Saturday, February 28, 2004

Political Donations - Is One Person's Ideological Crusade Another Person's Corruption?
Something I'm brooding on. Many people who care about the public interest have critiqued a system where elected officials are dependent for reelection on the money given to them by big corporations. I have a bit of a problem with this myself - special interests love using the government to knock out their competition. But are all donations necessarily to thwart to "public-interest". I doubt it. Some donations are just to keep government off the back of businesses that would otherwise be regulated in an inefficient manner. Would public interest minded people have a problem with that?

Something tells me, yes, they would. In the minds of many, it is not the purpose of the donation, but the donation itself that is corrupting. A donation alters elected behavior, and I am quick to think that many good governance types view the least corrupt government as the one which has its behavior altered the least amount by extrinsic forces. A belief I would share if I believed that elected officials were actually competent.

I think the above is the wrong test. A corrupt government should not be viewed as one whose elected officials accept donations, but rather one where those with access to power use it to thwart the public interest. In my view, donations are only one way to power (and one that doesn't necessarily thwart the public interest); it is equally "corrupt" to thwart the public interest by other means, or with perfectly good intentions. This view leads to the conclusion that one person's ideological crusade should be viewed by another as corrupting the government.

Any thoughts?

Friday, February 27, 2004

The Jobless Recovery Is a Good Thing
If the economy is growing, but jobs aren't, unless I am mistaken that signals improved productivity growth. In the long run, the only way to have sustainable wage/economic growth is for productivity to grow faster. So please stop bitching about the lack of jobs. They will come...and with better wages too than before.
Screw Kerry's Wife, and the others who attack this company. Yes, Walmart destroys some businesses (including some close to my home town). It also provides better shopping than anybody else, and gives poor people a higher standard of living. My brother Tzvi is a proud owner of their stock, and if I have my way, I'd like to buy some of it too as a show of support against increased attacks on this company.

Can somebody with web expertise please design a "I SUPPORT WALMART" button? I'd proudly place it on this site, and would encourage others to do the same.
Sorry Mom and Dad, looks like no Saudi Arabia trip this year....
From the Guardian
Saudi Arabia, normally a byword for stern and puritanical sobriety, is preparing to show the world its jollier side by issuing visas to tourists.....
The supreme commission for tourism's website lists those who will not be allowed in: Jews; people with Israeli stamps in their passport; "those who don't abide by the Saudi traditions concerning appearance and behaviour", and "those under the influence of alcohol".

Something tells me they wouldn't take too kindly to agnostic people like me anyway. Either way, I still have an Israeli stamp on my passport, so no dice.

(thanks to Anderw Sullivan for the tip)
The order I check the three main Blogs
1) Andrew Sullivan - I can care less if his blog deals 75% with the gay marriage question these days. His writing is good, and he actually cares what he writes about
2) Instapundit - The guy has the best links
3) Volokh Conspiracy - My problem with this blog though is that I just don't share its sense of humor. Nor does the current state of 1st Ammendment law interest me all too much. However, they got so many creative writers that something eventually catches my eye.

Thursday, February 26, 2004

TV Executions
Wasn't there an Arnold Schwarznagger movie on this.......Running Man or something like that? The Angry Clam website is all for it...even though I think it would be quite entertaining, Shawshank Redemption convinced me that the Death Penalty is a bit of a cop out. Three minutes kills a man's body. Thirty to Life kills his soul.
Want to Reform Social Security? Raise the Retirement Age - Just Not at Once
Here is my proposal - every five years, raise the retirement age one year, until it matches life expectancy. In the long run this will cut back against the problem of having a large number of retirees supported by a small number of workers, without falling afoul of one of the original purposes of the program (supporting those who had unexpectedly outlived thier savings). Why gradual increase in retirement age? Because people count on social security, and we need to give them time to adjust their plans/expectations.

Wednesday, February 25, 2004

Tort Reform Redux
Below is my response to comments by a friend questioning whether the same sort of tort law reform should be passed into the criminal law sector. Just for the record, if anyone reading this knows my prior work experience, these views are mine and mine alone. I do not represent any group or entity. My response:

On a perverse level I would be all for extending the loser pays sytemt to criminal law. Considering the conviction rate in the Federal system, it would certainly reduce the costs to the taxpayer. Even on the state level, the state would most likely win out. Especially if you consider investigative costs etc. Unfortunately, I don't have any empirical evidence to back this up, so I could be completely wrong.

Regarding criminal law specifically, I do believe some reform would be great. I have two proposals, 1) a loser pays system, and 2) the forfeiture of a percentage of net worth assets for those convicted, really a punitive measure, which would be used to defray investigative costs, as well as public defender fees for indigent defendants.

First, the fair way to handle a loser pays system would be to have individuals who don't have public defenders pay for government legal fees (most likely not investigative fees, as that would be too onerous). Similarly, if a defendant paid for his own defense and was acquitted, the government should pay his fees.

I don't think it would make prosecutors less aggressive as it would probably work in the government's favor. However, local police departments would have a problem with it, because of the number of people who are arrested who aren't prosecuted, DUIs, simple assaults, trespassing, etc. You would probably have to have this loser pays system only for people actually charged. Some defendants would lose out incurring some legal fees, but then again, at least they're not being prosecuted and the costs would not be too great.

As for the second proposal, the punitive measure, I think we should have a rolling percentage of that individual's net worth taken for a conviction, with some sort of low threshold for poor defendants. For example, if someone has a net worth greater than $100,000 they should lose a percentage of what they have greater than that amount depending upon at what point they plead guilty or are convicted at trial.

My reasoning for these proposals is not exactly the same as the tort issue. On the criminal side, I just don't believe taxpayers should have to pay for the costs of crime. I think we should bleed people who commit crimes, over a reasonable net worth. They are the ones who benefit the most from society and, if they choose to violate the law, they should pay the price. I would say it should only apply to felonies. You could even come up with a scale similar to the sentencing guidelines which accounts for the severity of the crime.

The punitive measure's sliding scale of the percentage would be based upon at what point the defendant was convicted. If you turned yourself in and confessed, 10%, when first approached by govt agents, 25%, after indictment 50%, just before trial or during trial 75%, and if you go to trial and are convicted 90%. The money should first go to repay victims which would make it more than punitive but a restitution measure, then for government costs.

Of course, this all smacks of some capitalist bargaining with justice. However, indigent defendants who are already covered by public defenders would not be affected. In fact, indigent defendants would benefit, if the government could defray the costs of investigation and prosecution and more money would be available for public defenders. Or, the funds recovered from convicted defendants could go into public defenders' budgets.

There might be a downside to the fact that prosecutors may not want to charge the wealthiest defendants who can afford to pay for the legal dream team, if the government would have to reimburse them if acquitted. Again, a study of what percentage of defendants charged are convicted would have to be done, as well as looking at the amounts to be received from the seizure of assets for investigative costs. I'm pretty certain, the government would end up on top. Of course, there would be additional pressure on defendants to plead guilty. Some might say this additional burden would make it more likely for an innocent defendant to plead guilty. However, it is certainly more fair to the defendant acquitted who has spend large sums of money to save himself from going to jail.

In extending my tort idea to criminal law, we have to keep in mind there is a vast difference between the government's interest in a criminal prosecution and the plaintiffs in a tort suit. The government generally has no personal interest in bringing the case. The people involved are faceless bureaucrats who, biggest difference of all, do not receive any form of commission. So, I would argue reform is more urgent in torsts, as there is not the same level of abuse in the criminal system as the tort system.

The amount of self-interest involved in a tort suit makes it much more ripe from abuse. When it comes to prosecution, there are often as many people complaining about the government's lack of prosecution as there are those complaining there is too much.

Nonetheless, the same sort of loser pays system could be extended to the criminal system.

Reforming Tort Law - A View After the Federalist Convention
Tort law needs to be reformed by adopting a loser pays system and to reform the manner in which plaintiff's lawyers are being paid.

Of course, the immediate response to my proposition is that "the poor" will lose out. That seems to be the immediate battle cry of the left, but doesn't take a reasoned view of the problems involved.

Last weekend at a Federalist Society symposium, I had the opportunity to see law professors debate the issue. One, Professor Bogus, a former plaintiff's lawyer, stressed the benefits of the tort system in changing unsafe practices by corporations and attempted to defend the actions of plaintiffs' lawyers. The other, Professor Priest from Yale, weighed in on the issue with his vast experience and study which he had done over many years, concluding, essentially, that torts are more of a form of wealth redistribution than any system designed to recompense victims. In fact, Professor Bogus admitted that torts were more effective at changing unsafe practices than they were at making victims whole. (Pardon me if I misstated either of the Professor's views.)

The problem with torts, quite simply, is that it is a form of legalized extortion in the U.S. Professor Priest is exactly right in that it creates a system of wealth redistribution. I would go further to say that the wealth is not only redistributed, but more likely is redistributed to plaintiffs lawyers as opposed to their clients. While Professor Bogus may be correct that it has made some improvements in safety, that does not necessarily mean the system does not need reform.

The goal of making victims whole, which should be the purpose behind the tort system is utterly lost and it should be recovered. The current system encourages individuals with no actual injury, or a minor one, to seek out as much medical help as possible. Throughout the U.S. there are lawyers, chiropractors, and medical doctorswho use the accidents in which these individuals have been involved for their own benefit. Ambulance chasers pay runners to bring accident victims to their offices. They then send the "victim" to a chiropractor who performs few actual medical services, if any are needed at all. These lawyers often encourage and entice their "clients" with promises of insurance money. The lawyer files suit. Because of the current tort system, the defendant in the suit has a choice of paying costly legal fees to defend themselves or pay off the plaintiff. Many insurance companies have a threshold of $10,000.00 which they are willing to pay to get rid of a suit.

Who loses in this system? 1) The defendants, mostly insurance companies, other corporations as well, but really any individual who can be sued who has any resources worth going after. 2) The customers of these corporations who pay for these settlements. 3) The plaintiffs. That's right, the plaintiffs. The plaintiff pays out about a third to the lawyer and a third for medical bills. For those plaintiffs who are not actually injured, they do get some money. For those that aren't, the ones who actually have legitimate claims, they often receive shoddy medical care, if any actual care. Also, they are often left with a quick settlement instead of the amount they actually deserve, because the lawyers running these "insurance mills" work on volume. They don't have time to actually litigate a worthwhile case.

There are two other wonderful byproducts. 1) Attorneys who refer their clients to finance companies, usually for a kickback or some other benefit, who charge near usurious interest rates. In this way, even the clients with fraudulent or frivolous suits lose out. They often end up losing money on the entire event and can't complain to anyone, because they have been party to the fraud. 2) Corruption. In states where judges are elected, plaintiffs lawyers tend to be more successful at being elected. If successful, they make more money than their defense counterparts, so they have more money to run campaigns. They also have more money to contribute to campaigns. Some elected judges are not above deciding in favor of one side simply because of a campaign contribution.

The loser pays system would dry up this cesspool of corruption that essentially only serves to line the pockets of a class of people who are parasites on our society. Certainly, some plaintiffs lawyers do good work. Certainly, some are honest. However, those that are could easily flourish under a loser pays system. They would only cases with merit. The defendants would actually have an incentive to settle if they realized that the cases against them were strong as they would not want to pay both theirs and their opponents legal fees. On the other hand, they would have the incentive to fight fraudulent, frivolous, and weak claims.

The problem would be the effects on weak claims. Plaintiffs that may be deserving, but do not have a good case. Obviously, the preponderance of the evidence standard helps to begin with. They have a low threshold to prove. Also, juries may be even more sympathetic under the current system.

So what could be done about those poor who did lose? The plaintiffs lawyers are used to not receiving a fee when they lose, but how could defendants recover the legal fees. Simply, the plaintiffs lawyer could be held for the fees. While this idea is obviously going to cause alarm bells for most attorneys, it's quite reasonable considering the huge contingency fees plaintiffs lawyers receive. While I believe contingency fees are outrageous, this requirement for them to pay their opponent's fees would be a reason to maintain the current fee structure. Some will argue that the attorney should not have a personal stake in their client's interests. Well, they already do with the current contingency fee structure. They've lived by the sword for many years, it's time to let them die by it.

How would this system affect the corruption that exists as well as the predatory lending of clients? Unfortunately, it wouldn't directly affect either. Plaintiff's lawyers would still have large amounts of money. However, that may be necessary to provide a safety net for poor plaintiffs who lose good cases. If would indirectly have the effect of putting dishonest plaintiffs lawyers out of business though who would be less likely to engage in such dishonest behavior.

Also, I am assuming loser pays means that the losing defendant pays the contingency on top of the settlement amount. That way, the plaintiff recovers the full amount owed to them.

Just something to think about.

Tuesday, February 24, 2004

Cardinal Collective on the Pakistani Spring Offensive
Good reading
new product promises to put gorgeous babes in their place.
why be a stocking-stuffing, rock-providing chump, suffering through law, med, or b-school for a jappy, conniving catch, when it's so easy to knock super-appealing chickens off their little feet without cash, good looks, or ripped abs? with jagger's powerful moves (based on a scientific study of "natural playboys"), any old joe can surmount the time-tested defenses of the ultrasexy "bad attitude" chicken, or any other chicken for that matter. what's the key? you manipulate your target's simple "social programming" to make her "want to win YOUR approval." haven't yet found a comparable product to force men back into the insecure therefore extravagant provider role. developing...
SPILF Preventing the Objectification of Men
Apparently, there is a bit of controversy going behind the scenes the at the Stanford Public Interest Legal Foundation Auction (or SPILF Auction) which takes place each year to support law students who work in the public interest field over the summer. Frequently auctioned items include autographed portraits of a "hero" (Thurgood Marshall), trips to the airport, and home cooked meals. An anonymous reader emails me this story about one item which won't be in the auction.

Several weeks ago a 3L student associated with the SPILF auction approached a group of 2Ls and convinced them to put together a calendar to be auctioned off at the SPILF auction. The group of 12 individuals were finally persuaded by SPILF leadership to put together the calendar featuring pictures of each of the individuals, one per month. SPILF leadership promised to incorporate the calendar in the live auction, noting that it would probably raise a lot of cash. Also encouraged to create a similar calendar, a group of 12 1L men decided to do the same. After literally spending hundreds of dollars on props and production costs for the calendars, the SPILF board decided that the calendars would not beauctioned in the live auction because it raised "much controversy" related to "the objectification of men." (as if the men in the calendar were sacrificing honorable careers in order to capitalize on their physical appearance!) Ironically, the SPILF board thought that it would be permissible to auction the calendars in the silent auction. Isn't this just another example of a "solution" by controlling liberals that (i) addresses a non-existent problem and (ii) doesn't even come close to addressing the supposed problem?

Jenn Chou, of SPILF, writes
1) it was never promised as a live auction item
2) both calendars WILL be in the silent acution
3) there was no "protest" in moving it to silent; the entire board was in agreement
4) i've given you all the reasons for why it was moved to silent, none of which invoke viewpoint or content-based discrimination
Draft update
Ok, I've been reading on things, and here is what I think -
1) The Draft is definitely a possibility
2) That being said, the bill mentioned in the previous post was put out by a democrat senator who is trying to keep incentives on Bush not to have an aggressive foreign policy
3) The way the draft would probably function is listed here
4) Many are saying that 2005 is a possibility for a draft. While Bush advocating a draft would almost definitely cause me to NOT vote for him, I think this could also be scaremongering tactics by those who hate the president. I hope I'm right

Monday, February 23, 2004

Granted, the source is incredibly suspect, but does anbyody know more about this?

Update Newsmax, on the opposite side of the fence is alluding to the same thing

Vancouver Indymedia has a discussion on this here

The Selective Service has been quietly filling up draft board positions, reports Salon

Rumsfield said in December that "We Need a Bigger Military" yet military recruitment is down

A skeptic points out

First go here:

mind you I found this in about 2 minutes with a google search. This is not exactly the dead sea scrolls here. Here's a quote from the pentagon's strategy plan:

"The data shows a significant shift from enlisted to officer manpower since World War I...New technologies tend to be officer heavy when first introduced because they are initially complex and require doctrinal and organizational change."

This means that with all these new technologies are officer intensive and a large enlisted force couldn't handle the duties very well- unless of course consisting of NCO's primarily which are not generally acquired by the draft in the first place.

again, in that same report read pp. 15-17 and you will see why a draft is no longer feasible- "During past buildups (e.g. Vietnam), average experience goes down as conscripts enter for two-year terms of service. Moreover, in such period, retention also decreases for all services. With the advent of the All-Volunteer force and especially the Reagan administration, enlisted experience has increased significantly."

again p. 23: "The adoption of the all-volunteer force in 1973 was perhaps the most significant event of the last 50 years. Since then, all the military services have had to compete for qualified people in the removing the "free good element" from military manpower, Pentagon managers were challenged to pay more attention to efficiency issues and to the notion of tradeoff analyses. "

again p. 27 "Training, a skill-based concept that results in immediate ability to do certain tasks more proficiently, is slowly giving way to education of the enlisted force as a knowledge-based force becomes needed for successful performance."

finally from p.35 "...DoD should be trying to shape the future military work force toward mission need and desired outcomes instead of largely reacting to past changes in the external environment."

In other words, the pentagon would have to be seriously smokiing something if it were to request a reinstated draft when all of its HR personnel are telling it to do exactly the opposite: retain older personnel because of increased viability via increasing pay and incentives for returning to service.

Tell that to the crazies at workers world

Notes from the Federalist Convention
I haven't been able to post much this weekend due to traveling to the Federalist Convention in Nashville. The convention was, well, a convention. Not that great, not that boring. Interesting, one of the panels with Professor McGinnis from Northwestern, mirrored my last post on special interests.

I'll write more on some of the panels tonight or tomorrow.
Good article on Blog Evolution
Read it here

Saturday, February 21, 2004

Those Who Favor Protectionism are either Special Interests or the Tools of Them
A special interest is a group that mobilizes to pass laws for its benefits rather than society's. The worst special interests are those whose laws end up screwing society even though they benefit the special interest itself. Those who oppose trade fit clearly into this group.

Free trade is generally opposed because although it creates a net benefit for society, that benefit is spread out and difficult to notice, while the cost is concentrated allowing political mobilization.

Industry tariffs within the sugar, textile, and steel sectors (as three examples) or subsidies for farmers not to grow products create a net loss for our society through higher prices that must be borne by the consumer. This becomes even more true when coupled with the fact that these tariffs/subsidies often result in corresponding preferences in foreign countries that harm our workers that create exported products.

When you look at all of these factors, I don't see how anybody could AVOID casting those who oppose free trade as the tools of special interests.

Friday, February 20, 2004

The Upcoming Protectionism Battle
Edwards is pulling hard for a return to protectionism on a weekly basis. Originally, this made me quite leery of him winning. After watching protectionism creep up over the past few years, my mind has changed - we need a showdown on whether this country is going to be for free trade, or for special interests. Let Edwards win the Democrat nomination, and let's have this as the '04 issue.

Yes, I am aware this doesn't play well in battleground states. I am also aware that Bush tends to be a free trader in name more than reality. But this would be a chance for Bush to redeem himself. Also, free-traders can't keep hiding on this issue. Eventually we have to confront the critics, and show them to be apologists for special interests. Plus, a battle on trade policy would give Bush the chance to paint himself again as a fiscal moderate instead of a liberal in republican clothing along with giving him another issue to take the educated, socially responsible position :-)

Thursday, February 19, 2004

power-hungry females whine as U.S. governors wise up
having witnessed 8 years of hillary, who could blame the nation's governors for slowing female hires? says hillary, we still "have a long way to go."
this just in: there is "hope for a truce" in the war between the sexes!
an ex-boyfriend just forwarded me this quaint, homestyle advice for a return to sexual sanity. it made me feel so fuzzy i just had to slip on some cuddly lingerie and sit down to do my nails with a nice glass of estrogen. shrews of marriageable age should hearken to granny lest they end up ringless and without a provider. males are well-advised to keep their wives' closets well-stocked with booty-enhancing skivs, lest the shrews become untameable. Furthermore, keep them pregnant for without the ability to "bring forth and suckle children," their bodies, susceptible to "several kinds of systemic failure," will "shrivel and die. had i realized sooner that men's bodies were things "of little beauty, but much power" maybe i would be changing diapers by now, safe from systemic failure and protected by my very own "high-performance machine." goodness, what a pity!

Wednesday, February 18, 2004

Liberals in Academia, Continued
Alright, I've got to respond to this "liberal" intelligence theory. First, the ivory tower is just that, an ivory tower which separates intellectuals from reality. Intellectuals spend all the time thinking, and no time doing. Their ideas are not tested in the real world. They never have to face the difficulties of actually putting their plans into action. Sure, they write articles and expound on just about everything, but they are accountable for none of their ideas. They don't have to work two jobs to feed their families. They don't have to drag murderers into jail. They don't have to fight wars. They write all sorts of articles and conduct all sorts of studies, but when they're wrong, they don't lose their job. They certainly don't lose their life. The "rabble" out there understands the world, because they're the ones who have to scrape by and fight to survive.

Like I care what Economics professors think. If they're liberals, they clearly don't understand economics, because they do not understand human beings. Or, they simply choose socialism to promote mediocrity. That's their choice, but their skewed viewpoint is certainly not superior.

Are Democrats more libertarian than Republicans? Certainly on some issues. The question is which issues should the government stay out of? Should government attempt to control the free market? Should government throw criminals in jail? Should government fight wars? Should government criminalize behavior that does not impinge upon the rights of others?

Ultimately, this liberal arrogance which believes that the liberals are the intellectual superiors of the masses leads to a desire to control the masses. That is as far from libertarianism as you can get. This belief that the economy can be controlled, that wealth can be redistributed, that government can control all ills, or any ills, for that matter, is what drives the Democrats to tighten their grip on the throats of the people. Certainly, their motives are pure, but they are naive in some cases, or arrogant in others.

A true libertarian believes that the individual should have the ultimate control over whether to succeed or fail on his or her own merits based upon his or her own decisions. The Democrats believe that no one has to fail, that the government will be there to provide if they do. They believe that we should take from those that succeed to help those that fail. Those may be simplistic terms, but that is the core of their philosophy. It sounds nice, but it breeds inefficiency and laziness. It would turn the U.S. into Europe and I would rather die than see that happen.

Intellectuals are nothing more than critics and as Teddy Roosevelt said, "it's not the critic who counts

Tuesday, February 17, 2004

Liberals in Academia. Liberals Conforming. Coincidence?
Three takes
1) Robert Brandon - Academics are smart, and tend to be liberal. Liberals tend to be smarter
2) Glenn Reynolds - Most Academics are unoriginal
3) Arnold Kling - Liberals tend not to like responsibility, and academics tend not to need responsibility, so liberals end up as academics

My take? Where the hell is this liberals are smarter crap coming from? Yes, there a lot of dumb conservatives out there. However, of the truly intelligent people that I have met in my life, very few have been liberal. Almost all have ended up being libertarian. How do I reconcile this with the fact that almost all of my law professors are liberal? Well, almost all my econ professors have been libertarian, so like I said, the most intelligent people that I have met in my life have tended to be libertarian :-)

Seriously why are there so many liberals in academia? Obviously I don't believe that liberals are smarter. Nor do I buy the argument that liberals don't like to take on responsibility, mainly because it conflicts with my personal experience, and there is always a drive to change the world that many of those on the left possess (tough to view going to africa with the peace corp and working for an obscure tribal village as not wanting to take responsibility).

I think the best explanation is that the Academy rewards cleverness so long as it conforms to accepted norms. Further, social pressures of the university causes more students who tend to be susceptible to groupthink/believing acceptable things to become liberal than conservative/libertarian. Liberals, having a greater concentration of individuals who have a history of conformity, succeed better in a field that demands it, leading to the disparity.

Monday, February 16, 2004

White Only Scholarship. Does it Surprise Anybody?
Minority groups will reap what they have sown. Reverse discrimination through the hypocrisy of preferential treatment and cultural rules that allow discrimination so long as it comes from African Americans towards other groups, will lead to a second era of increased racism. We may be seeing the beginnings of it now. What a pity. With all the cross culture interaction (music, sports, media) I thought five years ago that the problem of racism would steadily decline to nothingness during my lifetime. I no longer feel that way. I hope I am wrong.

Sunday, February 15, 2004

Farmed Salmon is NOT Unsafe
Here I am, avoiding it like the plague for the past month, because my exgirlfriend freaked me out about it. Thank god for this WSJ editorial setting the record straight, because I live off the stuff.

Saturday, February 14, 2004

Elliot to go to Federalist Convention
Sometimes when I'm home I feel like I am going back to early childhood. My room hasn't changed since kindergarden - my sports penates are still on the wall, and the house is still filled with tacky 90s wall paper which was once avant garde, but now is sorely in need of replacement. All that's missing of course is my two younger brothers, but that is another story for another time.

One of the nice things about being at home is the chance to recover in peace with family and old friends. Sure the weather sucks, but that same constantly nervous energy that is everywhere in Northern California is just not present here. The slower pace is definitely helping me heal, and I'm ready to get out of here on Friday. But I am not going straight back to California. I checked ticket prices and found out that I could get to Nashville much cheaper (surprise!) from Cleveland than San Jose. Why Nashville? Well it's the location of this year's Federalist Convention, the often demonized but never duplicated society whose main purpose is to prevent our courts from reverting into a mini (or not so mini) legislature. I was originally hesitant to go because it was too expensive from California and Tai wouldn't pay to come along. Being newly single and in Ohio for the week erased both concerns. So my goal this time around is to go to the convention, watch all my friends get plastered, and maybe meet a cool person or two from a different school. So if any of you readers are off to the convention as well, let me know. I'll introduce you to some Stanfordites, and maybe we'll all grab a drink.

Friday, February 13, 2004

U.S. Soldier Muslim Convert Arrested for Allegedly Helping Al Queda.
If you look at his picture and story what is striking is that he appears to be just any normal American. This shouldn't be a surprise to too many americans, but I think it is as most associate Islam with people of african, middle eastern, or southeast asian descent. However, Islam seeks out converts regardless of race...a fact that is very apparent at colleges these past two weeks. Both Northwestern and Stanford have had free food/learn about Islam events for any passerby. Not that there is anything wrong with that - religions are free to go after converts.

What worries me is that converts to a religion are easily swayed to follow a teaching to the letter, no matter how extreme that teaching can seem to be to those uninitiated into the religion. This is not a new phenomon - Spain used Jewish converts to Christianity as its fearest supporters during the inquisition, and there is a long history of Islam using recent converts as its fiercest warriors (i.e. the Janissaries of the Ottoman Empire who in their time were the most feared soldiers in the world). On a personal note, I know of this effect from experience - my entirely family converted to an extreme form of a different religion when I went away to Northwestern - albeit a non-dangerous one that places a high value on human life, which clearly is not a shared charecteristic with a group like Al Queda.

The questions here is whether those who are preaching Islam to younger adults are putting the recent converts in contact with the extreme elements of the religion, or if the converts are just more predisposed to follow this element of the religion when found. If it turns out that the answer is the former, where does this leave us?

Thursday, February 12, 2004

Drudge is reporting that Kerry is having an affair. Not passing judgement here, but there goes the electability illusion, which is all Kerry had. This is terrible news for Republicans, who might now have to face the one truly electable candidate - John Edwards.

This just furthers my opinion of Kerry, which is that he is a person who feels that he is entitled to everything - respect, wealth, the presidency, and women outside of marriage. What is lower than a WASPy elitist who claims to be an everyday guy yet earned his wealth by marrying a billionaire heiress? A guy who cheats on her. Congrats Kerry - you just blew your chance.
Who Came Up With the "Electability" Line? Plus, Guess What Secret Society Kerry/Bush are Members of
For about a month, the word that the general media has used to describe Kerry is "electable." Howard Dean was unelectable, as he was unstable. General Clark was unelectable, as he couldn't campaign to save his life. Edwards was unelectable, as he was too untested. Only Kerry, the Vietnam Veteran, had the ability, to beat Bush. This is of course in spite of his flip-flops on any issue requiring a backbone, his elitism (like Bush he was in Skull and Bones at Yale), and his calling for both disbanding the CIA and placing our troops under the dictum of the UN in the past.

So where did this electability line come from? And why did everybody start saying it all at once? Its usage seems too sudden and widespread to be coincidence; rather it looks to be a coordinated media assault on the other democrat contenders. Perhaps those Skull and Bones connections paid off a bit in getting well practiced message of electability to be adopted by the media.
How to save money on taxi cabs, and clear head at same time - Flirt with Flight attendants
My travel plans were to get back to Ohio, but I had a layover in Chicago of a day. Not a problem - some of my old fraternity brothers at FIJI were still living in house, and I could always count on them to keep a room open for me. The only problem was getting there - as it is a $50 cab ride from Midway airport to Evanston, IL and I didn't feel comfortable taking the L at midnight for a two hour ride to campus (assuming that the purple line would still be running by the time I got to the last leg of the trip). Luckily, one of the cuter flight attendants for ATA took pity on me and after flirting for a bit, offered to drive me to Evanston as the flight was her last of the night.

One thing I have noticed is that girls tend to flirt more on airplanes. Why is this? I have three ideas (1) I'm wrong - girls don't actually flirt more on airplanes; (2) Won't see the person again, less fear of making fool of themself; (3) Often alone, don't have as large of fear of being judged by peers.

What do you think?

Wednesday, February 11, 2004

Elliot is abroad
Actually, I just left California for two weeks to try and get my life straightened out, but I might as well have gone to another country. It is strange - most people head to warmer climate when they need to get away from things, while I feel that I am right now in the arctic circle. I'll have some stories to write about tomorrow evening.
books on feminist theory an "elaborate form of porn" !!!!
sophisticated gentlemen read on: are you tired of looking at garden-variety porn? according to erik johnson, heartfelt, authentic narratives of rape and degradation may be just what you need to rev up your personal erotic experience.

Tuesday, February 10, 2004

The Death of Stanford Federalist Rant
For those non-SLS students, Federalist rant was the biggest law school listserve for debate at the law school. The problem was that too many people were debating too many things, leading to everybody's inbox getting clogged. To fix the problem, Ying announced, as Fed Society president, that henceforth, only federalists were to post - if a liberal posted they would be unsubscribed. Ying justified this policy on the grounds that Federalist Society Members need their own sanctuary from liberalism, and the sanctuary had been taken over.

I think this is myopic.
1) If you have lemons make lemonade. We had the best discussion forum at the law school, and now its dead.
2) Federalist Rant was one of the few forums that allowed conservatives to be taken seriously by liberals. By controlling the forum, we had an advantage, which cannot be replaced by law-talk (another list-serve, controlled by the law school, which has been proposed as a replacement for Fed-Rant)
3) Federalsit Society could have easily have created a seperate list for all of us die hard federalists who can't bear to debate liberals.
4) Banning liberals makes us look like fascists who are afraid of opposing views. Oops, my bad. It reveals us to be fascists.
5) The true problem was not too many liberals, it was too much mail. The solution should have been not to ban one side of the debate wholesale, but rather to temporarily ban any poster to an overactive thread who didn't move their conversation to private email.

Well, that's that. I got some mourning to do with respect to my recently departed relationship with Tai, so peace.

Monday, February 09, 2004

Elliot not Posting - Relationship with Girlfriend over
I need a day to collect my thoughts. Basically, she's an evening gal and I like to wake up at the butt-crack of dawn. I'll sure miss her.

Sunday, February 08, 2004

Clevenger Responds to some criticism
I am posting Clev's responses to some criticism for him. Bear in mind that I personally do not agree with him at all on this issue.

I'm jeopardizing my legal practice toget your questions answered. If it sounds like I'm free associating here, it's because I'm trying to deal with about a dozen points...


For those who receive most of their information via the networks and AP, I suggest perusing [this] website . (I don't find the Richard Chamberlain story particularly enlightening, but you'll find material on subjects such as whether or not homosexuality is genetic.) NARTH is a group of dissident mental health professionals who believe homosexuality can be treated.


You can find an excellent summary, written by an internist, at this site: Here are a couple of examples (not necessarily from the URL above):
(1) A condition commonly referred to as "gay bowel disease" results from semen penetrating the walls of the intestine and reaking havoc on the immune system (the condition can occur in women who engage in sodomy with a male partner). The intestinal walls, unlike the surrounding tissue of the vagina, are not designed to protect against such penetration (no pun intended).
(2) The incidence of suicide, depression, and substance abuse is substantially higher among homosexuals than the public at large. While gay activists often attribute this to public aversion to homosexuality, cross-cultural studies show that the co-morbidity of homosexuality and depression, etc. is relatively constant. In studies conducted in the 70s, when homosexuality was accepted in the Netherlands but not the U.S., the degree of co-morbidity was roughly equal.
(3) A gay or bisexual male lives an average of 20 years less than a heterosexual male.

Like it or not, marriage in our culture is the sanctioning of a relationship. While many Americans are willing to "live and let live" on what people do sexually, most are not willing to put the state's imprimatur on all relationships. I'm in favor of drug decriminalization, for example, but that doesn't mean I want the government subsidizing cocaine production.
I have great empathy for your friend, Mike. While I do not struggle with that issue personally, I have several Christian friends who do. And I have a struggle of my own that is, I think, somewhat analogous.

I have battled severe depression since my pre-teen years. I inhereted a tendency for depression from my father's. When combined with some unfortunate events in my childhood, my predisposition was triggered and my unpleasant journey began.

You may rightly point out that nobody wants to be depressed (and you are right), while some people may choose to accept their homosexuality. A better example might be someone who suffers from cyclothymia (or an atypical bipolar illness) and decides the hypomanic or manic states are worth the depressive states, so he/she goes off his or her meds. An individual's right to choose is, in my opinion, the most compelling and yet the most complex and troubling issue in situations such as this.

Do I think homosexual people can make a rational choice to engage in homosexual behavior? Yes. But, depending on how one defines rationality, I think people can engage in a lot of behaviors (eating too much, drinking too much, etc.) that ultimately are self-destructive.

This, of course, raises every law school professor's favorite question: where do you draw the line? On one end of the spectrum you can criminalize an activity, on the other end you can sanction and subsidize it. Marriage clearly involves sanction and subsidy (e.g. the tax code) and, as such, I conclude it should not be extended to a behavior that is self-destructive.

Beastiality, necrophilia, etc... Mike, you dismiss these analogies rather blythely, but I suggest they are not so cut-and-dried as you might think. You wrote, "When a man makes love to goat -- you can't say he's not hurting anyone. I can pretty much guarantee you that goat didn't want, well, you know...." Given a choice between being barbecued and
molested, I surmise the goat chooses the latter. I'm about to get really graphic here, but I think you need to follow your logic to its end result. Remember the scene in Cuba from Godfather II (or is it III?) with the donkey and the woman? The donkey isn't getting hurt -- apparently he likes it. So who are you to say that's wrong? Likewise, and as I noted before,
some European countries have lowered the age of consent to twelve. And much of the intelligentsia there supports it. So who are you to say it's wrong to cruise for Lolita? If "traditional morality" cannot inform our modern sexual mores, the line gets very blurred indeed.


Elliot, feel free to cut and paste this to the blog. I've got to get back to work.


Saturday, February 07, 2004

According to a Classmate, I am unqualified to talk about race because I am "White"
I had a long conversation with one of my classmates this week which turned on the question of why there is racism against african americans. My classmate, who I'll call E is black herself, argued that all current racism stems from historical discrimination. In her opinion this racism has caused African Americans to hate white people, a hatred she feels could itself be termed as "racism" (E said not all of her african american classmates share this view, believing instead that african americans are definitively incapable of being racist, an idea both of us found anathema)

My question to her was that if she took it as a given that "white" racism against "blacks" engenders "black" racism against "whites" then wouldn't it be likely that "black" racism against "whites" engenders "white" racism against "blacks?" E's response was that I should be careful not to look at things in such a way since an idea like that coming from a "white" person was likely to offend minorities.

Keep in mind this is one of the more open minded people at Stanford Law School. What does this say about the climate at our institutions? I was shocked at first, but right now I am disgusted. What gives African Americans the exclusive right to determine what is appropriate to talk about with respect to racism? And why do people buy into it?

Friday, February 06, 2004

The Secret to Happiness?
Flow: The Psychology of Optimal Experience
By Mihaly Csikszentmihalyi of the University of Chicago

This is not your ordinary self-help book. Csikszentmihalyi, a psychologist, gave beepers to four thousand people across the globe. Whenever the beepers went off, the people were instructed to fill out a special worksheet asking questions about their level of happiness at that very moment. What the author found was that happiness is determined not so much by who you are or what you have, but by the activities that you do everyday. Specifically, Csikszentmihalyi determined that people are happiest when they enter a scientifically identifiable psychological state he calls “flow”—something akin to the “runner’s high” that marathoners often talk about.
The most important revelation in the book is the idea that we can all achieve flow, and personal happiness, by doing activities that meet certain concrete requirements. Flow activities are activities that are not too difficult, but not too easy. They are activities with a lot of feedback, and the more the better (according to the author, surgery is the most flow-creating profession because surgeons can physically see from moment to moment whether they are doing a good job). They are activities that are meaningful to the subject—activities that act as their own reward and are done for the sheer enjoyment of doing them rather than for extrinsic reasons, such as money, respect or attention. They tend to be activities that give us a sense of “upgrading ourselves,” activities that make us stronger, faster, smarter, more sophisticated, more skilled, etc.
Examples of potential flow activities are reading, music, art, exercise, sports, meditation, video games, gambling, sex, and many others. In fact, almost anything can be turned into a flow activity if it can be modified to fit Csikszentmihalyi’s criteria. The author includes a chapter discussing many common flow activities and giving tips on how they can be adjusted to increase flow.
Interestingly, work is the most common flow-creating activity in America (a little over 50% of Americans get flow feelings from work). This is not to say that work is the best flow activity; it just reflects the fact that outside of work most of us have discovered very few sources of flow. We come home and plop in front of the TV, the ultimate flow-killer (TV is almost completely incapable of producing flow because it is passive, non-challenging, has no feedback mechanism, and generally doesn’t have the potential to give the individual the feeling that he is upgrading himself in any way). That is, even in this day and age, we are still too damn ignorant to figure out how to transform our free time into happiness. Perhaps that is why we undervalue our free time and retreat ever deeper into workaholism.
The implications of the author’s thesis are almost without bound. Although he only hints at it, Csikszentmihalyi obviously thinks that society should be structured so as to maximize flow in as many individuals as possible. The problem is that current thinking tends to emphasize the maximization of wealth irrespective of the consequences for flow. This is funny, because for years empirical studies have shown that, with the exception of the abjectly poor, there is no correlation between material well-being and personal happiness. Yet still the churning meathead mob led by demagogues like Dick Posner continues to rattle on about “the greatest good for the greatest number” without ever bothering to inquire into what that phrase really means—flow, not wealth!

Thursday, February 05, 2004

Gays, Gnats, and Camels
I’m beginning to think that the Republicans’ approach to the “gay marriage” issue in Massachusetts is all wrong. Thus far the President and GOP leaders have focused on amending the U.S. Constitution to prohibit gay marriage. Otherwise, the argument goes, the Full Faith and Credit Clause of the Constitution would force all states to recognize a gay marriage that was ordained by Massachusetts.

That’s probably right, but it seems to me the Republicans are, to borrow a Biblical phrase, straining at a gnat and swallowing a camel. Rather than amend the Constitution (no small task), I wonder if the GOP could use what’s already in the Constitution, namely Article IV, Section 4, to deal with both gay marriage in Massachusetts (gnat, though admittedly I think it’s a pretty big gnat) and the judicial tyranny (camel) that begat it.

For those who don’t spend much time reading the actual text of the Constitution (that would include most constitutional law professors and most of the justices of the U.S. Supreme Court), Article IV, Section 4 reads as follows: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

What, you ask, does Article IV have to do with gay marriage? Stay with me for a minute. In Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), the Massachusetts Supreme Judicial Court first received divine revelation that the state constitution guarantees homosexuals the right to marry (never mind that nobody had discovered that right during the 223 years since the state constitution had been written). But the court didn’t stop there: it ordered the legislature to change the state’s laws within 180 days. Then, in its Feb. 4, 2004 “Opinions of the Justices to the Senate”, the court detailed the parameters of the law that the legislature must pass.

Again, you ask, what does this have to do with Article IV? The issue is whether the separation of powers doctrine is so necessary to a “Republican Form of Government” at the state level that the federal government is obligated to protect it.

One might argue that judicial usurpation has been going on at the federal level since Earl Warren was chief justice (and one would be right), thus the federal government has no business intervening to prevent judicial usurpation at the state level. But there’s a big difference between a court that fabricates law (a la Roe v. Wade) and a court that orders an elected legislature to adopt laws to its liking. And the Massachusetts court is not alone in such tyranny. In Guinn v. Legislature of Nevada, 76 P.3d 22, the Nevada Supreme Court effectively ordered the legislature to ignore the state constitution and pass a tax increase to fund schools.

So what can be done about it? I once asked Professor William Cohen, my constitutional law professor at Stanford, if Article IV, Section 4 had ever been cited in a judicial opinion. He looked puzzled for a moment, then said he couldn’t recall that it ever had – nor was he sure how it was intended to be enforced.

I think I have at least some idea. If Castro invades Florida and takes over the state legislature, then Congress can declare war and throw him out. That much is obvious, as is the case of a home-grown despot taking over the legislature by force. The trickier question is whether Congress can legislatively declare that a state supreme court has so overstepped its bounds that it has compromised the state’s “Republican Form of Government.”

That opens its own can of worms. But perhaps Congress could, at the very least, declare that no state court shall have power to prescribe the acts of the state legislature. Maybe that’s a tautology but, to hear liberals describe it, so is the Tenth Amendment.

The Evidence Against Iran
Insight Magazine has an excellent article on the evidence of Iran's support for terrorism and the U.S. government's efforts to keep it out of the spotlight. As the article itself notes, it makes you wonder whether we have more evidence justifying an attack on Iran than we did against Iraq.
this just unearthed: naomi wolf espouses return to the veil!!!
it seems the suffragettes were on the wrong track after all. what we females really need is a good hard dose of "archaic sexual intensity"!!!

I will never forget a visit I made to Ilana, an old friend who had become an Orthodox Jew in Jerusalem. When I saw her again, she had abandoned her jeans and T-shirts for long skirts and a head scarf. I could not get over it. Ilana has full-length, wild and curly golden-blonde hair. “Can’t I even see your hair?” I asked, trying to find my old friend in there. “No,” she demurred quietly. “Only my husband,” she said with a calm sexual confidence, “ever gets to see my hair.”

When she showed me her little house in a settlement on a hill, and I saw the bedroom, draped in Middle Eastern embroideries, that she shares only with her husband—the kids are not allowed—the sexual intensity in the air was archaic, overwhelming. It was private. It was a feeling of erotic intensity deeper than any I have ever picked up between secular couples in the liberated West. And I thought: Our husbands see naked women all day—in Times Square if not on the Net. Her husband never even sees another woman’s hair.

She must feel, I thought, so hot.

Wednesday, February 04, 2004

Elliot on hiatus
Sorry I am not posting - some personal shit came up. I won't be posting today either.

Tuesday, February 03, 2004

The Bush Budget Cut Lie
Who is the Wall Street Journal kidding on the Bush budget? David Bernstein over at Volokh has it dead right. $4.9 billion budget cut is nothing after a $500 billion medicare benefit. Ok - maybe the $4.9 billion thing is annual - who cares?

Monday, February 02, 2004

Volokh's Talk at Stanford. Plus, should gambling on Sports be considered Investing?
Just getting back from lunch with the guy. A lot more laid back than I had expected. I'm hoping he accepts the offer to teach here in the fall, mainly because I think he would be a good prof to take Con Law II under.

One interesting tidbit from the conversation came about on gambling. We were all joking around about the Iowa Futures Market where you can bet on who will win the Democratic nomination, general election, etc. I think it was co-blogger Zummer who was the one teasing Volokh (I could be mistaken) that if there was such a market for Supreme Court cases, the professor could make a killing because he knows the law better than almost all investors (superior information wins money with bets). This started a conversation about whether the futures market was gambling, with somebody pointing out that the general rule is that futures are not gambling because they exist to defer economic risk, whereas gambling creates risk in of itself.

If this is the case though, why wouldn't betting on a sports game be viewed in the same light? Let's suppose that the Cleveland Indians are down a game in the race for the wild card to the playoffs to the Toronto Bluejays. You own a bar in downtown Cleveland, which will get a huge boost if the Indians get to play in the playoffs, and want to hedge against the risk that Toronto will win the rest of their games and keep the Indians out of the playoffs, depriving you of a large stream of income. So, for "purely business purposes" you bet on the Bluejays to win each game. While this is a sports gamble, it would be undertaken for "purely" business purposes, so one could obstensibly argue that it should be allowed.

Could this defense be tried? Hey - I'm not a lawyer, what do I know?
Lobbyists and Corporate Attorneys are Republican?
Apparently, Kerry thinks that Washington insiders/polite society are a bunch of Republicans
Before some 700 supporters in Kansas City, [Kerry] said, "All those lobbyists. All those powerful interests that meet in secret in the White House. They hear us coming."

Edwards said something similiar in his stump speech
He said I was this little trial lawyer and went up against the corporate interests, the corporate lawyers, the best money can buy, dignified people. You can hear them thinking Republicans. Then he says 'and they looked at me and said what's this guy doing in the courtroom with us? We're the best and the brightest.' Then he turns to the crowd and says, 'you know I beat them and I beat them and I beat them' and the crowd is going crazy because they know this is the guy who can beat the corporate Republicans.

One problem - when exactly did corporate lobbyists and lawyers become Republicans? When did the "elite" of Manhattan and Bethesda, Md. switch their radio listening habits from NPR to Savage Nation? Most of the corporate lawyers I've met have been very supportive of Democrats. I also know that while there has been a bit of a shakeup along K Street, for a long time most of the lobbyists were Democrats as well. So should Edwards be saying "I beat them" or "I beat us, I beat us, I beat us!" Somehow the last one doesn't sound quite as good.

Sunday, February 01, 2004

Midnight Parking Lot Watch
location: law offices of wilson sonsini
date: january 31, 2004
time: 11:59 p.m.
number of cars: 25

update: a light night by wilson sonsini standards. but after all, this is super bowl weekend and i've heard lawyers like to take advantage of this all-american holiday by giving special attention to their kids' unruly mommies.
Why Black People Are Tall and Chinese People Are Short
According to an article in the October 27, 2003 issue of The New Yorker, one of the few African-Americans appointed to the federal bench by President Reagan asserted in a 1997 case involving alleged environmental contamination in a largely minority neighborhood that physical differences among races were the product of their environment. "'Why do you think Chinese people are short?' Hoyt told the laywers in the case. 'Because there is so much damn wind over there they need to be short. Why are they so tall in Africa? Because they need to be tall. It's environmental. I mean, you don't jump up and get a banana off a tree if you're only four feet. If you're seven feet tall and you're standing in China, then you're going to get blown away when that Siberian wind comes through.' The court of appeals in that case called Hoyt's remarks 'unfortunately, grossly inappropriate, and deserving of close and careful scrutiny.'"

I found this in my Capital Markets readings.