Unused and Probably Unusable

The "Griffin dour" bit is my inability to pass up potential puns, in this case on Gryffindor, the House that Harry Potter belonged to at Hogwarts. I guess past tense is appropriate now. I'm book-oriented....

"Experts to discuss the space plan", NYT 2/12/08. Merv, sorry, Peter, oops, Michael Griffin is annoyed that there's talk of coming up with new plans for how space exploration will proceed. He even has a perfectly plausible sounding explanation for some of the dissatisfaction. He said:

issued a response last month arguing that “the questions to be raised at this conference have been asked and answered.” Many voices, he said, were heard in the planning of the program, which Congress finalized in 2005.

In an interview last week, Dr. Griffin said: “We spent three years reassessing the policy and codifying it. Changing it now? I think that’s just stupid.” He has suggested that some of the opposition is a sour-grapes effort by aerospace contractors who wanted a second shot at rich contracts. But, he said last week, “We don’t change space policy in the United States very often — if so, you can’t get anything done.”

Now, I particularly buy his "sour grapes" comment. That's quite likely to be true, in my book.

Partially true. Inadequately true.

Not all the people there are the conceded greedy contractors shut out of a lucrative deal with the profligate government. But then, I'm bothered by that anyway. We often commit ourselves to plans - go to the Moon, reconstruct Iraq, save a city imperilled by a hurricane - and not in each of those cases do we
- pay attention to how much will need to be done
- accurately assess the magnitude of the costs
- consider the available tools at hand, including the contractors, Congress, and bureaucrats who are to perform, oversee, and interfere with the task.

If a contractor is half a billion dollars into a project, say a satellite that's to go up three years hence, in a shuttle (wups, it'll be decommissioned by 2010), how easy is it to discipline it for cost overruns, quality failures, or simple malfeasance? Think sunk cost. Think inertia. My goodness, think about the political cost, not in votes but in campaign contributions, to any politician from the home area of the company that fails to defend its right to be incompetent or worse!

There's a very limited pool of contractors - there almost has to be, based on how Big Science has been done through NASA lo these many years. Faster Cheaper Better is an interesting motto (I always add: pick two), but despite some recent successes it hasn't been NASA's strong suit.

So, Griffin thinks changing policies that he's been involved with deciding, over the last several years, would be changing horses in midstream, or whatever.

Well, clearly he has screwed up. He may have had the best process imaginable, with the most important minds at NASA and maybe outside it. They may have the best plan. But NASA doesn't operate in a vaccuum (ha hahahah I crack me up), NASA has constituencies.

There are the critical public, the hecklers and opponents of space spending. The kind of people who honestly ask why that money isn't being spent here, and it's difficult to show them a pie chart and explain that NASA's budget is less than 10% of the cost of the Iraq war, less than 1% of the total budget. 16.25 billion for 2007, was NASA's budget. We're spending approximately 10 billion a MONTH in Iraq. All sources wikipedia, e.g. here and there.

And what about everyone else? Those who are not anti-space, but weren't consulted? Why wasn't there broader buy-in for NASA's current direction? Heck, why isn't there much buy-in for the idea of NASA? The plan has always been to not market the NASA brand, to cater to the public as dryly and as uninterestingly as possible. Contests? Reality shows? Why get people excited about exploration, risk, adventure, explosions, human drama, voyages, separation, possible death, vast distances and possible enormous treasure troves? None of that is romantic or saleable in the least.

The very first thing that the X Prize and similar things have going for them is that they're not hamstrung by stupid thinking. The whole point is excitement and selling people what they want, selling what will make its own market.

So, to go back and try to make my point: if you come up with a plan, even the best plan, and people who are crucial to your success in implementing it don't think it's a good plan, you don't have a working plan. Because they will resent you for not meeting their concerns, and they will remove you and unmake your plan and leave you behind, your time and effort wasted.

So, include crucial parties in your planning. Or you'll end up like Griffin, grumpy as the intellectual barbarians meet outside the gates to criticize what has been so painstakingly worked out by professionals....

Today the first eclipse of 2008 will occur, for folks in New Zealand and part of Australia there'll be a partial solar eclipse starting this afternoon, their time. Today is also Lunar New Year, specifically the new year generally called (in the U.S., at least) Chinese New Year. (Your mileage may vary.)

This day in 1964, the Beatles were arriving at JFK International Airport.

In 1979, Pluto passed inside the orbit of Neptune for the first time since both were known, and for the last time while they were both known as planets. (Pluto's orbit is eccentric, so that most of its orbit is spent not just outside, but far outside Neptune's orbit. Its eccentricity - deviation from circle-ness - means that is a Trans-Neptunian Object, as well as whatever else it is.) As an aside, Pluto once again "became the ninth most distant planet from the Sun" on 17 Feb 1999... for only a few short years.

Also in 1979, Dr. Joseph Mengele, Nazi war criminal and fugitive from prosecution, drowned in Brazil after suffering a stroke.

A few of the famous dead people born on Feb. 7:
Sir Thomas More (Utopia)
Charles Dickens (Oliver Twist, A Tale of Two Cities, etc.)
Laura Ingalls Wilder (Little House on the Prairie)
Sinclair Lewis (Elmer Gantry, Main Street)
Eubie Blake


Some non-dead persons born today include:
Gay Talese
Pete Postlethwaite
Emo Philips
James Spader
Garth Brooks
Chris Rock
Steve Nash

Today is also the second day of Lent; two days ago was a day of the week of significance, Fat Tuesday or Mardi Gras, the day before Ash Wednesday. The first Thursday of Lent does not have any special name of its own, and feels a bit sorry for itself as a result.

In other news, today, being a Thursday, will not be a Heinlein Friday. Tomorrow... because I don't feel like it right now... won't either. But, I will see about resuming that feature, perhaps not every week, soon.

HB of How Appealing posts the following:

"The American Liberal Liberties Union: The ACLU is becoming very selective about what it considers 'free' speech." Today in The Wall Street Journal, Wendy Kaminer has an op-ed (free access) in which she writes, "One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU's virtual silence in Harper v. Poway, an important federal case involving a high-school student's right to wear a T-shirt condemning homosexuality."
Posted at 08:47 AM by Howard Bashman

Well, I don't know Wendy Kaminer. I do know the WSJ, and its famous hostility (at least on the Editorial and Op-Ed pages) towards liberties of any sort other than economic or pro-conservative.

Wendy may be right. The ACLU's failure to act in this case may mean... something.

I'm just going to stop thinking there. I am going to bet otherwise.

People... in general... who comment on the ACLU's beliefs, tendencies, trends, or nature because of their SILENCE and INACTIVITY in a given situation are usually blowing smoke.

The ACLU is not a government. The ACLU is not a nanny. The ACLU does not owe you anything, and if you don't support it, then much like a job or a relationship, it will go away.

The ACLU takes on cases - not all cases - in which important considerations of constitutional liberties are at stake, and the case is either winnable, or should be hard fought.

If the ACLU thinks that a case is being adequately managed, it will generally not waste its (finite) resources. If the ACLU for whatever reason thinks a case should not be won, then it will do the same. If the ACLU is just too busy to work on a case, even an important case, because there are more important cases, the same.

If the ACLU fails to act... that says precisely nothing about anything other than the very fact.

In contrast, when the ACLU does act, speak, participate, or litigate, you can draw your own reasonable conclusions from their affirmative behavior.

Failure to get involved in a case pitting important 1st Amendment considerations against the rights of schools? I mean, they've done that case. Their position is known. Other people can argue that case. Would an amicus from the ACLU clarify something that wasn't known before? Should they be telling people that this involves free speech?

People who criticize the ACLU often have valid reasons. I always wonder, though, when the reasons they state, are not valid ones. What is it about liberty, free speech, or constitutional protections that these critics hate? Or is it just that they aren't paying attention, or being disingenuous, trying to win political points despite knowing better?

This is another way of asking, "Fool or knave?" Again, this isn't about Ms. Kaminer. For all I know, she's put her finger right on the big problem with the ACLU, and I'm not going to waste my own time reading anything in a WSJ op-ed criticizing the ACLU. Wake me up when it's a story in a reputable source ("having some integrity") about the same thing.

And with that, I'm done wasting my time about that post on HA, period.

Rudolph William Louis Giuliani III, coddler to corrupt cronies and all-around self-promoter, repeated his slur against Democrats tonight during the Republican presidential debate.

Keith Olbermann's already handled this one. I don't have to rehash Mr. Giuliani's pathetic record of preparedness before 9/11. I don't have to point out that RG, America's beloved mayor, championed a man, Bernie Kerrik, who wound up being a prime example of Republican promotion of friends rather than accomplishing the job. This is part of the Alberto Gonzales scandal, not just part of RG's own disastrous record for the time leading up to and following upon the attacks on us - on the American way of life. A way of life RG perhaps thinks he represents, being a mayor of America's greatest city.

All I have to do is link to Keith's delightfully frothing opinion, available on finer Youtubes everywhere: "Olbermann's special report on Giuliani's Fearmongering: How Dare You, Sir?" Hat tip to Crooks & Liars dot com.

Anyway, back to RG's ridiculous quote. "Back on defense" against terrorism?

Giuliani, and other anti-Christs (lit: those whose actions are in direct opposition to the words and deeds of Jesus, even while superficially extolling or acting in his name), get things a bit backwards. Perhaps naturally so.

Giuliani thinks that Bush is playing offense against terrorists. Is Rudy too dumb to know the names, nationilities, and sympathies of those who were aboard the planes on September 11, 2001? Does he think perhaps these were Iraqis?

Democrats have ideas about not being reactive. Not doing what the terrorists want, for a start. Not hitting back blindly at the wrong Muslims. Not giving the impression that we are at war with Islam, or indeed any country that poses no threat to us. Not alienating the world. Not sacrificing our civil liberties on the altar of - what? Patriotism? Jingoism? A stupid willingness to cut our own throats, lest someone else do it first? Let's stop doing what the terrorists would dearly love us to do first, and then start talking about who's being defensive.

Bush was not being proactive when he went to war against the wrong threat. Bush was being reactive. Bush was playing defense - badly. Bush has made us less safe. Bush is endangering our lives - continues to endanger our lives, because of his blunders.

Putting in office a Republican who supports Bush's presidency and Bush's decisions would mean that we are beyond playing "defense" with terrorism. It would mean we have lost.

That's right, I said it.

Vote Republican, and the terrorists have won. Because there is no Republican agenda to speak of beyond fear. Democrats stand for a social safety net, stand for social justice in greater measure than we have now. Democrats stand for an end to unnecessary and mishandled wars. Democrats stand for a check against rampant inequality leading to suffering for the poor, the different, the disenfranchised. Democrats stand for Christ's values. Don't take my word for it. Check in a Book.

Republicans stand for: lower taxes on the affluent and the superrich. Lower taxes on estates, because lord knows we don't want to discourage (economics: to tax is to disincentivize) people dying. No stem cell research. No right to an abortion - indeed, to integrity and control over one's own body. No hate crime laws. No laws limiting private ownership of assault weapons by felons - and no laws allowing felons to vote once their time has been served. No equality for blacks, women, gays, foreigners, or the disabled.

Republicans as a party stand against all that is good, all that is just, all that is right. All they have in their favor is that what they push for is what feels good (to some), what is easy (to deny others), and what has traditionally been the case.

It's weak tea for me, but then I'm more of a reform-minded person, at this stage in my life, than a fan of the past, the good times that never were, the glorious olden days. Let's let the past celebrate itself. We have a more just, a more (equitably) prosperous, and a slightly less evil future to build.

And that should be all I'll have to say about Ruddy Rudy until he's out of this race for good. Goodbye, bad man, and don't come around anymore. I'm glad you're pro-gay, but it would help if you had any integrity, any shame, and any fitness for the job you're running for.

I haven't commented directly on the War Against Iraq on this blawg before. I've touched on it, lots. It reflects on the judgment of the administration. It kills our best and brightest. It sours the world on us, particularly the Arab world but not at all confined to the region. It's expensive. It was wrongly justified. It was badly planned and poorly executed, despite great sacrifice by our troops on the ground. It's a disaster, and worse, it was a predictable disaster. Look, we predicted it. QED.

Consider this statement of faith by Roger Cohen of the Int'l Herald Tribune in the NYT:

Because I believe the net impact of American power, mistakes notwithstanding, over the past century has been a freer, more open, more accountable and more rewarding world, I am inclined to heed Petraeus rather than the Democrats in the House.

"The Biggest U.S. Error in Ousting Saddam," April 27, 2007 NYT (Select only, requires password).

Big words. Hard to fault him for his faith. Fine. But I will not willy-nilly go along with Cohen's unwillingness to change horses when he's halfway - can he even say halfway? - into an ocean.

Because I believe the net impact of American military power, successes notwithstanding, over the past 5 years has been a more terrified, more dangerous, more anti-American, and generally closer-to-killing me world, I am inclined to cut Bush no slack whatsoever until he shows some tendency to have a better idea than the Democrats.

His contra-timetable argument is brilliant rhetoric. It's nonsense, of course, because a deadline could be hopeful, for our troops and allies and for all Iraqis (except the ones who will die when we leave...) as easily as it could be an aid to insurgents - or, if you prefer, terrorists.

Bush has been reactive. He reacted to 9/11 by unleashing Cheney's pet plan to invade an unrelated but irksome country. He reacted to Abu Ghraib by condemning the effect on our troops. He reacted to troop deaths, caused by his actions and his commanders' decisions, defensively. He reacted to criticism as poorly as any President in my memory. I had no faith in hm before 9/11. I put faith in him that week because I had to, but I did not feel good about his hawkish instincts.

The same immoral, un-Christian, wrongheaded, perverse, murderous, vicious, foolish, ugly, evil instincts and behaviors that led him to be one of the most depraved Governors of the country - how many death sentences did he set aside? How many did he even pause over? How many caused him anguish, doubt, regret? His deliberate, callous inaction when given ultimate and unfettered power to grant mercy speaks volumes about his indifference or his ambition, I'm not sure which.

- that same pattern of being an essentially bad person when it counted, on the moral ledger of life, led him to disaster in Iraq.

It's not bad luck.

It's not coincidence.

A President without the ability to accept humility before it is politically expedient is virtually guaranteed to get himself into that political mess. Yes-men. Loyal party members rather than competent professionals. Ideals over results. Faith over fact. Death rather than life. War rather than peace. Power rather than process. Arrogance rather than cooperation.

Bush has not been a perfectly imperfect President. If one were to take him, for example, and systematically turn all his right actions into wrong ones, then we might call him the perfectly bad President.

As it is, he's merely the worst that there's been in years and years and years.

Let his legacy be low taxes on the rich, ballooning inequality, failure to identify broken processes that led to 9/11 and Katrina, failure to cope with those disasters once they occurred, failure to appoint and assign competent personnel, a failed attempt to destroy a wildly popular social safety net, and death. Lots and lots of death. It's on the heads of those who incited him, who encouraged him, who voted for him and who aided him, but it's on the hands of all of America.

And what now?

Well, now we take hope and take courage going forward. American citizens have an opportunity. Look into citizen diplomacy ("the right, if not the obligation of the individual citizen to be personally engaged in international relations") - don't leave it up to the experts in government. They can't do it alone, and shouldn't be allowed to even if they could. If there's a local International Visitors Council (IVC) near you, join it. Meet someone from Iraq, from Saudi Arabia, from China, from India, from France. Shake their hands, introduce yourself. Listen to what they say. Make a difference. Non-American citizens can also do their part, in the U.S. and abroad, by challenging beliefs, helping bridge gaps and educate those who don't know, and participating in exchange of all kinds. IVC also has need of you.

The best IVC, in my unhumble opinion, is the one I belong to, the IVC of Philadelphia, www.ivc.org. There are lots of them, but our program is terrific, our results are terrific, our people are terrific.

I have personally attended events and met people from every continent, and greeted them in their native languages. It makes a difference. Say hi to someone from Venezuela, from Cameroon, from Syria and Oman and Yemen and Bahrain and Kazakhstan and Canada and Spain and more. It affects you, sure. But much, much, much more importantly for the U.S. and everyone who lives here, it affects them.

Join us. Welcome them. Make a difference. As Abraham Lincoln is quoted on the front page of Philly's IVC page, "I destroy my enemies by making them my friends."

Don't let Bush be our face to the world. Be a non-ugly American. Help us atone for what he has done in our name, and for what we allowed him to do.

President Bush speaking about the event that Wikipedia seems to have settled on calling the "Virginia Tech Massacre" (as opposed to "Virginia Tech Shootings", see the Talk page for the discussions), called it the worst day of violence on a college campus in American history, a horrible but accurate description.

I am already ready to be done with the conversation about gun control (great idea? or greatest idea? [apologies to S. Colbert]) vs. happy gun ownership (this could have all been prevented, if students were prepared to return fire while in English class. And wouldn't that make the professors more calm, to have lots of armed and surly freshmen in their must-pass class...).

This was not a case of gun control gone bad. This was also not an illegal alien committing a crime; not an act of terrorism in the political sense; not something we should be fearful of at any moment.

This was an act of... wait for it... premeditated murder by a disturbed, isolated individual who may have been looking for an ex-girlfriend, as he walked from room to room.

I have already determined that I will not bother learning the name of the individual to blame. He was a young adult. He was a permanent resident. He had an ethnic origin, like every other American. He had a family, a roommate, occupied a physical space in the world. Now he has marked many others, indelibly, and escaped the consequences forever. Let his name be forgotten, not repeated and repeated.

So the origin of this mayhem and suffering may have been (we'll know more once we watch the movie of the week!) a victim (see his "rambling" suicide notes, and the play he wrote about "Richard McBeefy") turned abuser, unable to cope with feelings other than by acting them out.

Should we be having a conversation, this society, not about bang-bang but about relationships and violence? Or about society or schools making an effort to reach out to the disaffected, the disturbed, the distanced and the deranged?

Meanwhile, I'm done reading the speculations of amateurs, self-promoters, and blameless experts roped in by a scoop-thirsty media. Notify me when the stories of heroism, sacrifice, and giving -- that is, the best of human nature, not the worst -- have finished being vetted, debunked, and verified by witnesses. After, not before, there is some time for them, and us, to heal.

Our thoughts and prayers go out to those affected by this tragedy.

I'm pretty sure that the pervasive criticisms of those members of Congress who suggest that things in Iraq are going quite well, based on their own observations, are actually about nuclear physics.

Even though the Senator from Arizona and the Representative from Indiana, and their aides (who all happen to be Republican, and in favor of the war, politically speaking) saw things with their own eyes, they seem to have come to a conclusion opposite that of the commanders and troops on the ground, most of the reporters who have spent substantial time in Iraq, and virtually everyone who lives there.

How could such disagreement occur?

Well, consider the following:

Delta(x) times Delta(p) is greater than or equal to h divided by 4 times Pi.

That's Heisenberg's uncertainty principle. It says that if you start cranking the Delta (x), which is on the left side of the equation, downwards, then something will have to give. You can't drive it to zero, because then the Delta(p) would have to be infinitely large in order for the principle to remain true.

The smaller the uncertainty in where a quantum particle is, the larger must be the uncertainty in its momentum. Or conversely, if the momentum (and therefore mass and energy) of a quantum particle is known with great exactness, its position becomes as greatly uncertain. There is a lower limit, in the universe, to how certain you can be of both at the same time. By measuring position (precisely), you lose - in fact, destroy - information about its momentum. In taking a reading of momentum you lose all detail about position. It's not because of faulty equipment. It's because of the nature of the teensy little things being studied. Infinitely tiny microscopes (or rather, collision detectors or the like) would not help. The position of the particle IS IN FACT highly uncertain, being a superposition of many states, as a result of its momentum being known.

In the world of politics and war, there's a similar problem. In order for Sen. McCain and Rep. Pence to view that market in Baghdad, they needed to observe it. In observing it, they changed its state.

They were not, as scientists used to pretend in their philosophical constructs, disembodied eyes, observing without being observed or otherwise interfering.

They brought with them, according to the NY Times article today,

more than 100 soldiers in armored Humvees — the equivalent of an entire company — and attack helicopters

as well as having traffic diverted, access restricted, and sharpshooters placed.

Isn't it possible that the Iraq that the honorable gentlemen observed is not in fact the same Iraq that, say, an unarmed civilian without escort might observe? Might not the circumstances of their (heavily armed and closely protected) observation impact what results they saw?

In Iraq, you can be heavily protected and safe, or you can observe reality as it exists in the absence of a company of soldiers with Humvees, plus helicopters and marksmen above. But you can't do both.

To quote another legal epistolary writer (Aaron Streett; the extra T at the end is probably for Terrific), "Greetings, sportsfans!" See here, for the first March issue of his periodic chatty Supreme Court opinion, order and grant roundup. I highly recommend it to all SCOTUS groupies. Prawfsblawg reprints them, but you can get them delivered straight to your inbox by mailing him at the link at the end of that post. Streett, an associate in Baker Botts' Houston office, provides all the inside baseball commentary one could want, in a breezy and entertaining tone. Oh look, there's links to all of them at Baker Botts.

Anyway. Hello to those who enjoy watching athletic events. How's your NCAA tournament treating you? Thought so.

I had an intention to write about Gender and Change in Heinlein's writing. So that'll be my next topic, because I think it's got more juice for me right now than the grim-seeming discussion of war crimes that I had planned. I'd planned to unroll that one in mid-August 2006, and then the topic so disheartened me that I went and did things I felt like doing more instead.

So: forthcoming, a discussion of gender-bending, gender roles, stereotypes, cross-dressing, a bit about sexuality (although that's not the focus), and gender as a mutable characteristic in the works of R. A. Heinlein. Because after all, if I can't write what I feel like, what am I doing out here in the blawgoverse, anyway?

Other posts I'm brewing up: a quick perusal of the controversial No Child Left Behind act, which has been heavily criticized as elevating testing, and particularly apparent improvement in testing, over real education, as well as skewing priorities in educating students - like, how much to test-prep vs. other skills, how much to the bottom quintile vs. the next vs. the next. My favorite example of unhappiness was the NY Times article about an excellent school that had been deemed a failure under NCLB. I might do a more searching review of what's being said about it. Wikipedia now notes in the No Child Left Behind Act article that "a new Congress has already started considering major revisions, as one group of 50 Republican senators and representatives introduced legislation in March 2007 that would provide states much greater freedom from NCLB's controls and punishments." - but as always, trust Wikipedia only so far. How do we KNOW that they introduced such proposed legislation unless we go looking through THOMAS ourselves?

Also, a possible HF post on addiction, and another on wealth and power.

Until next time, that's today's unused & unusable inside baseball! (Again, a tip of the imaginary hat to this guy.)

... and convicts when the case made by the prosecution is "overwhelming" despite having personal sympathy for the defendant. See NYT, March 7, 2007, "Libby Guilty of Lying in C.I.A. Leak Case," Neil Lewis.

One of the 11 jurors who spoke publicly after the verdict said that there was great sympathy for Mr. Libby in the jury room, but that the case presented by the prosecution was overwhelming.

Of course, the line "The verdict meant the end of a nearly four-year investigation into the leak of the identity of the Central Intelligence Agency officer" was quite incorrect. The case isn't even over. The jury's duty has been completed, but as the article makes clear, the action continues.

Counsel for the defendant will file post-trial motions to grant a new trial, and will seek appellate relief when that fails (as is likely). Before that, the sentence needs to be handed down, on June 5. The article quotes uninvolved experts as estimating a Guidelines sentence of 20-27 months, but of course in the brave new post-Booker world, the Federal Sentencing Guidelines are advisory, not mandatory. A departure (upwards or downwards) does not have to be justified by extraordinary circumstances. However, most Circuit Courts of Appeal have been far more willing to approve upward departures than downward departures, looking at the latter with great skepticism and reversing such sentences, stating that the sentencing judges did not give adequate reasons for the departure. Upward departures, meanwhile, are routinely approved as being reasonable. Doug Berman of Sentencing Law Prof has done so much good work on the issue that it's unnecessary to marshal up the evidence on one's own. See, for example, this post, in which he notes the Fourt Circuit's reversal of an upward departure:

"This is a noteworthy event in part because it is a rare event," Berman posts.

And for his useful collection of links of interest on those who wish to handicap the Libby sentencing, see here, with "On to Sentencing, Scooter!".

I'm not interested in gloating over Libby's downfall, but I do feel some satisfaction that a felony conviction came out of this investigation into one of the more public and shameful examples of treasonous politics ("So Novak's Talking: Thoughts on the Plame Mess" posted here on 8/1/05) in recent history.

Un-American anti-libertarians make me so mad I could spit.

Gakked (link goes to defn.) from Howard Bashman's invaluable How Appealing:

"The New Detainee Law Does Not Deny Habeas Corpus; Fear not, New York Times, al Qaeda's lawfare rights are still intact": Andrew C. McCarthy has this essay today at National Review Online.

(permalink to HB's post here)

Now, the NRO is not where I go for advanced and reasoned opinionating. National Review Online is what we in the field might call "biased."

What's wrong with the hed on the above-mentioned bit? Well, he uses the word "lawfare." Much like "tort reform," this label obscures an agenda. Tort reform is a wonderful idea; I favor making it harder for frivolous defenses in class action suits to escape sanctions, including dismissal of defenses and directed verdicts for plaintiffs. I also acknowledge that the American rule (no costs shifted to loser) is sometimes flawed. I also dislike it when bad science is the basis for a decision, likewise bad economics, bad law, etc. I just see things from a different view, because my cases are just, etc. etc.

Lawfare means, and here I am being generous, the unethical and immoral use of bedrock American traditional rights to prevent the government from doing what the hell it feels like.

If this be treason, make the most of it.

I am offended by the term lawfare. Lawsuits are NOT a continuation of war by other means. Lawsuits are a way of resolving disputes. Some disputes are false; that's why we call some people "IP trolls" and refer with disdain to frivolous frequent filers. (Say that three times fast.)

But habeas? And where the heck did "Al Qaeda" come in here? If the prisoner was admittedly Al Qaeda, wouldn't things be different? Or adjudicated to be? Or had a trial?

Instead, this NRO headline implies heavily - and I'm so disgusted I don't even want to read the anti-freedom drivel surely contained at the other end of the link, but I probably will, just to see where he's going - that you don't need to find out the truth, in order to figure out if someone is guilty.

The new detainee law does certainly attempt to infringe habeas rights. I mean, that's the point. See this post at Balkinblog, er, Balkinization. It would be unconstitutional if it did that improperly - check your Constitution, article I, section 9:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Now, if I can't prove I'm not Al Qaeda, as by seeking habeas relief, what's to stop governmental overreaching from plucking me, an Americna citizen, out of my life, putting me in jail, and denying me a lawyer and a trial?

If I'm not a terrorist, how can you defend imprisoning me without a trial? And if I won't ever get the opportunity to clear myself, how do you know I really am Al Qaeda?

In other words: bah.

On the plus side, this rant has cheered me up. Take that, depressing anti-libertarians.

(Followup: after briefly perusing the post, I note that the author is just flatly, plainly wrong. Constitutional limits don't give rights to citizens vs. non-citizens. They are limits on the powers of Congress, and of the government. Suspending habeas corpus unlawfully is beyond Congress' powers. Full stop.

Other things he gets wrong: Congress did not give the detainees habeas rights, and yes it does matter what they're called. Which rights attach to the review tribunals (NEVER trials) which might be a detainee's only hope of escaping possibly wrongful detention (as in, he's not a terrorist. Not at all, never was, wrong guy)? And who gets them? Because most of the detainees, despite years in custody, have not gotten trials, and are not scheduled to. Hundreds of people - and more to come?)

Popping my head up. Several thoughts.

Happy New Year to those who celebrate starting tonight.

The new Heinlein/Spider Robinson collaboration is great. I'll have a review up shortly.

Heinlein Friday was driving me to distraction. For my own good, I'm suspending the practice, and substituting it with a new programme, tentatively entitled, "Post when you have something to say."

Linkage continues apace at my beloved Del.Icio.Us page, findable by typing http and then :// and then del.icio.us and then /eh_nonymous and then hitting enter, or touching return. Please do check it out - new (and old) links, webpages, and blogs appear there all the time.

Posner's a sneaky, sneaky debater. Check out this paragraph:

Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration. Maybe David Hume went too far (though I don’t think so) when he said that “The safety of the people is the supreme law. All other particular laws are subordinate to it, and dependent on it.” But I am not prepared to die at the hands of terrorists in order to defend the Miranda rule, or Brady, or Burton, or Mapp, or Doyle, or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

What's wrong with Posner's screed? Well, he's telling Geoff Stone (in a debate about "Not a Suicide Pact," his new book) that we mustn't be so fuzzy and abstract, putting a thumb on the scales of decision, and preferring civil liberties over other values.

In other words, you can't assume that privacy or individual rights or civil rights are of more value than something else, until you compare them.

Then Posner spins, spins, spins. He writes that he would rather be searched at random without a warrant than be killed by terrorists.

Well! Shut my mouth! Of course, I was thinking the exact opposite, that I'd prefer to die than have my liberties infringed!

Posner's disingenuous to write this sentence, because he's making a number of logical fallacies and he should by gum know it.

Appeal to emotion.
Red herring.
False choice.
Grave consequences unless you agree with him.

I know, I know, he keeps arguing, that's just the setup.

But he's still spinning, and increasingly wildly. Why not assume that violating my Miranda, Brady, Mapp, or other rights will *not necessarily* be more likely to preserve my life, unless there's some evidence for it? Instead, Posner assumes, as a default, that every limitation on freedom, liberty, and individual rights will result in greater safety. If safety is an overarching value, as he says, then the inquiry is over.

He is putting a rabbit in the hat. The rabbit is that safety always trumps. This is precisely the kind of failure to reason and pragmatically compare which he accuses Stone of. Consider Kip's vitriolic (and entirely deserved) scorn directed at subway searches in New York City, as presently laid out. We lose freedoms; we gain nothing. There is NO POSSIBILITY that those (ought to be unconstitutional) searches can deter, vex, or obstruct terrorists. There's no barrier. There's no benefit - and when there's no benefit, it's hard to do a CBA (cost-benefit analysis) that concludes anything other than the practice is a waste of time.

See Kip's posts here: Circuit Court upholds worthless subway searches and the linked posts at the bottom.

I'd have more scornful things to say about Posner, but others are doing a fine job. He's a shrieking hysteric, and it's disturbing that he's prejudging outrageous actions to be fine and dandy - as a legal and as a pragmatic matter - in the fight against terror.

Consider his hypothetical example of assigning an FBI agent to follow each and every Muslim, on foot. I wonder, though, why that would provide any benefit, as some terrorists are not Muslim. Better, perhaps, if he recommends a policeman stand behind each of us, with a loaded gun. That might achieve his desired goals better. But he is just mentioning it to show that it would be legally unproblematic.

Of course it might be, you ninny, if you formulate it wrong - care to ask a civil libertarian if it's unproblematic? The problem's not whether a particular right is violated, although that's there too, potentially. It's that it would be completely useless, and thus not even bear a rational relationship to the goal to be achieved, viz greater safety. Argh!

I'm still on informal blog hiatus, but this day deserves recognition. NOT Sept. 11. Everyone who remembers that day will bear the scars, and the memory.

I don't memorialize bad days. I recall them, and try to move forward. While I understand the impulse to lionize heroics, 9/11 is not the day we need to keep always before our eyes. Nor is 9/10.

The day that matters most is today, September 12th, the anniversary of The Day After.

Today is when we woke up, those of us who got to sleep, and saw dawn. It was not over, not for the bereaved and the terrified, the trapped and the toiling. But for the country, it was the first day after The Day.

Nine One Two is the day we had to struggle with the day that had passed, and think about the days to come.

Depression struck me on 9/12, when the shock wore off. Fear, for myself and my family and my country and everyone (when I had time to think that large) was a dominant emotion. Meanwhile, I kept breathing, kept living, kept doing what I was doing. That week, it was the first semester of law school. Tuesday was a bad day. Enough said, and enough will be said, and has been said, written, televised, and trumpeted on CNN.com. Enough about 9/11.

Let's talk about 9/12, and everything we started to know then.

Blogging goes through periods of varying frequencies, as with most aspects of life.

Sometimes, I post with a frequency which indicates a vast surplus of available time, available mental energy, or both.

Occasionally, as this month, my own self-imposed goals (weekly postings on Friday, at a minimum) aren't met because other rhythms have disrupted the schedule.

My vacation from Heinlein Friday will continue for another week, but its long-term status as a permanent weekly commitment is in doubt. I have more to write, but the very decision to start so huge a project as the Law of War post, which produced dozens and dozens of paragraphs with inadequate planning on how to tame them, has placed an unfortunate obstacle in the path of continued easy posts.

I may want to withdraw it, and prepare a more modest HF post. It wouldn't be the first time I've done this: my last major blawgging project was to be a Scalia Mega-Post, in which I dealt with each and every things about Scalia's jurisprudence (and personal style, and irritating statements) which annoyed or frustrated or infuriated or troubled me. As it turns out, that kind of project involves more than just brainstorming, writing, and collecting links.

To take on a really massive writing project, there needs to be some thoughtful editing, at the planning stage. What gets in, and what is excluded? What's the right order? How does one section relate to another?

I've seldom constructed such open-ended writing projects, and when I have, failure to adequately edit my own structure has been at least as big a problem as inability to find words.

I'm also better at starting projects than finishing them, but of course it's easy to finish a task when you can see its goal clearly and therefore understand the nature of the work that will accomplish it.

Writing a brief is easy by comparison. It's got to have the requisite pieces, to comply with the Federal Rules or local practice or the judge's orders. There's only one way to organize it - the right way, with first things first, all the necessary prefatory and preparatory announcements (introduction, statement of jurisdiction, statutes involved, etc.). A motion for class certification has a form that's virtually pre-ordained, just because it has to comply with Rule 23, or its state law equivalent - see the discussion in this long-ago post. August 5, 2005? It's been a while.

===================

What else is on my mind?

I try not to journal too much, this being a Blawg and all, but it's so pleasant to write down observations and get them out of the mental buffer. Nobody has to spend time reading about what my cat did today (she's nonexistent, so pretty much the same things she does every day, or rather doesn't do, or perhaps even doesn't not do). But some observations are worthwhilier than others.

Philadelphia's weather has turned distinctly dismal. Temps in the 80s or above (with miserably high humidity) have been replaced by highs in the low 70s, with a distinct overcast. Summer's over. The season has changed, and we can look forward to months of complaining and wishing it was unpleasantly hot again.

Politics in Philly is about to get increasingly unavoidable. I haven't heard from the Lynn Swann candidacy lately, but I assume he's still running against incumbent Governor Ed Rendell (who is married to Third Circuit Judge Midge - er, Marjorie O. Rendell). I haven't seen any lying commercials from Santorum lately - although I hear there's an accurate one going around about how often his Democratic opponent, Bob Casey, Jr., has sought different offices. Well played, Santorum campaign. Keep trying to distract us from the issues of character, philosophy, politics, trust, and substantive issues.

Philly car share, I can now report, is a lovely thing. It may not be competitive with Zip Cars or the other nationwide car-sharing programs. PCS is a nonprofit which (presumably for good and valid and insurance-related reasons) can't let you take one of their cars into D.C. or New York or Baltimore or otherwise outside the Area. But, I think it does finally eliminate the need of many students, many professionals, and most city-dwellers to actually buy, own, maintain, gas, insure, and find permanent parking for their vehicles. Google them if you're in Philly and haven't already considered joining. Many have - and many have sold their cars and finally rid themselves of that albatross, car ownership.

That reminds me, I can buy a new transpass today - why not be able to ride any bus OR check out a car with an hour's notice? It's affordable, as owning and insuring a car in the city isn't.

Life beckons, much as it intruded last week. Off I go, to face another long, dreary, wearying Friday, followed immediately by a three day weekend and then a four day week. Wait, that's not too cumbersome after all.

Posting will resume on or after the weekend.

To my disappointment, the Heinlein Friday for this Friday wasn't done yet - not even half done yet, which would have let me post Part 1, to be followed next Friday by part 2.

So, mea culpa, and let me just leave a few good links here as a taste of what I'm going for. The real HF will be posted... but not before midnight. Maybe not even before next Wednesday. :)

• Wikipedia "Laws of War"


• Fred (Slacktivist) on "You're Not Allowed to Kill Civilians"
  
  
  
  • the Title post
  
  
  • YNATKC continued (for those who didn't get the message after part 1)
  
  
  • Nagasaki - for those still unclear on the concept
  
  
  • Perverse Arithmetic - for those who eagerly look for permission from the prohibition
  
  
  • Terrorists are Bad - for those eager to hide behind labels, particularly when they are unfamiliar with history, war, or both
  
  


• Some links at my del.icio.us page on the Global War on Terror, starting at p.2, which includes some goodies. Of note: Neat Katyal's plea to finally start where we should have, and try courts-martialing detainees; Fafblog's biting satirical comment on the coordinated suicide of three Guantanamo detainees "6/10 changed everything!"; a guest post at Concurring Opinions about how a law clerk grew up, got appointed to the Supreme Court, and turned his former judge's great dissent into the law of the land, eviscerating a terrible precedent, in "Who's the Greatest Law Clerk Ever?" (referring to the recent Hamdan decision).


• The first page of same, which includes the intriguing comment by Prof. Gerber at Intel Dump that perhaps not trying detainees at all would be the right way to go. Why go with kangaroo courts, when you can just decline to try (or punish) them at all? I need to review this, see what he's basing his argument on.

There's lots to say - including about ongoing events, including political ones such as the defeat in Connecticut of a certain formerly Democratic Senator by Democratic nominee Ned Lamont, a rich progressive liberal who won because the primary voters were sick and tired of the incumbent's refusal to vote or talk like a Democrat on a wide range of issues. The first and foremost being the need to show skepticism towards whether the Administration should be credited with competence and good will in the war in Iraq, neither of which it has actually demonstrated. And, of course, the War In Iraq (is it Civil yet? Is it Accomplished yet?) is not really a front in the GWOT - until our leaders turned it into one. "Come on," he taunted.

The Vice President talks as if Iraq were part of the War on Terror. The Senator (soon to be former Senator) talks as if "terrorists" (meaning guerilla warriors, or meaning terrorists? Does he even know?) will take heart if we stop fighting the wrong war and begin fighting the right ones. Both ignore the reality that Saddam was not behind 9/11. Saddam cheered when Americans bled, but that's not enough; many of our enemies did. Anarchist fanatical theocrats have remarkably little in common with westernized despotic secular tyrants. And just where did Saddam purchase that poison gas he used on the Kurds?

Much, much more when I get around to it.

I preempt (preemptively!) this week's Heinlein Friday, the recurring examination of the fiction of Robert Heinlein through a legal lens, to bring you...

Speech Report Thursday! Okay, that's a weak title. Let's just call it Heinlein Friday on Thursday (HF on Thu).

The reason for this unusual (and heretofore unprecedented) interruption in the Normal Series of Things is that I bring you a firsthand report on a speech by famed ("conservative, Republican, Bush-appointee") U.S. District Court Judge John E. Jones III, of the Middle District of Pennsylvania, known far and wide as the "Intelligent Design Judge," because of his role in overseeing the bench trial (no jury) of the Katzmiller v. Dover Area School District case.

If you need background, the Wikipedia page on Katzmiller should have all you'd ever need. I mean, it is extensive. Readable, too.

Why is Judge Jones now a touring celebrity? In part, it's because of the enemies he has made - and what he has chosen to do about it. And that will, in due course, bring us full circle, to my reason for making this Speech Report a HF on Thurs.

Judge Jones' speech

Site: Conference Center, the Wanamaker Building (Emporis link, images, the Man Himself, John Wanamaker)
Invitation from: Judge Denis P. Cohen (although he says the idea originated with his co-chair) of the Professional Responsibility Committee of the Philadelphia Bar Association.
Date and time: Wednesday, July 19th, at lunchtime.

Subject (as freely interpreted by me): The Role of Judges (and why Civic Education in this country needs help)

His honor thanked us for our welcome, and hoped he would give us some food for thought. He opened with a brief description of his recent (and evanescent) fame. He has received at least one death threat, as Judge Cohen noted in his introduction, but has also been receiving wide recognition and a great opportunity to speak about the topics of his speech. He disclaimed any intention of engaging in post-hoc analysis of
- the trial
- Intelligent Design, or
- his opinion

all of which he believes speak essentially for themselves.

He did noted in good humor that although judges mainly seek to be affirmed on appeal, should it come to that, he's one of the few judges whose trial opinions have been affirmed... by the Vatican. [See, e.g., MayerBlog, here: "Significantly, even the Vatican – whose hostility to science when it appears to conflict with religious dogma is well-known in Western history (consider, for example, the prosecution of Galileo by the Inquisition, for his 'heresies') – has recently recognized that intelligent design is not a science."]

Judge Jones issued a call to arms. He asked that judges, and lawyers, step up. The public level of understanding of basic civics, of the structure and nature of government in this country, of the purpose and practice of law and judging, is abysmal - and I'm not going to argue. A recent poll (avoid recent polls!) said that nearly 3/4ths of a recent sampling of 100,000 high school students had either no opinion regarding, or took for granted, their First Amendment rights.

That's bad, no matter how invalid the actual result might be. The fact remains that there's anyone out there who isn't exercised about the idea that the First Amendment is constantly under siege; that the powerful seek to stifle the voice of the powerless; that newspapers exist not at the suffrance but despite the active antagonism of monied and politically powerful interests (although they are themselves monied and powerful...).

Judge Jones's point is that we don't know what our liberties are, nor why they should be that way.

Judge Jones also cited the reaction of the punditry to his case. They're entitled to free speech, he argued, but in the absence of adequate education in civics and theory of government, the public is liable to be "whipsawed" - and whipped into a frenzy by people of ill will.

And what about those ill-willers?

Judge Jones noted what an honor it was to be called "fascist" by Bill O'Reilly; to be deemed "arrogant" by the Reverend, Pat Robertson; and to be described as "sticking a knife in the back" of those that brung him to the dance, by one Phyllis Schlafly.
His Honor also commented at some length about the abominable Ann Coulter's abominable new book, in which she takes time out, not to excoriate the law of the Katzmiller decision, but to engage in a prolonged ad hominem attack on those who support the result and on the Judge who penned it. He noted that she (accusations paraphrased, since it's my recollection of his quotation or perhaps paraphrase)

• called him a 'hack judge'


• called him a bastard Joe Wilson who merely "hasn't posed in a Jaguar outside the White House" - yet


• accused him of being as good an expert on the requirements of the First Amendment as Harriet Myers
  

(Bravo, Ann, bravo. You failed to mention the Lemon test (I'm sure you hate it, your idol Scalia hates it too), or the endorsement test (that awful Woman, Sandra Day O'Connor invented it - too bad she's more famous, wise, and beloved than you - I hope her next book does better than yours, as well), which are the governing tests that a judge must use, or be reversed, when analyzing a claim under the establishment clause of the First Amendment. You also lowered the discourse, Ann. Way to go. Twit. Well, I've already mentioned Ann in HF before. Twice. That's quite enough about her.)

Judge Jones argued on three interrelated themes

- Judges perform their duties in a "workmanlike" way (with a hattip to Judge M. Rendell (3d Cir.) who used the word as well)
- Judges are bound by precedent, must obey the rule of law, and do not do their jobs in an ad-hoc fashion, constrained only by their own wishes, and by putting a finger to the wind of public opinion to see which way it blows
- Better education, of the public and the media, would help preserve judicial independence and respect for the rule of law. Here, the comment was that we (as the legal profession) should put a face on the Judiciary, and answer critics.

On the education front, as noted above, he emphasized civics. He called for better government classes. And he noted that history is important; although the public is "yearning" to have a reasoned public debate, they are too likely to believe the last hysterical pundit they heard. "Civic Stupidity" is a term he used.

And that, finally, brings us to Heinlein.

Judge Jones noted that if you don't know your history, "You're gonna get rolled."

This echoed Heinlein's statement about knowledge.

The three-legged stool of understanding is held up by history, languages, and mathematics. Equipped with these three you can learn anything you want to learn. But if you lack any one of them you are just another ignorant peasant with dung on your boots.

That is, if you can't count (or do some serious math), you have to take things on faith. If you don't speak the language, you're a provincial ignoramus who doesn't even know their own language, let alone what almost everyone else speaks (that is, "something else"). And if you don't know history, it's not just that you are bound to repeat it; you are doomed to fail to learn from the grand mistakes of the past.

You are doomed to be historyless - to lack identity, self-knowledge, a basic understanding of what even is. If you don't know when World War II was, give or take, how can you understand what Germany is like, and why Japanese-U.S. relations are the way they are, and why we are scared of WMDs? You can't pick this stuff up by watching all-news networks. You have to actually study, read, or learn things.

Same with math, and with languages. Translations aren't enough. If you can't even figure out how your taxes are calculated, you're going to get rolled. If you take their word for it that the scary foreign leader is saying "We will bury you!" rather than what he actually was implying ("We will outlast you!"). Math and foreign languages are the way you interact with the real world. History is the context into which all facts must fit - because if it's not accurate history, it's not about the real world, about the facts. It may be important - may be culture, society, shared beliefs, faith, morality, or an entertaining story (Superman!), but it's not history.

So Judge Jones, like the Dean of SF / Grandmaster himself, is urging us to Do Something - fight back ignorance. Encourage civic understanding. If you're a lawyer, go into a classroom. If you're a judge and your ruling (or integrity, or impartiality) are questioned and there's a teachable moment, don't remain silent.

The Old Way, Judge Jones said, was that judges would issue their opinions and then "batten down the hatches," and wait for it to be over. Jones, while denying he makes his decisions with that finger in the air, is a consumer of the media. And as such, he wants to fight the impulse. When you have an impulse to speak up, he suggests, speak up. Speak out. Within the confines of ethical rules for judges, take a stand against the pervasive, and perverse, rantings of the punditry. "We did not check *all* our First Amendment rights at the chamber door" when we became judges, he notes, paraphrasing the language from - is it Tinker, or Hazelwood? Too tired to remember. Hopefully one of those pages says.

And since he has a bully pulpit, he is taking a stand against the "deliberate inaccuracies," "cartoonish" and "outlandish" portrayals of law by Ann Coulter and others, foisted on an uninformed, ill-educated public.

Two last notes on his speech:

Judge Jones says his greatest regret about the trial is not allowing cameras in the courtroom - because the lawyering was so superb, so unparalleled, and you can't just tell someone to read about the case - "you had to be there." It would have been an outstanding civics lesson, he believes.

And, he favors civility between lawyers. The "knife fights over discovery," and "flaming arrows back and forth," he treats as he would a childish tantrum. A time out, and zero tolerance.

And that's it for Heinlein (Thursday)! Stop back next week, when we return to our regularly scheduled examination of science fiction.

Just like last week ("Pending Post: Heinlein Friday & Superman"), I'm choosing not to publish this week's HF before I head off to work in the morning. But, here's a preview.

I've been talking about "Jerry Was a Man" for the last three weeks, in the Superman, Aliens / Combatants, and Courts posts. That story's time has come, its day in the sun is here.

(Hey, why not? After all, It's Always Sunny In Philadelphia....) (FX official site; Wikipedia entry). [That new tv show, by the way,


Right, end of digression. Oops, just one more: anybody heard anything good about Pirates of the Caribbean: Dead Man's Chest? I did so like Jack Sparrow (channeled portrayed - or is it perpetrated? - ably by Johnny Depp, one of my handful of favorite male actors) but the current movie's getting mediocre reviews at best, unlike its predecessor. So many p's.

Back to the subject: HF

Last week's HF had me looking outside of Heinlein's work to shed light on what he was doing, and whether it was successful. This week, I'm back to focusing on his writing as my main source material. "Jerry Was a Man" is a 1947 short story, collected in Assignment In Eternity, and although there are some (to me, today) inexplicable words or phrases, most of the story has aged quite well in 53 years. It's timely, even, in part. But if the racial and sexual politics (and sensibilities) have changed, have the scientific ones? Maybe. Possibly not. We have 50 more years of genetic modification, of experience with the nuclear age [if it's proper to describe the End of Innocence as if it were an Age, of Steam or of Information (aside - which last we are assuredly in, even as most new American jobs continue to be in the service industries, and the professions, rather than in dealing with "pure" information)... nested parenthesis problem... perhaps a ']' would help. ]. The world is older and not necessarily wiser. People are much the same. And Jerry? Is he a Man? We'll open it up, later today. You have about 10 hours to submit comments or questions, and then the post is up. Of course, since it's a blog, unlike a newspaper, I can then make corrections/ additions/ emendations to the piece - that's why I consider every post to be New, for purposes of discussion. Heinlein doesn't go stale - or any staler than he already is.

So if you see anything in any of the HF series (full list at the bottom of any HF post), leave a comment (until the comment period expires - and I may extend them) or drop an e-mail. This is my forum, and I'm inviting your reactions.

Next topic: the 2006 FIFA World Cup in Germany

The greatest single-sport athletic event the world has to offer is nearly at an end, to return in another four years. Several countries have distinguished themselves. A greater number did not. A few embarassed themselves - or were humiliated by others. Brazil, which had so effortlessly cruised over lesser teams, bowed out ignominiously, not even making it to the semifinals. Finishing below the top four, when you are defending champs (2002, hosted in Korean/Japan) and have won outright many times, is a major fall.

The last non-Brazil winner, France, won in 1998, and will be playing in the finals this Sunday, at 1:30 p.m. eastern time, against Italy, which has a long history with the finals. I remember watching Baggio in 1994, when Italy last made it to the finals, losing on penalty kicks. A sad end, and not the best way to decide a soccer game, if I had it to design over again. I stopped watching games in this tournament when they went to PKs. That's why I was so glad Italy beat Germany in the final seconds - scoring twice at the end of the second period of (non-sudden death, aka "No Golden Goal") overtime, in the 119th minute overall, and at 120 + 1 minute of injury time, only a minute or so before the final whistle.

I'd have loved to see a German home final. I'd also have loved to see Portugal (an underdog favorite for me since their defeat of Mexico in the opening round) in the final, but it was not to be; they had opportunities but could not convert. For that matter, a Germany/ Argentina final would have given me a chance to make lots of Fascist jokes, which would apparently get me arrested in Germany. Freedom and democracy, at the cost of limited freedom of speech. A suspicious proposition, in my view. Portugal/ Brazil, had it happened, would have been a "former colony/ former colonialist" match, and would also have been an opportunity for interesting social commentary beyond the match itself.

The Third Place match, between the losers of the semifinal matches, will be played by Germany and Portugal at 3 pm EDT on July 8th, tomorrow, Saturday.

Next World Cup, in South Africa, we'll see who has stepped up and who can't handle the stiff competition.

As a side note, Jots seems to be performing quite poorly. I may have to migrate from Jots to del.icio.us, which has an inferior interface (but if it works, that's necessarily a better interface), or switch to something else entirely. BlogSpot has a Blog post feature; I may check that out. (Free *is* a good price). Or I may try Tags.

And that's all, until later today.

Try the new & improved, fresh and exciting taste sensation that's sweeping the nation, ever so refreshing, Skeptic's Circle! It's hosted at SkepticRant by LBBP (motto: "a man without GOD is like a fish without a bicycle" - that's harsh stuff, LBBP, but amusing).

Visit the 38th Skeptics' Circle, aka "Thirsty for truth? Try Skeptic Cola!" The post is helpfully tagged, cross-referenced, and easy-to-use: it's in bins, with witty names like "Creationist Tonic," "Alt History fusion," and "Scam Sipper." Recommended - but then, most of the Skeptics' Circles are recommended. Let's say, "especially recommended."

Read the whole thing.

And previously, the 37th Skeptics' Circle: From somewhere within the Bermuda Triangle.

Happy holiday weekend - this one's pretty special for us residents of Philadelphia. Saturday is July 1st (watch out for rising interest rates!) and Sunday is July 2nd, 2006 - the anniversary of the 1776 signing of the Declaration of Independence, 230 years ago this week, at Independence Hall at 5th and Chestnut Streets. The delayed announcement two days later gave many of the signatories time to travel to their home states in time for the Fourth, which is the Declaration's official date.

Before I launch into this week's Heinlein Friday (previewed here), let's quickly review what has gone before.

• Last week was Aliens, Combatants, and the Other.


• The week before, I presented Getting to Justice.


• The second substantive HF was Lawyers Beyond Stereotypes.


• The first HF post was on Courts.


• And, of course, there was the post when I announced the idea in the first place.

Many of these posts have been rather diffuse, as far as talking about any individual Heinlein work; usually I discuss at least three, and sometimes half a dozen different books or short stories.

This isn't the only way to do it - rather than talking about a common theme or a recurring feature, I could be doing in-depth book analyses or reviews. I plan to do at least one rather less superficial post on a single story, "Jerry Was a Man," as I mentioned last week and once before that. We'll let that wait for at least another week, though.

Now: on to Superman!

HF: Science in Superman?

What do I mean by that? Well, now that I think about it, this whole Heinlein Friday project begs the question: is looking for Law in Heinlein like seeking science in the Superman comic books or movies? Am I looking for Law in all the wrong places?

I think I'm not, just as there's some science in Superman - even if it is super-science. Where some comic books are pure fantasy, both X-Men and Superman have a veneer of science - the word "mutation" in the case of the former, and the extraterrestrial origin and explanation for Superman and his powers in the latter. Still, it's mostly surface, not real science.

Superman Returns is a wonderful movie. I'll put my overall comments in hidden text for those who want to avoid detailed reviews, but first I'll urge all of you who like That Kind of Thing to go see it. (some spoilerish reviews)


How's the science? Well, like Spider-Man 2, both movies contain a fantastic image of the sun - for SM2, in the depiction of the "fusion reaction" which Doc Ock has created, and for Superman Returns, when depicting the death of the planet Krypton. I presume both derive directly from SOHO images - check out the Image search results, but the links are great too.

Neither movie is about fusion or about stellar evolution, though.

One movie (Spider-Man) nominally is about mutation. I'll let that one go - the idea that being bitten by something radioactive can alter your DNA is ridiculous enough, but far enough beyond my competence, that I'll just note that it's not exactly scientific. Pseudo-scientific, perhaps.

Superman, as we all presumably know, isn't just Super-strong, Super-fast, and Super-good-looking. He can actually defy gravity - float in midair, fly faster than the speed of sound - indeed, perhaps fly "nearly as fast as the speed of light." He's practically magical. As I said before, super-science.

Is it a waste of time to look for Science in Superman?

I'd say no, it's not a waste. The physics of Superman are amazing. Eye-popping. Watch for the scene involving the next generation space shuttle - a timely feature, considering that countdown is ongoing for Shuttle Discovery's planned launch on Saturday! Check out the news for the latest. See also spaceflight dot nasa dot gov. As longtime readers know, I'm way excited about human spaceflight.

What's the movie got? Flying, with mass and momentum. When Superman flies fast, he's not just floating as if on a magic carpet, he's moving fast - but he is invulnerable. He can fly through buildings - but he's not omnipotent. When he saves someone's life, he has to take care not to injure them. The magnificent rescue scene involves a real flight emergency, with metal that shears, dangerous fires, acceleration forces, and a very scary ride for those lucky enough to be saved. It feels *real,* a touchstone for good physics in special-effects design, and in Superman, to quote the show Seinfeld from a rather different context, "They're real, and they're spectacular." - Sidra Holland, "The Implant." [Sidra, of course, was played by Teri Hatcher, who co-starred on the t.v. show Lois & Clark as Lois Lane, alongside Dean Cain.]

By the way, what's bad about Superman? Well, the law is terrible.

Law in Superman

What's wrong with movies nowadays? Why do they have to get basic legal stuff so badly wrong?

Lex Luthor is free in the movie, out of jail despite Superman's prior efforts to put him away. Why's he out? Because, quote, "the appellate court called Superman as a witness, and he didn't show up." Do I even have to point out how poor that law-writing is? I don't insist that they get relativity right (Superman was traveling for 5 years, ages along with the rest of the planet, but has gone light-years? Let it pass, let it pass), or anything tricky, but that's just nonsensical. If there was a retrial ordered, then Superman's absence would not set Luthor free. It would just require that his prior testimony be brought in some other way. In any case, there would have been so much evidence from other sources that the idea that Lex was out because Superman wasn't around is ludicrous.

Next, (spoiler warning)


What's the connection to Heinlein?

Is Heinlein a comic book? Is he just telling a socko adventure story, and the law's a sideshow? As I think I've been showing in these posts, sometimes the law is itself the point.

Heinlein traded in ideas, at least as much as in adventure per se. His starting point was "What if...?", and one of the ways to play with ideas is to imagine the legal system under a new strain, either technological or otherwise.

What if aliens were the subject of a lawsuit? What if there was new truth-determining technology in court? What if there was a different set of laws, morals, or customs in play?

Looking for Law in Heinlein, then, is like looking for the science in Superman - it's not the main point, but it's a rich source of teachable moments.

Heinlein was often showing law in operation, rather than telling us how law works - and the difference was that you sometimes had to work as a reader, actively turning dialogue by characters not necessarily interested in lecturing into a meaningful picture of what the society depicted is like. As prior posts have shown, some of the legal stuff is shallow or perfunctory. Other bits, however, have insightful or provocative views of and proposals for the law, usually told in an interesting and plot-relevant way. But watch out for For Us, the Living - it doesn't get more didactic and less interesting than that. I mean, you'd have to look to Ayn Rand to find writing as wooden and poorly executed.

Heinlein and movies

A brief note about Heinlein's work in the medium of film: Heinlein was the source of material for three distinct movies (or movie franchises).




Thanks for stopping by. Next week: TBD. Reader feedback, not to mention input on future topics, is welcomed.

For those who like this sort of thing (and I certainly do, see this old post at my former address):

The GU LC Supreme Court Institute's Final Report OT (October Term) 2005 has been released, and is available here (pDF, via SCOTUSblog).

I note that the statistics are not completely and utterly accurate; they list 0 Summary Affirmances without argument, when in fact on the final day of orders, there was at least one. Not that these affect the statistics.

Also (see p.8, or 6 of the document) the Ninth Circuit was far from the worst in terms of batting average.

The First, Third, Seventh, D.C. and Federal Circuit Courts of Appeals had a perfect .000 average, receiving zero affirmances, and some non-zero number of opinions vacated or reversed. None of those, however, received as many as four grants this term, and thus their low success rate (zero!) is understandable.

The Second Circuit, with 9 grants of which only one was an affirmance, appears to have done the most poorly.

The Ninth, with 15 grants (more than any other federal Circuit Court of Appeals) and only two affirmances, appears to have done second-worst. Again, this is not a reflection of quality of judging. It reflects primarily:

1. the sheer number of cases decided;


2. the cutting-edge nature of legal claims brought in the jurisdictions at issue (including New York and Los Angeles respectively for 2nd and Ninth Cir.s); and


3. the fact that most cases taken are not affirmed.

Also, Alito is not another (or a "Little") Scalia. He is almost worse. He is another (or a "Little") Roberts. Roberts created a quite unified, occasionally narrow court, more so than his predecessor. However, when the Roberts Court goes bad, it goes quite bad - Alito and Roberts, voting together, have helped accomplish some major harm on behalf of institutional, governmental, and conservative interests, at the cost of individual, criminal-defendant, and liberal interests.

Contrariwise, Roberts, sometimes with Alito, has at times helped accomplish some major renovations on other areas of law which have helped create areas of hope or at least clarity (less confusion) in ways that help individuals, criminal defendants, and some liberals, often coming at the costs of large institutions, the government, and conservative interests. So neither is really a naked partisan. They are both, however, conservative justices - not in the sense of limited-scope. In the sense of conservative-favoring-outcomes. This is due, as I think I've indicated, not to pure conservative bias in judging, but due to their ideological and methodogical biases. Your method of interpretation, and approach when considering a controversial issue, is often outcome-influencing.

Meanwhile, Justice Stevens issued the biggest blockbuster of the Term, with Hamdan, which presents either a major setback for the Administration, a blow against freedom in the Global War on Terror (GWoT), or some other possibility. Me, I buy the President's statement ("Bad people are not going to be let loose on the street") and discount the view that there will be no effect on Guantanamo or on the American prosecution of the GWoT.

Also, this is hilarious (Judging Crimes blog, "Does Scalia Believe in Anything?").

And that's the Word.

Via the NYT, "Canada to unveil details of alleged terrorist ring," I found the following admirable comment by a prosecutor assistant commissioner of the RCMP, Mike McDonell, who

told Reuters it would be up to the court to decide whether to impose a gag order that would sharply restrict what the media can say about the charges.

``For a lot of the information, we prefer to introduce it through the courts in the first instance so that we're not prejudicing anyone's chances for a fair trial. If the court says we're free to talk, I'll be talking,'' he said.

Now, I don't usually talk up Canada, but in this case, good on them. I like the whole "catching terrorists before a building blows up" thing - that's good, very nice. Second, I like the whole idea of charging them with crimes. As opposed to, you know, simply kidnapping suspects and holding them without charges, in violation of the entire American Way of Doing Things.

Now, given that they identified these terrorists (who were practicing with their weapons at night and taking delivery of three tons of fertilizer, or about three times what our own homegrown coward-terrorist-maniacs used to murder 168 Americans in Oklahoma City, and given that the police are also charging them, what's so admirable about the quote?

Well, it shows a commendable concern with the rule of law. Criminal cases have to be tried in a court of law, not in the court of public opinion. If a judge should in the future impose a gag order, the RCMP will abide by it. But more, before charges are unveiled and a court can rule on whether some filings will be made under seal, they want to avoid prejudicing anyone's case.

Now that's respect for law and order. Real law, real order, not just a pro-prosecutorial lock-'em-up inability to recognize that law cuts both ways, imposing responsibilities - duties! - as well as exacting penalties.

Big Love came to a low-key conclusion this Sunday on HBO, and I just caught it OnDemand. (Previous mention on this blog of the show. Comments on other blogs linked below in this post.] As episodes go, it had plenty of major developments. As a season-ender, it definitely falls more on the pause-before-storm rather than dramatic-cliffhanger end of the continuum.

Nobody died. (Although....) The polygamy police didn't serve a warrant or cart away Bill, the patriarch, in handcuffs. There were plenty of tears, plenty of shocked silences.

As with a number of my other favorite dramas, some of the best moments of acting and direction came in slow, dialogue-free scenes, and here, not atypically, as montages, so various actors got to try the "not-talking" bit. Not engaging in dialogue, of course, doesn't mean there's no writing involved. A wordless scene can be saccharine and manipulative; it can be stunning, appalling; it can be heartfelt and even conflicted. Comparing the closing scenes with moments from the West Wing, with the Sopranos, with ER (back in the day), with Six Feet Under (all, I think, somewhat comparable shows, in terms of caliber of actors and direction and writing, as well as, occasionally, tone and impact), I liked, but didn't love, the finale.

What's been resolved? Well,... (spoilers follow):


I also expect my prediction in this Volokh Conspiracy thread to be born out.

The most well-known and eminent judge of the Third Circuit, Edward R. Becker, passed away on Friday afternoon. (NYT obituary; Inquirer obituary; Daily News article shortly before his death) Howard has been especially comprehensive in his coverage, in part because (as a long-time practitioner before and admirer of Becker) he had already posted glowing encomia.

I only saw Judge Becker on the bench once, during oral arguments in the highly visible and temporarily controversial Chester County Courthouse Ten Commandments case. Third Circuit Opinion (pdf); article describing reactions and providing background after Judge Dalzell's decision at the trial level. The late great Stefan Presser argued on the side of the atheist suing to have the commandments covered up or removed. See article noting his re