide the incentive.

2) Thankfully, Chief Justice Roberts and the rest of the Court soundly rejected the amicus brief of Columbia's law faculty. As a quick recap, the professors argued that when Congress passed Solomon, they meant to ban discrimination against military recruiters, and that an even-handed anti-discrimination policy on sexual orientation applied to both law firms and the military does not do that.

First, this argument borders upon an arid textualism. The military isn't disadvantaged if the rule is stated "we don't allow any employers to interview if they discriminate." Yet they are disadvantaged if we state a more robust rule: "we don't allow any employers to interview if they discriminate other than as required by law." Is it the honest opinion of the law faculty that in any other situation, they'd apply their anti-discrimination policy against employers who were complying with a statutory mandate? (If a law were passed stating that no declared homosexual would be allowed to pass the bar--presuming its constitutionality--would the law schools really shut out everyone?) Can an organization that accredits students who are presumably expected to comply with the law really say that their antidiscrimination policies should trump a valid act of Congress?

While I respect most of its signatories, the logic within the brief borders upon farce. How could many of the same professors who have spoken so favorably of legislative history in my classes be so parsimonious with it in front of the Court? From the legal realist perspective--and one of the signatories is one of my favorite of Columbia's realists--what possibly can the law schools have hoped to gain if the Court ruled in their favor? Unless the professors truly believed that Congress really intended such a stingy reading of Solomon--go ahead, take a moment to laugh--didn't they expect that a ruling in their favor would result in yet another revision to the statute, this time erasing the scintilla of doubt that might somehow be scraped from its text? At best, such a result punts the issue six months to a year down the road. Woohoo! We can bar the doors to the military for one year at the risk of draconian wrath from a Congress that--it's hard to realize this from New York--still sits in Red State hands.

3) It's worth placing this debate in its larger context. Rumsfeld v. FAIR follows Romer and Lawrence as part of a larger debate this country is having: is it acceptable for our society, or even subsections of it, to disapprove of certain sexual behavior? And here I find myself having--uncomfortably--to side with the social conservatives.

There is a difference between saying that one should stigmatize certain sexual behavior and that the country can do so through legislation. To say that anti-sodomy laws should be overturned merely requires the expression of a political opinion, and one I share. To agree with Lawrence is to fantasize that this country at some point collectively decided that anti-sodomy laws were so vile that our descendants should require a supermajority if such policies were to be instituted. To believe that discrimination against homosexuals in employment should be prohibited, one must merely think that Congress or the states have the power to do so if they wish. To believe in Romer, one must think that at some point a majority of us agreed that any other law was beyond the pale.

Me, I'm sure I do a lot of things of which other people wouldn't approve, simply because they're legal, fun and I don't feel they harm anyone else. (Some of my best friends are Mormon, and almost certainly disapprove of my Chestertonian fondness for wine.) But those others should still be able--electorally, if need be--to disapprove of my choice. To do otherwise not only trivialize their opinion: it trivializes my choice to disagree with them.

Such dismissive attitudes come with political cost. After Lawrence and Goodridge, after all, came a multitude of state constitutional provisions making obvious clarification. To paraphrase the intent of each such resolution: "Whatever we've said before about equality, it didn't change the common sense idea that when we say 'wife' we mean a woman, when we say 'husband' we mean a man, and when we say 'marriage' it means between a husband and a wife. If we were ever convinced otherwise, we would have mentioned it sooner. Judges, take note."

It's great that my law school doesn't think homosexuality--or even much in the way of consensual sex--should be verboten. But law schools accredit lawyers, and however much I disagree with folks who think sex should be limited by tradition, religion or what have you, they should have the right to have their lawyers too.

4) Finally, my favorite part of Chief Justice Robert's opinion occurs on page fifteen of the slip opinion:

The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with
the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the military's policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). In that case, we upheld a state law requiring a shopping center owner to allow certain expressive activities by others on its property. We explained that there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was "not ... being compelled to affirm [a] belief in any governmentally prescribed position or view." Id., at 88.

The same is true here. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution concern "not a plausible fear"). Surely students have not lost that ability by the time they get to law school.

(Update: a few text errors, including the embarrassing mistake of confusing Romer with Roper, corrected.)

Posted by Anthony at 01:05 AM | Permalink | Comments (1) | TrackBacks (1)

Look what happens if you Google for Paris Hilton Sex Tape:

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.

Remember, the longer you take, the more your unlawful conduct damages us and the more you incentivize the infringer / fraudster for the next time!
Why does it take many hours for Google to remove an infringing site? By contrast---for example — it only takes EBay/PayPal a matter of minutes (even on a Sunday) to terminate PayPal accounts — associated with infringing sites — in response to my similar reasonable demands.

Posted by Anthony at 11:02 PM | Permalink | Comments (4) | TrackBacks (0)

From the doyenne of the Huffington Post:

We've only scratched the surface, but the more we learn about the Armstrong Ranch, site of the Cheney shooting, the more it feels like the GOP equivalent of Tony Soprano's joint, the Bada Bing. Of course, at the Bada Bing the girls are strippers; at Armstrong they're the ambassador to Switzerland and Liechtenstein. But both hot spots feature quite a bit of gunplay.[1]

Tune in next week for more exciting HuffPo metaphors, such as why the Democrat's Renaissance Weekend is an awful lot like the Amsterdam Red Light District. . . .

(Yes, yes, I get the point Ms. Huffington is trying to make: lots of Republican bigwigs go to the Armstrong Ranch and network. But even to a casual Sopranos viewer, it's a stupid metaphor. The Bada Bing is Tony's place, which would make Katherine Armstrong the kingpin of the Republican Party. On top of that, more corrupt deals are made at Artie Bucco's restaurant than the Bada Bing. But focusing on the Nuovo Vesuvio wouldn't allow the HuffPo to make a completely gratuitous slam on a female ambassador. Isn't that odd for a progressive site?

Incidentally, shouldn't it be she's the Ambassador to Switzerland and Liechtenstein? There's only one ambassador to the two countries, and unless Arianna knows something the rest of us don't want to know about, the last one wasn't likely to get hired by Bada Bing.)

[1]: Astute readers will note that the quotation above doesn't match the text found at HuffPo. I've quoted the excerpt given on the HP homepage at the time of writing, but linked to the "under the fold" text. The only other option was posting a screenshot.

Posted by Anthony at 12:05 PM | Permalink | Comments (0) | TrackBacks (0)

Professor Volokh today posts an excerpt from The Covenant of the Islamic Resistance Movement (HAMAS)-Palestine. He makes a serious point, wondering how one can negotiate with a group so disconnected from reality. Me, I just wonder how certain groups become bees in the Hamas bonnet. Take, for instance, these bizarre accusations:

That is why you find [the Zionists] giving [attempts at liberalizing women] constant attention through information campaigns, films, and the school curriculum, using for that purpose their lackeys who are infiltrated through Zionist organizations under various names and shapes, such as Freemasons, Rotary Clubs, espionage groups and others, which are all nothing more than cells of subversion and saboteurs.

With their money [the Zionists] formed secret societies, such as Freemasons, Rotary Clubs, the Lions and others in different parts of the world for the purpose of sabotaging societies and achieving Zionist interests.

Hamas has always been a bit of a Janus organization. Suicide bombings against enemies are good, as are non-corrupt social services for allies. One can rationalize those positions if one tries hard. But either its constitution is an attempt at comedy--and this I doubt--or the organization is also what a friend of mine would characterize as "plain batshit crazy."

Thankfully, however much Lions or the Rotary Club members are tools of Jewish Hegemony, Inc., they're pretty mild-mannered about it. I mean, imagine what might have happened if Hamas had published some cartoons of prominent greedy Rotarians with sheckels in their eyes! We might have had mosques burnt down, the Iranian embassy stormed and hostages held, and all sorts of other things that I'd feel compelled to denounce. Fortunately, these folks have been pretty quiescent since 1988.

Posted by Anthony at 03:47 PM | Permalink | Comments (3) | TrackBacks (0)

First, let me say that whatever one's partisan opinions, this is pretty funny. Attorney General Gonzales at the Senate hearings on Monday:

"I gave in my opening statement, Senator, examples where President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized electronic surveillance of the enemy on a far broader scale -- far broader -- without any kind of probable cause standard, all communications in and out of the country."

So yes, he may be a member of my party, but anyone--even the Attorney General--should be able to have a laugh at that. It's fairly harmless.

On the other hand, we should also be able to laugh at its opposite. A number of leftish websites, for instance Pat Morrison of the Huffington Post, take issue with the AG for citing not only Washington, but also a supposedly anachronistic President Lincoln. But Lincoln actually belongs to the age of early electronic surveillance, and the civil war wasn't exactly scarce on wiretaps. They seem to have forgotten the telegraph, which is a shame considering the role it played in the Civil War.

UPDATE: Actually, looking at his speech, he might have used the words international. Anyway, what all those presidents have in common is wanting to spy on communications going into and out of the United States.

Posted by Anthony at 06:23 PM | Permalink | Comments (3) | TrackBacks (0)

Hopefully I'll be off this topic tomorrow, but I do like to update posts when someone proves me wrong, or at least not-so-right. After giving the Committee on American-Islamic Relations (CAIR) grief for not forcefully condemning violent responses to the Cartoon controversy, I should note that today's press release mentions in passing that they "condemn all violent actions by those who are protesting the cartoons." I can't find a transcript of the press conference itself, so I don't know what or who they actually condemned, but heck, it's a start.

(Link via Prof. Volokh, who rightfully wonders at CAIR's crabbed vision of free speech.)

In the meantime, a somewhat amusing article in the Daily Telegraph asks two questions about the controversy that I'd like answered:

• Is it irony alert time? Shouldn't non-Danish Christians be up in arms about the desecration of religious iconography, given that the flag of Denmark is pretty much a white cross? Actually, scratch that: the last thing we need is one more reason for one more group to get righteously angry over something trivial.
  
• More important to those who worship the almighty dollar: who's supplying Danish flags to Palestinians? Given the way things are going, we need an internet startup promising to rush deliver ready-to-blaze flags to demonstration-prone areas. ("The flag of your oppressor in 24 hours or less! Free box of matches with every order! Ask about our Frequent Immolator special, and remember, there's always bulk discounts on Old Glory or anything with a Magen David on it!") Is this the next hot IPO?. . . .

UPDATE: Apparently, it's a highly competitive market.

Posted by Anthony at 04:46 AM | Permalink | Comments (1) | TrackBacks (0)

Top Gun 2 : Brokeback Squadron

I love it when the internet meets people with too much free time on their hands.

Posted by Anthony at 02:26 PM | Permalink | Comments (0) | TrackBacks (0)

No, not the movie. The lady is a fully paid-up member of the Vast Left Wing Conspiracy (although she's let her membership in People for the American Way lapse), so no overly-lengthy shepherd kiss-fest is going to give her the vapours.

No, she was shocked at the short story. Disgust filled her before she reached the first page. Actually, she was appalled as soon as she opened the cover of the unmanfully short paperback and found not a semi-naked Heath and Jake in full-clinch step-back mode, but instead the engorged price of $9.95.[1]

(That's almost sixteen cents per page. I'm glad she didn't see that the hardcover version goes for $14.95, though there's a 32% discount at Amazon. This for a story that you can find for free with some simple Googling.)

Me, I'm a good little capitalist, and this octavo nearly inspires me to same-sex marriage myself. Heck, if I happened to find the marketing genius, whoever he or she is, who figured out how to sell a New Yorker short story at ten bucks a pop, I'd be tempted to get down on bended knee.

[1]: Did I mention she's been teaching me romance-novel metaphors?

Posted by Anthony at 03:07 AM | Permalink | Comments (1) | TrackBacks (0)

Google enters the Chinese market, and in order to do so has agreed to actively censor materials in its search