Friday, December 31, 2004

Saving a Life

I'm now on the email list for my old friend Dan Mattson, who works in anesthesiology with the military in Iraq. He just sent out the following email, which his brother has already posted:
Yesterday started with a bang. Around 0800 I went to the EMT as a casualty just came through the door. He had a tourniquet on his leg, and was barely conscious, cold, and clearly in shock. Brett had the honors of intubating him, while I put in an arterial pressure line and the ER doc put in a femoral IV. His initial blood pressure was around 45-50 over 20. We got some emergency release blood for him and stabilized his pressure enough to get him up to the OR. The case finally ended around 1530, so it was a long, long case, and very labor intensive. There were 3 of us working on the rescusitation most of the time. This guy got 30 units of red cells, 5 units of whole blood, 16 units of plasma, and as many platelets as we could get our hands on. It is amazing the resources we spend on saving the "enemy" soldier. Yes, he was a bad guy, or what we call an SI (Security Interest). We basically depleted our blood bank for him. If he had come in 5 minutes later, he would have been dead. I think it's a good that we treat everybody, but it could become disturbing if an American GI had shown up soon afterwards and we were left without the resources to save him. His femoral artery was damaged, so the surgeon did a saphenous vein bypass graft. This surgeon is conveniently a vascular surgeon, and will be leaving in a few weeks because he was here with the 31st CSH. Today we brought him back to the OR, and he was incredibly stable. He will probably have a good outcome, and then go to jail.
Stuart Buck


Elizabeth Marquardt points to a letter to the New York Times:
I stayed home for two and a half years with our two young children. While on vacation in Nova Scotia, I struck up a conversation with a local woman we met at a firehouse pancake breakfast. On learning my status, she exclaimed: “Oh! You’re a housefather!” I much preferred that moniker to the derivative and inaccurate “house husband” or the clunky “stay-at-home dad.”

Michael Mernin
Montclair, N.J., Dec. 22, 2004
"House husband" may be "derivative and inaccurate," but that doesn't quite capture what's wrong with the term. The real problem is that "house husband" is redundant. "Husband" comes from the Old Norse "hus-bondi," with "hus" meaning "house" and "bondi" meaning "dweller." So technically, the term "house husband" is just as redundant as would be the term "wife woman." ("Woman" came from the Old English "wif-man," or "female person" ("wif" meaning female and "man" meaning person)).

Stuart Buck

Lessons for Democrats

E.J. Dionne is giving advice to the Democrats on how to win elections. I didn't understand why he included the following:
Bush and the Republicans condemn 'class warfare' -- and then play the class card with a vengeance. Bush has pushed through policies that, by any impartial reckoning, have transferred massive amounts of money to the wealthiest people in our country. Yet it is conservatives, Bush supporters, who trash the 'elites,' especially when it comes to culture. Class warfare is evil -- unless a conservative is playing the class card.

Somebody has to call this bluff. Why is it taboo to talk about a Wall Street 'elite' that has benefited from Bush's tax cuts and would win big-time from Social Security privatization? Why is it just terrible to point out that pharmaceutical industry and HMO 'elites' were paid off handsomely in the Medicare drug bill? Why is it so dreadfully radical to denounce corporate 'elites' when conservatives can denounce 'the Hollywood elite' with impunity?
As I recall, Kerry and Edwards did their utmost to turn the entire campaign into a referendum on precisely those sorts of issues. For example, this Kerry speech was utterly typical: "For four years, George W. Bush has made clear economic choices from tax breaks for companies shipping jobs overseas, to multimillionaire giveaways to Enron, pharmaceutical companies, and HMOs." That sentence alone hit several of Dionne's "taboo" topics, including corporate elites, pharmaceutical companies, and HMOs. And I recall that Kerry/Edwards constantly charged that Bush and Cheney were too close to corporate elites such as Halliburton and Enron. (A search for "Enron" on Kerry's website brings up 42 results.)

As for tax cuts, the constant refrain from Kerry/Edwards was that Bush's tax cuts "went to the top 1%."

So what makes Dionne think that Democrats were treating those subjects as "taboo," "just terrible" to talk about, and "dreadfully radical"?

Stuart Buck

Wednesday, December 29, 2004

More on Sunstein

I didn't notice this before, but the same Sunstein review I discussed earlier stretches the truth in two additional ways:
For many admirers of Scalia and Thomas, the real target now is Franklin Delano Roosevelt, not Earl Warren. There is increasing talk of restoring what is being called the Constitution in Exile--the Constitution as of 1932, Herbert Hoover's Constitution, before Roosevelt's New Deal. This was a period in which the Supreme Court's understanding of the Constitution, obviously rooted in the justices' political convictions, jeopardized maximum-hour legislation, minimum-wage legislation, the National Labor Relations Act, the Fair Labor Standards Act, and the Social Security Act--and would certainly have forbidden the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Age Discrimination in Employment Act. This was also a period in which racial segregation was constitutionally fine, and in which it would have been ludicrous to say that the Constitution banned sex discrimination or protected a right to sexual and reproductive privacy.

The Bush administration does not lack sympathy for the Constitution in Exile, and President Bush has nominated judges who appear to believe that it should be restored.
Note the implication that Bush has nominated judges who "appear to believe" that they should "restore[]" a "period in which racial segregation was constitutionally fine."

Then, Sunstein claims that "[t]here is increasing talk of restoring what is being called the Constitution in Exile." Orin Kerr asks the obvious question: Says who? Who has ever used the term "Constitution in Exile"? And where are the "increasing" numbers of conservatives using that term?

Nowhere. As Kerr points out, exactly one conservative-leaning person -- D.C. Circuit judge Douglas Ginsburg -- used the phrase exactly once in a 1995 book review, and Kerr can't find any evidence on Google or Westlaw that any conservative/libertarian has argued for the "Constitution in Exile" ever since. For what it's worth, I've never heard of anyone arguing that we should restore the "Constitution in Exile," and I'm fairly familiar with conservative/libertarian legal scholarship. Conversely, Kerr found some evidence that liberals have occasionally seized upon the phrase (e.g., this Duke Law Journal symposium). But that's not the same thing.

It's no wonder that Sunstein's sentence is so full of passive constructions: "there is increasing talk," "what is being called." If the sentence had an active verb and a subject, he'd have to come up some "increasing" examples of actual human beings using the phrase. It reminds me of the phenomenon that I pointed out earlier (here and here) of news articles that claim that Judge Alito is nicknamed "Scalito" for his resemblance to Justice Scalia -- but no one ever uses the term directly. The term is always ascribed to nameless "others" or "some."

In any event, Sunstein (or his editor?) again managed to create a misleading impression. This is disappointing.

UPDATE: A reader points out that Jeffrey Rosen is a repeat offender here, even claiming that specific (but still unnamed) people have argued for the "Constitution in Exile." In this article, Rosen claims that "[i]f Bush wins, his aides seem determined to select justices who would resurrect what they call 'the Constitution in Exile,' reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal." Unsurprisingly, Rosen does not name any actual Bush "aides" who have used that term.

Then, in this article, Rosen claims that conservative "activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power that have been dormant since the New Deal . . . ." Again, Rosen doesn't name any actual "activists" who "call" their objective the "Constitution in Exile."

SECOND UPDATE: I know, the term "Constitution in Exile" isn't all that significant of an issue, especially compared to the actual substantive ideas being discussed. But still, it's very weird to see Rosen and Sunstein pretending that conservatives themselves are pushing that term. It would be as if, in a single sentence in one 1995 article, a lone federal judge used the term "Constitution of Diversity" to describe various liberal ideas of the Constitution (i.e., protecting affirmative action, protecting diverse expressions of one's personal life, etc., etc.). And then, 9 years later, conservative scholars, for no discernable reason, started writing articles claiming that "liberal activists" are pushing "what they call" the "Constitution of Diversity," or that they are engaged in "increasing talk" about the "Constitution of Diversity."

Stuart Buck


I never had noticed that Peter Jackson's vision of Minas Tirith (as depicted in the Lord of the Rings movies) very much resembles the "Tower of Babel" as depicted by Pieter Breughel.

Stuart Buck

Monday, December 27, 2004


This bit from an interview with U2 was interesting:
Q: Speaking of which: U2 in the Apple iPod ad?

Bono: We always say that we are a gang of four but a corporation of five.

Larry: It was a very clear idea. They make products that we like, also they have single-handedly saved the music industry, they have developed the technology to download the music and for it to be paid for. Record companies couldn't do that -- they were faffing around suing people. We are big fans of Apple, we're happy to stand up and say that, "yes, these guys design the best stuff." When it came to the single, "Vertigo," they were going "can we use that song" and we were thinking, we want to get that riff out there. They wanted to make an ad and we told them we would be in it.

Bono: No money changed hands.

Larry: I'm very precious and conservative about the use of U2's music anywhere because I have concerns about the perception of the band. We're not endorsing a product we're embarrassed about -- we use it the iPod, we like it, it's helping us and other musicians to get paid for their wares. Ninety per cent of people will pay for downloads. Apple and Steve Jobs are saving music for the future. It won't be Universal, EMI or Sony running record companies in 10 years' time -- it will be Apple and telephone companies. We don't do advertisements, we did do the Apple campaign.

Bono: We did think about doing a car ad at one stage. We were offered $23 million for one song. Here's a moral hazard for you: we, and I particularly, know what $23 million can buy if you're not going to keep it.

Larry: Yeah, a yacht!

Bono: You can build a lot for $23 million in the countries I've been in. But you either tell people you're giving it away -- then, by our definition, it is no longer charity, in the sense that the right hand shouldn't know what the left hand is doing. Finally, the reason we didn't do it was because it was for "Where the Streets Have No Name." If a U2 show is going askew, as it can, the one song you can rely on to get that room back is "Where the Streets Have No Name," and we didn't want some 16-year-old kids turning to each other and saying "oh great, they're playing the car ad." Now, had it been a different song out of the U2 canon...It's not zealotry that stops us -- in the end we didn't want to embarrass our fans, we didn't want to change the mood in which that song is perceived.

It's not the "in bed with a corporation" usual thing that stops us. We are in bed with many corporations: MTV are a Viacom corporation; Clear Channel -- they play us on the radio; Universal, our label, is a Vivendi corporation. It's not the cash, it's just "don't embarrass us." In my other life as a lobbyist I will be looking for $223 million and I'd prefer to spend my time doing that.
Stuart Buck


This is a very interesting, and potentially troubling, article about the CIA practice of "rendition," whereby terror suspects are secretly taken from one country to another for questioning.
The CIA has the authority to carry out renditions under a presidential directive dating to the Clinton administration, which the Bush administration has reviewed and renewed.
Which shows that the government's interest in this practice is bipartisan.

Stuart Buck

Sunday, December 26, 2004

Sunstein on the Rehnquist Court

Via Howard Bashman, Cass Sunstein reviews Mark Tushnet's latest book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law. This passage was interesting:
Tushnet describes a court that has followed the extreme conservatives on some important issues. Under Rehnquist's leadership, the constitutional law of federalism has seen a kind of revolution. Between 1937 and 1995, the Court did exceedingly little to limit the power of the national government, failing to issue even a single ruling to the effect that Congress had exceeded its authority under the commerce clause. By contrast, the Rehnquist Court has re-invigorated limitations on congressional power, striking down provisions of both the Gun-Free School Zones Act and the Violence Against Women Act. For many decades, the Court ruled that Congress had a great deal of flexibility to protect liberty and equality under its power to "enforce" the Fourteenth Amendment. Sharply limiting these rulings, the Rehnquist Court has struck down the Religious Freedom Restoration Act and parts of the Americans With Disabilities Act and the Age Discrimination in Employment Act. Tushnet thinks that these decisions reflect "disdain for Congress."

Under the Rehnquist Court, as Tushnet explains, U.S. corporations have had many significant successes. Countless companies have been alarmed at the prospect of high punitive-damage awards, and indeed jury awards can be both huge and unpredictable. Does the Constitution stand in the way of such awards? For almost all of the nation's history, the answer was no; juries could award punitive damages without the slightest constitutional restriction. But under the Rehnquist Court, all this has changed. In two crucial decisions, the Court has required that the punitive award have some relationship to the monetary value of the harm that was done. This requirement imposes a real discipline on what juries may do.
This is very sloppy writing. The passage begins by claiming that the Court is led by "extreme conservatives on some important issues," and then offers as a second example the fact that the "Rehnquist Court" has protected corporations by limiting punitive damages.

This may leave may relatively uninformed readers with the impression that the "extreme conservatives" on the Supreme Court were protecting corporations, etc. Such an impression would be precisely false.

The "two crucial decisions" in which the "Rehnquist Court" has limited punitive damages are BMW v. Gore, and State Farm Mutual Auto. Insurance v. Campbell. In the first case, the majority was composed of Stevens (writing), Souter, Breyer, O'Connor, and Kennedy. The dissenters were Ginsburg and the three most conservative Justices -- Scalia, Thomas, and Rehnquist himself. In the second case, Rehnquist seems to have changed positions, perhaps for stare decisis reasons. Scalia, Thomas, and Ginsburg still dissented. (Scalia and Thomas, in particular, object to the sort of "substantive due process" reasoning that the Court employed here.)

So the "Rehnquist Court" was not by any means led by "the extreme conservatives" in issuing these two punitive damages decisions. The opposite is the case: The "extreme conservatives" dissented, while the Court's liberals (with the exception of Ginsburg) favored the outcomes.

Stuart Buck

Saturday, December 25, 2004

Donald Rumsfeld

Glenn Reynolds links to this first-hand account of a soldier who witnessed Rumsfeld visiting an injured soldier. Interestingly enough, the soldier is Dan Mattson, who I've known for well over a decade. He plays classical guitar, and we used to hang around in the same circles.

Stuart Buck

Friday, December 24, 2004


Anyone know why I can never access James Lileks' site? For the past month or so, every time I try to visit his site, I get this message:
The page you are looking for is currently unavailable. The Web site might be experiencing technical difficulties, or you may need to adjust your browser settings.
But I can access his site from a family member's computer. The mystery is why his site alone suddenly stopped working for me at home. Any ideas?

Stuart Buck

Wednesday, December 22, 2004

Large Families

My friend Tom Spence of Spence Publishing (notice the icon on the left side of this blog) wrote this op-ed explaining and defending large families.

Stuart Buck

Monday, December 20, 2004

Rock Songs

I almost forgot: One more reason that Rolling Stone's list of the "500 Greatest Rock Songs" is untrustworthy: It put U2's Pride (In the Name of Love) at number 378, while the treacly and sophomoric Imagine by John Lennon was ranked number 3!

Stuart Buck


Steven Smith's new book Law's Quandry sounds like a wonderfully interesting book. I very much enjoyed and profited from reading two of his other books -- Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, and Against the Law (co-authored with Paul Campos and Pierre Schlag, both of whose other writings are always worth reading). Larry Solum's exclamatory recommendation quotes from a review on Amazon:
This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense.

The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.
From that description, it sounds like the book is based on several of Smith's previous law review articles, all of which are worth reading as well.

Stuart Buck

Laissez Faire

Notice a pattern here?
  • The ACLU has been engaging in "extensive data collection" on its own members for its own financial benefit. This has led some ACLU board members to say that the organization's practices make "a mockery of the organization's frequent criticism of banks, corporations and government agencies for their practice of accumulating data on people for marketing and other purposes." (As you can see here or here, the ACLU regularly supports legislative restrictions on how private groups can collect or share information, even for the purpose of preventing terrorism.)

  • The Association of Community Organizations for Reform Now, or ACORN, is constantly seeking to raise minimum wages or establish a "living wage" in various places. Yet that organization itself filed a lawsuit in California in 1995 to exempt itself from the minimum wage and overtime laws. To quote from a news story about that case: "'The more that ACORN must pay each individual outreach worker - either because of minimum wage or overtime requirements - the fewer outreach workers it will be able to hire,' ACORN said in its court brief.

    "ACORN's arguments also failed to persuade the First Appellate Court in California.

    "'Leaving aside the latter argument's absurdity (minimum-wage workers are ipso facto low-income workers) as well as irony (an advocate for the poor seeking to justify starvation wages), we find ACORN to be laboring under a fundamental misconception of the constitutional law,' wrote Judge P.J. Peterson for the majority."

    The citation, by the way, is Association of Community Organizations for Reform Now v. Department of Industrial Relations, 41 Cal. App. 4th 298, 301 (Cal. Ct. App. 1995).

    (More on ACORN, and also on Ralph Nader's groups, here.)

  • David Horowitz has been pushing a legislative item he calls the "Academic Freedom Bill of Rights," which has provisions about the values of diversity, pluralism, and the free exchange of ideas, as well as protecting people from being hired or fired on the basis of "political or religious beliefs." Academics are largely opposed to this idea, and some are outraged that legislatures would even consider poking their noses into the business of academia.
The lesson? People tend to be laissez faire when it comes to their own conduct, even those who usually support extensive regulation as to businesses run by other people.

Stuart Buck

Saturday, December 18, 2004


Tolkien must have learned Hebrew at some point.


What do I like that's on television? Not much, as far as I know. There are only two shows that I have watched regularly for the past few years: 24 and Alias. I've been watching the show Lost, but I'm not sure that the writers know where they want to take the show. (For example, the opening episode -- with the pilot getting mauled by an unseen monster -- was cool. And in one or two episodes since then, various people have seen signs of the monster. But for the past several episodes, people just saunter around the jungle alone as if they aren't worried about anything. This makes no sense.)

Now that I think about it, this fits into an overall pattern. Almost all of the TV shows I have liked have been very dark. I liked Highlander, the modern version of The Outer Limits, and the X-Files (although it wasn't as interesting in the last few seasons). One especial, all-time favorite was American Gothic, which unfortunately ran for only one season. (It was produced by Sam Raimi, who later did the Spider-Man movies, and it featured the excellent child actor Lucas Black, who also starred in Sling Blade, and who had a wonderfully thick Alabama accent.)

I don't really care for television comedies. The most recent sit-com that I really liked was The Cosby Show, and before that, the Andy Griffith Show. Every time I see a commercial for any sit-com that's currently on the air, I cringe at the vapid scenes depicted. Assuming that the networks would pick the highlights of a given show to put in a commercial, I get the feeling that all sit-com writers seem to be aiming for the lowest common denominator: cheap and vulgar one-liners. Perhaps I'm underestimating sit-coms as a genre, but given the stupidity of what the networks depict on commercials, I have absolutely no desire to waste the time to find out whether any sit-com is actually funny.

Stuart Buck

Friday, December 17, 2004


For those who know what this is about (I just barely understand it myself), I replaced my site feeds with a Feedburner link, thanks to a reader who notified me that the RSS feed wasn't working. Anyway, if you use a newsreader, that Feedburner link to the left should take the place of both RSS and Atom, if I understand Feedburner's promotional webpages correctly.

Stuart Buck

Interesting article

Did Mandatory Unbundling Achieve Its Purpose? Empirical Evidence from Five Countries

Massachusetts Institute of Technology (MIT)
Department of Economics
National Bureau of Economic Research (NBER)
American Enterprise Institute (AEI)

Paper ID: MIT Department of Economics Working Paper No. 04-40
Date: 2004

In this article, we examine the rationales offered by telecommunications regulators worldwide for pursuing mandatory unbundling. We begin by defining mandatory unbundling, with brief descriptions of different wholesale forms and different retail products. Next, we examine four major rationales for regulatory intervention of this kind: (1) competition in the form of lower prices and greater innovation in retail markets is desirable, (2) competition in retail markets cannot be achieved with mandatory unbundling, (3) mandatory unbundling enables future facilities-based investment (stepping-stone or ladder of investment hypothesis), and (4) competition in wholesale access markets is desirable. We proceed by testing empirically the major rationales in the United States, the United Kingdom, New Zealand, Canada, and Germany. For each case study, we review the mandatory unbundling experience with respect to retail pricing, investment, entry barriers, and wholesale competition. We review the lessons learned from the unbundling experience. We also identify which rationales were incorrect in theory and which rationales were correct in theory yet were not satisfied in practice. For the second category of rationales, we attempt to provide alternative explanations for the failure of mandatory unbundling to achieve its goals.
Stuart Buck

Thursday, December 16, 2004


This article tells a provocative story about how environmentalists may have undermined their own goals by irrationally demonizing the Bush administration's environmental plans.

Stuart Buck

Wednesday, December 15, 2004

Solum on Balkin on Drum on Krannawitter on Thomas

Larry Solum has a typically thoughtful post discussing the dispute over Justice Thomas's belief in natural law. A key quote:
Drum's point is that Thomas was violating an ideal of public reason, because Supreme Court Justices are "supposed to interpret the constitution on secular grounds." Of course, Justice Thomas does interpret the constitution on secular grounds in his opinions for the Court. The question then, is whether it is proper for a Supreme Court justice to argue that the underlying moral foundation for the constitution is religious in extra-judicial discourse.
Stuart Buck

Thomas and Natural Law

There's a lot of talk about Thomas Krannawitter's article defending Justice Thomas because of his belief in natural law. Here's a quote from that article:
Thomas is one of the few jurists today, conservative or otherwise, who understands and defends the principle that our rights come not from government but from a "creator" and "the laws of nature and of nature's God," as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.
In response, Brian Weatherson characterizes this belief as a "good Christian view." I'm not sure what this means: There are plenty of good Christians who have never even heard of natural law or natural rights. And conversely, there is nothing necessarily Christian about natural law and natural rights. These ideas can be traced to ancient Greek and Roman origins (as Heinrich Rommen did in his book Natural Law, which -- amazingly -- is available online in its entirety here). Thomas Paine, who wasn't exactly a "good Christian," wrote of the "illuminating and divine principle of the equal rights of man." Thomas Jefferson, who wrote the Declaration (with its line about "the laws of nature and nature's God) was a deist, not a Christian, and he famously produced a heavily-edited edition of the Bible (having cut out the passages with which he disagreed). David Novak has explained how Judaism can be reconciled with natural law and natural rights. Indeed, some modern natural law theories (i.e., the works of Germain Grisez and John Finnis) are criticized precisely for not being Christian:
At least part of the reason for the current lack of interest in the natural law among theologians lies in the fact that until recently, Roman Catholic thinkers in particular emphasized the purely rational and non-theological status of the natural law. (In fact, this conception of the natural law is still prevalent among some Catholic scholars, as evidenced by the work of Grisez and Finnis.) For this very reason, many contemporary theologians, Catholic as well as Protestant, have concluded that a natural law morality is insufficiently grounded in a distinctively Christian world view.
Stuart Buck

Tolkien and Lewis

Another anecdote regarding C.S. Lewis:
From a letter to Christopher Tolkien

1 March 1944

* * *

Lewis is as energetic and jolly as ever, but getting too much publicity for his or any of our tastes. 'Peterborough', usually fairly reasonable, did him the doubtful honour of a peculiarly misrepresentative and asinine paragraph in the Daily Telegraph of Tuesday last. It began 'Ascetic Mr. Lewis'-----!!! I ask you! He put away three pints in a very short session we had this morning, and said he was 'going short for Lent'. I suppose all the stuff you see in print is about as accurate about Tom, Dick, or Harry. * * *
Stuart Buck

A Joke

From a letter to Joyce Reeves
4 November 1961

* * *
My remarks, I fear, must savour a little of the legendary German professor, who wrote a large book on Das Komische. After which, whenever anyone told him a funny story, he thought for a moment, and then nodded, saying: 'Yes, there is that joke'.
Stuart Buck

Tolkien and Gardner

I hadn't heard this anecdote before:
From a letter to Michael Tolkien

9-10 Jan. 1965

* * *

I am neither disturbed (nor surprised) at the limitations of my 'fame'. There are lots of people in Oxford who have never heard of me, let alone of my books. But I can repay many of them with equal ignorance, neither wilful nor contemptuous, simply accidental. An amusing incident occurred in November, when I went as a courtesy to hear the last lecture of this series of his given by the Professor of Poetry: Robert Graves. (A remarkable creature, entertaining, likeable, odd, bonnet full of wild bees, half-German, half-Irish, very tall, must have looked like Siegfried/Sigurd in his youth, but an Ass.) It was the most ludicrously bad lecture I have ever heard. After it he introduced me to a pleasant young woman who had attended it: well but quietly dressed, easy and agreeable, and we got on quite well. But Graves started to laugh; and he said: 'it is obvious neither of you has ever heard of the other before'. Quite true. And I had not supposed that the lady would ever have heard of me. Her name was Ava Gardner, but it still meant nothing, till people more aware of the world informed me that she was a film-star of some magnitude, and that the press of pressmen and storm of flash-bulbs on the steps of the Schools were not directed at Graves (and cert. not at me) but at her.
Stuart Buck

Another Tolkien Letter

Tolkien's letters depict him as a modest and polite man. But on occasion, he could be roused to anger:
To Rayner Unwin
12 Sept. 1965

[In August 1965 Ballantine Books produced the first 'authorised' American paperback of The Hobbit, without incorporating Tolkien's revisions to the text. The cover picture showed a lion, two emus, and a tree with bulbous fruit.]

I wrote to [his American publishers] expressing (with moderation) my dislike of the cover for The Hobbit. It was a short hasty note by hand, without a copy, but it was to this effect: I think the cover ugly; but I recognize that a main object of a paperback cover is to attract purchasers, and I suppose that you are better judges of what is attractive in USA than I am. I therefore will not enter into a debate about taste -- (meaning though I did not say so: horrible colours and foul lettering) -- but I must ask this about the vignette: what has it got to do with the story? Where is this place? Why a lion and emus? And what is the thing in the foreground with pink bulbs? I do not understand how anybody who had read the tale (I hope you are one) could think such a picture would please the author.

These points have never been taken up, and are ignored in [their] latest letter. These people seem never to read letters, or have a highly cultivated deafness to anything but 'favorable reactions'.

Mrs. ---- [a representative of the paperback publishers] did not find time to visit me. She rang me up. I had a longish conversation; but she seemed to me impermeable. I should judge that all she wanted was that I should recant, be a good boy and react favorably.
When I made the above points again, her voice rose several tones and she cried: 'But the man hadn't TIME to read the book!' (As if that settled it. A few minutes conversation with the 'man', and a glance at the American edition's pictures should have been sufficient.)
With regard to the pink bulbs she said as if to one of complete obtusity: 'they are meant to suggest a Christmas Tree'. Why is such a woman let loose?

Monday, December 13, 2004

Marriage Laws

I don't know that I've seen a good answer to the following question:
An interesting piece today looks at attempts in Massachussetts (and elsewhere) to remove old Puritan-era "blue laws" that are technically still on the books.

* * *

The second thing that made me pause was the mention of adultery as an example of an archaic crime. I'm not so sure. A good part of this has to do with the current debates about the place of marriage in society. In the same-sex marriage debate, one thing that most everyone takes for granted is that the marital contract is of crucial interest to the State -- so much so that many on the right want a Constitutional amendment to limit it to man and woman, that many on the left will try all sorts of legal legerdemain to force recognition of same-sex marriage even against the will of the majority, and many in the middle are thinking up laws to construct something like marriage but without the name. If this public institution (and its analogues) needs all that legal attention, then why shouldn't the State also penalize those parties who violate the terms of the contract? It seems to me that if the State can't survive without legislating and regulating marriage in the first place (and that remains to be demonstrated), then violation injures the State and so it's in the State's interest to enforce the terms of the marriage contract -- which means adultery laws. And, contrariwise, if the State shouldn't worry itself with whether the parties to a civilly-recognized marriage are in fact meeting the obligations that justify all the civil perks and recognition in the first place, then it seems to follow that the State's interest in marriage isn't as great as everyone is claiming.
Good question.

Stuart Buck


A reader sends the following link to a current article in The Chronicle of Higher Education: The Chronicle: 12/17/2004: Four Academic Plagiarists You've Never Heard Of: How Many More Are Out There?

Stuart Buck

Tolkien on unwanted calls

From Tolkien's collected letters:
From a letter to Joy Hill, Allen & Unwin

10 May 1966

[Tolkien's telephone number was still in the Oxford directory, and he was sometimes bothered by calls from fans.]

Thank you very much for your suggestions about my telephone number, which I will consider. Removing the number from the directory seems better than the method adopted by Major W.H. Lewis in protecting his brother [C.S. Lewis], which was to lift the receiver and say 'Oxford Sewage Disposal Unit' and go on repeating it until they went away.

Phone Service

This article from the New York Times depicts the true cost of "universal service," i.e., the notion that everyone, no matter where, should be served by the phone system.
MINK, La. - It's no secret what the 15 householders in this tiny settlement want for Christmas: the same thing they have always wanted year round - telephones.

* * *

Alexander Graham Bell's invention of 1876 never reached Mink, a onetime trappers' paradise in the Kisatchie National Forest in west-central Louisiana, although neighbors just down the road on Highways 117 and 118 were wired for telephones in the 1970's.

The telephone also never reached the hundred families of Shaw and Black Hawk, hunting and camping communities across the state along the Mississippi River, some of the few and untabulated places around the country lacking telephone lines. Yes, the telephone is not everywhere. In fact, televisions are more common in American homes today.

* * *

Then, last February, Foster Campbell, a state senator elected in 2002 to represent north Louisiana on the state's Public Service Commission, came here for a community meeting and got an earful.

Mr. Campbell said in an interview that he did not understand at first. "I said, 'What, you have static?' They said, no they never had a telephone. I said: 'Wait a minute. You never had a telephone?' I had to sit down."

"We just put the heat on the telephone companies," he added.

Kevin F. Curtin, a spokesman for BellSouth, said that Mink had been unclaimed territory but that the utility was complying with a state order to annex Mink into its service area, at a cost of $700,000 - or about $46,000 per customer.
There's a chance that BellSouth will be reimbursed out of a state fund next year.

Still: $46,000 per customer? I get the feeling that someone wasn't performing cost-benefit analysis there.

Saturday, December 11, 2004

Legal Affairs Poll

The magazine Legal Affairs is conducting a poll on the "Top 20 Legal Thinkers in America." It's an unscientific poll. Nonetheless, how were the candidates chosen?

This page supplies the answer:
To come up with the list of top legal thinkers, we relied primarily on a few sources. The academics are drawn from rankings by Fred Shapiro, a librarian at Yale Law School, and by Brian Leiter, a professor of law and philosophy at the University of Texas. Shapiro and Leiter rank the influence of legal academics based on the number of books they've published and the number of social science and law journal articles that cite their work.

For federal judges, we considered the number of opinions they've written and the number of citations those opinions received. We also relied on the methodology of William Landes, a law professor at the University of Chicago, Lawrence Lessig, a professor at Stanford Law School, and Michael Solimine, a law professor at the University of Cincinnati. We relied on statistics calculated by Stephen J. Choi, a professor at Boalt Hall, and G. Mitu Gulati, a professor at Georgetown Law Center. They give particular consideration to the number of citations by courts outside a judge's circuit, reasoning that those rulings have had the widest influence. We included state court judges based on their appearances in casebooks and in the press.
Well, count me skeptical that the list was compiled according to these standards. The list of professors includes several young academics (such as Noah Feldman, and Nathaniel Persily, both of whom became professors in 2001). I find it impossible to believe that either of these scholars, smart as they might be, have been more cited than one of the nation's top constitutional scholars -- Michael McConnell -- who is conspicuously not on the list. Or Mary Ann Glendon, who has taught at Harvard since 1974. Or Charles Fried, who has taught at Harvard since 1961 (with occasional detours into government). Indeed, McConnell, Glendon, and Fried rank 31st, 32nd, and 35th, respectively, on Brian Leiter's own list of the most-cited law faculty! How could assistant professors who started in 2001 have already gotten enough citations to place them in the top 30 of all time?

Answer: They haven't. A LEXIS search as of today reveals that Noah Feldman's name is used 96 times in the database of all law review articles, and Nathaniel Persily appears 101 times. (Just to compare: My own name appears 36 times in the same database, and I'm not even a professor.) Michael McConnell, by contrast, appears 2,265 times, Glendon appears 2,115 times, while Charles Fried appears 1,962 times.

What's more, if the factor of "youth" was given some sort of bonus (although the stated criteria don't mention this), I can't tell why Feldman and Persily were chosen over other relatively young scholars who have far more citations. Caleb Nelson, for example, authored a paper that won a national prize for the best paper by a new law professor, and has appeared in the law review database 196 times. Saikrishna Prakash, to take another example, appears in the database 468 times. Other examples: Christine Jolls (598 mentions in the law review database), or Adrian Vermeule (416), or Ernest Young (369), or Yochai Benkler (419), or John Manning (436). (UPDATE: Todd Zywicki at the Volokh site linked to this post; which reminds me to point out that his name appears 280 times in the law review database.)

Why would scholars like these be excluded in favor of Feldman and Persily if the supposed criteria were publications and citations? It's a mystery.

The list of judges is similarly idiosyncratic: Unexpected inclusions and bizarre omissions. It includes such figures as Nancy Gertner (a district judge appointed by Clinton), Paul Cassell (a district judge appointed in 2002), and Gerard Lynch (a district judge appointed by Clinton in 2000).

Given that district court decisions aren't strictly binding on other courts, I find it enormously unlikely that any of these district judges are more cited than certain appellate judges who are conspicuously not on the list. D.C. Circuit judge Stephen Williams is widely respected as one of the nation's most brilliant judges, and he has served since 1986. Indeed, he is one of the few appellate judges (Posner is another) who is so respected by the Supreme Court that lawyers making Supreme Court arguments find it useful to highlight the fact that he (rather than another judge) was the author of an opinion. How could a list supposedly based on citations leave him off while including relatively obscure district judges appointed in the past few years? Or take 5th Circuit judge Patrick Higginbotham, also widely known as one of the nation's finest judges, and who has served since 1982. Again, how could the named district judges beat him out? There are other long-serving and highly distinguished judges I could mention as well, but you get the point.

Conclusion: The description of the list's criteria is misleading. Some people may have been chosen by publications and citation rankings, but those can't possibly have been the only criteria. Otherwise, there is no explanation for some of the inclusions or omissions.

UPDATE: If you doubt that the list was created by an inexplicable process, consider that among the writers/commentators listed as candidates for "Top 20 Legal Thinkers in America" are John Grisham and Scott Turow. Mildly entertaining novelists? Yes. Top legal thinkers? Come on. Quod erat demonstrandum.

Thursday, December 09, 2004

Senator Cornyn vs. the Times

Two major newspapers have recently published editorials in favor of the filibuster, as used against Bush's judicial nominees. Senator John Cornyn has written letters in response to each one. Neither paper published the letters. Nor has anyone else published them, to my knowledge.

First, the New York Times' editorial:
The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.
Senator Cornyn's response:
November 29, 2004
Letter to the Editor:

I read with great surprise Sunday’s editorial praising the filibuster as a worthy obstructionist tactic in the United States Senate [Mr. Smith Goes Under the Gavel, November 28, 2004]. After all, it wasn’t long ago that the Times advocated just the opposite.

On January 1, 1995, the Times editorialized that it was “Time to Retire the Filibuster,” describing the tactic as “the tool of the sore loser” and “an archaic rule that frustrates democracy and serves no useful purpose.” Have times changed – or has the Times changed?

But beyond the contradictory statements, Sunday’s editorial also misreads history. In more than two centuries of Senate tradition, whenever a judicial nominee received the support of a majority of Senators, that nominee was confirmed. None have been blocked by a filibuster — until now. The current use of the filibusters is as unprecedented as it is wrong. The Senate Democratic leadership have already conceded this – indeed, they have boasted about their “unprecedented” tactics.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a President’s judicial nominees.

The Times cheered previous attempts at limiting the use of filibusters. Why, then, the change of tune?

John Cornyn
United States Senator
Then the Los Angeles Times published this op-ed by law professors Michael Gerhardt and Erwin Chemerinsky, in which they claim that "[t]he GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate."

Senator Cornyn's response:
December 6, 2004
Letter to the Editor:

An op-ed in Sunday’s Times by two law professors, Erwin Chemerinsky and Michael Gerhardt, praised the use of filibusters to prevent the confirmation of federal judges, and criticized efforts to reform its unprecedented use against nominees [“Senate's 'Nuclear Option'”]. Their own academic writings, however, contradict those views.

These two professors have previously expressed opposite views on the subject. In 2000, Professor Gerhardt published a book critical of supermajority requirements to confirm judges, stating that such rules “would be more likely to frustrate rather than facilitate the making of meritorious appointments” and are “hard to reconcile” with the Constitution, which “required a simple majority for confirmations to balance the demands of relatively efficient staffing of the government.”

Likewise, Professor Chemerinsky has previously written that the filibuster rules can be changed by a majority vote – the very tactic that he now derides as a “nuclear” option. In a 1997 Stanford Law Review article, the professor wrote that the filibuster rule “is unconstitutional,” and that “a majority of this Senate could eliminate the filibuster if a majority wished to do so.”

Throughout two centuries of Senate tradition, whenever a judicial nominee receives the support of a majority of Senators, that nominee is confirmed. None have ever been blocked by a filibuster — until now. The Senate Democratic leadership has already conceded this – indeed, they have boasted about their “unprecedented” tactics to impose supermajority requirements on judicial nominees.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a President’s judicial nominees.

John Cornyn
United States Senator
UPDATE: As a commenter points out, the LA Times did print Cornyn's letter Saturday. Here's the edited version that was printed:
Chemerinsky and Gerhardt praised the use of filibusters to prevent the confirmation of federal judges and criticized efforts to reform its unprecedented use against nominees. Their own academic writings, however, contradict those views. In 2000, Gerhardt published a book critical of super-majority requirements to confirm judges, stating that such rules "would be more likely to frustrate rather than facilitate the making of meritorious appointments" and are "hard to reconcile" with the Constitution. Likewise, Chemerinsky has previously written that the filibuster rules can be changed by a majority vote — the very tactic that he now derides as a "nuclear" option. In a 1997 Stanford Law Review article, he wrote that the filibuster rule "is unconstitutional" and that "a majority of this Senate could eliminate the filibuster if a majority wished to do so."

The filibuster is not sacrosanct. There are dozens of laws on the books that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a president's judicial nominees.

Sen. John Cornyn

Senator Reid and Justice Thomas

Even a "staunch critic" of conservative jurisprudence admits that Senator Reid's comment about Justice Thomas was absurd:
Obviously, my readers know that I'm a fairly staunch critic of conservative judicial theories and judges, but I think Thomas has been the recipient of unduly harsh treatment. And that treatment has little, if anything, to do with his performance on the Supreme Court. If anything, Thomas is more consistent than Scalia or Rehnquist, his conservative colleagues on the court. And the fact is that Thomas, even where I disagree with him (and I usually do), has proven to be a much better legal thinker than some of his detractors would have you think. I happen to be one of those detractors, but I'll criticize him in more specific and substantive ways when need be. To call him an embarrassment to the court is just ridiculous rhetoric and is not the sort of thing a Senate leader should be saying.


I knew that being left-handed was good for something.

Wednesday, December 08, 2004


Hugo Schwyzer poses a fascinating question:
The mystery to which I refer is this: one of my Western Civ classes, for example, is filled with students who seem tired, uninterested and virtually lifeless. The other is filled with students who laugh at my poor jokes, ask constant questions, and seem to relish being around each other. Both classes are in similar time slots, they get the same lecture, they read the same book, they take similar exams. I leave one class feeling exhausted, and the other walking on air. To a less extreme degree, the same is true with my two Women's History classes.

Classroom chemistry has little to do with student performance. At times, my most enjoyable classes were filled with C students while my quietest and most exasperatingly passive classes were filled with those who did unusually good written work.

The chemistry also seems unrelated to my own effort level. Indeed, sometimes I think I try harder with my "dead" classes, hoping against hope to inspire something beyond blank stares. With the more animated classes, I can relax and enjoy myself more thoroughly, and indeed relax quite a bit.

It also seems unrelated to the weather, the season of the year, the time of day, or whether I am wearing jeans or khakis.

Anyone have any theories about classroom chemistry?
Yes, anyone? This doesn't seem like the sort of thing that you could quantify and measure (although given the propensity of some economists, I wouldn't be surprised if someone had done so). And I've noticed the same phenomenon outside the classroom. Some groups of people (all too rarely, in my experience) just seem to "click," and everyone is excited to converse with each other, prod each other intellectually, etc. But most groups of people (including at Harvard) don't have the same energy when it comes to discussing the world of ideas. Perhaps it is just an instinctive shyness that -- occasionally, and sometimes for mysterious reasons -- is overcome when everyone realizes that no one else in the group is going to roll their eyes or become bored when if someone openly expresses a passionate interest in some intellectual question.

Interesting Articles

A couple of new articles that look interesting:
The Effect of Entry and Market Structure on Cellular Pricing Tactics

Stanford University
Graduate School of Business
Stanford University
Graduate School of Business

Paper ID: NET Institute Working Paper No. 03-13
Date: November 2004

We test the effect of entry on the tariff choices of incumbent cellular firms. We relate the change in the breadth of calling plans between 1996, when incumbents enjoyed a duopoly market, and 1998, when incumbents faced increased competition from personal communications services (PCS) firms. Entry by PCS competitors differed across geographic markets due to the number of licenses left undeveloped as a result of the bankruptcy of some of the auctions' winning bidders and due to variation across markets in the time required to build a sufficiently large network of wireless infrastructure. We find that incumbents increase tariff variety in markets with more entrants and that this effect is not explained by demographic heterogeneity or cost differences in maintaining calling plans across markets. We also find that incumbents are more likely to upgrade their technology from the old analog technology to the new digital technology in markets with more entry, suggesting that entry also has indirect effects on tariff choice via firms' technology adoption decisions.
How do Incumbents Respond to the Threat of Entry on Their Networks? The Case of the Major Airlines

University of Chicago
Graduate School of Business
National Bureau of Economic Research (NBER)
University of Chicago
Department of Economics
National Bureau of Economic Research (NBER)

Paper ID: NET Institute Working Paper No. 04-04
Date: October 2004

This paper examines how incumbents respond to the threat of entry of competitors, as distinguished from their response to competitors' actual entry. It uses a case study from the passenger airline industry--specifically, the evolution of Southwest Airlines' route network--to identify particular routes where the probability of future entry rises abruptly. When Southwest begins operating in airports on both sides of a route but not the route itself, this dramatically raises the chance they will start flying that route in the near future. We examine the pricing of the incumbents on threatened routes in the period surrounding such events. We find that incumbents cut prices significantly when threatened by Southwest's entry into their routes. This is true even after controlling in several ways for airport-specific operating costs. The response of incumbents seems to be limited only to the threatened route itself, and not to routes out of nearby competitor airports where Southwest does not operate (e.g., fares drop on routes from Chicago Midway but not Chicago O'Hare). The largest responses appear to be restricted to routes that were concentrated beforehand. Incumbents do experience short-run increases in their passenger loads concurrent with these fare cuts. This is consistent with theories implying incumbents will try to generate some longer-term loyalty among current customers before the entry of a new competitor. We examine evidence relating this motive to build demand stock to frequent flyer programs and find suggestive evidence in favor of this notion. There is only weak evidence that incumbents increase capacity on the routes.

More on Education

Michele Catalano emailed about my education column with a fascinating story about some educators who were apparently were bored with the very alphabet:
Your TCS column got me thinking and reminded me about my own experience with bored educators and new innovations in teaching methods.

This is not something new. They must have been very bored back in the 60's, because that is when I was taught - for three grades - to learn how to read using the I.T.A. (Initial Teaching Alphabet).

ITA was a phonic-based system with an alphabet all its own.

It was only through the sheer diligence of my mother and my own desire to read and write like a normal person that I came out of third grade with any literacy skills at all. The fact that I was reading on a seventh grade level in fourth grade had nothing to do with ITA and, in fact, had everything to do with my desire to learn like the other kids were learning.

We had to take special ITA books out the library. We could only write in ITA in our classes; all our reports and tests had to be in that form. It was confusing as hell and frustrating to parents who had to learn an entirely new way of writing and reading in order to help their children succeed in school.

I have no idea why I (along with about 10 others classmates) was singled out for this grand experiment, and I never did find out any results of whatever studies were done on those of us who were used in the experiment.
Check out the alphabet used for the ITA system, and especially take a look at one of the website's two "success stories" here. How bizarre.


Tuesday, December 07, 2004

Education and Boredom

An education grad student has these comments on my essay on education:
I had a professor a couple of semesters ago say two things in the same breath: first, that teaching little kids to read is probably the most important thing an elementary school teacher can do, and second, that teaching little kids to read is really boring. Yeah. Boring.

It's not the first time I have heard that. I've been doing research in schools located in the some of the most disadvantaged places in the US, and one of the teachers I interview regularly was telling me about a new, scripted program to teach reading. She said, 'It's boring. It's a little boring to teach.'

Then she paused. 'But the kids seem to really be making progress. So I'm starting to think, I liked the old, creative curriculum, but it might not have been as good for the kids as this one.'
There's more.


New essay

I published an essay on education here.

Sunday, December 05, 2004

Reid on Thomas

Senator Harry Reid had this to say earlier today:
Incoming Senate Minority Leader Harry Reid on Sunday had harsh words for Supreme Court Justice Clarence Thomas.

When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC's 'Meet the Press': 'I think that he has been an embarrassment to the Supreme Court.

'I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice.'
I don't think that anyone who actually reads Supreme Court opinions would say that Thomas's opinions are poorly written. Many people disagree with some of his opinions on political or constitutional grounds, but that is a far different thing from saying that Thomas isn't even competent at writing.

Reid's comment reminded me of a prior post in which I quoted what Mark Tushnet, one of the nation's preeminent scholars of constitutional law, once said by email to me. The subject was how Tushnet plans to discuss Thomas's jurisprudence in a forthcoming book:
Incidentally, I'm going to begin the material on Thomas that I'm about to write with something like this: It's nearly impossible to find anyone who is dispassionate about Justice Thomas. The legacy of his bitter confirmation hearings remains strong. But, taking his work on the Supreme Court on its own terms, I think that what he has had to say about the Constitution is certainly more interesting than Justice Scalia's work and probably is more likely to make a permanent contribution to constitutional law -- if Thomas can suppress his occasional impulses to imitate Scalia's "take no prisoners" style and instead continues to write with the restraint that is more typical of Thomas opinions.
UPDATE: Ann Althouse from Univ. of Wisconsin Law School adds her thoughts on Reid's comments:
Is that the tack the Democrats are going to take if Scalia or Thomas is nominated to succeed Chief Justice Rehnquist? Scalia has an ethics problem, and Thomas is an "embarrassment"? Roundly acknowledge that Scalia is brilliant, but slur Thomas as someone who can't even put his written opinions together?? It is my observation that liberals tend to lapse into the lazy belief that those who don't agree with them must be stupid or evil, and to me Reid's remarks look a bit like that. But I realize the Senators can't get away with opposing a judicial nomination on the ground that they simply disagree with their opinions. They've got to say the person either has an ethical problem or isn't smart enought. I'm prepared to put up with the Democrats hashing through the duck hunting controversy if Scalia is nominated, but to attack Thomas's intelligence is shameless.
2d UPDATE: Note the contrast to Joshua Micah Marshall, who without any evidence or reason says that Thomas is "mediocre." Like Reid, Marshall seems unlikely to have read many, if any, of Thomas's opinions. In fact, I'd bet that Marshall and Reid wouldn't even be able to understand many of Thomas's opinions, as he often writes in highly technical areas such as ERISA or corporate tax. Consider this opinion, or this one, or this one, or this one, or this one, or this one, or this dissent.

3d UPDATE: By the way, see this post above for two previously unpublished letters by Senator Cornyn regarding judicial filibusters.

Lewis and Clarke

This recent article from Popular Science had this C.S. Lewis anecdote in an article about sci-fi author Arthur C. Clarke:
As a young man, Clarke was pals with some of Britain’s fastest-rising literary stars, including C.S. Lewis and J.R.R. Tolkien. That was before he made a name for himself in 1953 with Childhood’s End and before he fell in love with the Indian Ocean’s coral reefs. “I came for the sea diving,” he told me of his move to Sri Lanka in 1956. “Underwater was the closest I could come to the weightlessness of space.”

While we talked, something reminded him of his London days, and although he could hardly recall his latest book, conversations from decades ago still rang clear in his mind. “C.S. Lewis! I just remembered our parting words,” he said. “We were at a pub. The Eastgate. Fleet Street.” He leaned back in his chair, chasing the memory down the street and finally cornering it. “Ah,” he continued. “As we staggered out into the street, Lewis turned to us. He said, ‘I think you are very wicked people, but wouldn’t the world be a dull place if everyone was good?’ ”

Clarke laughs uproariously at this gentle rebuke, slapping his desk and shaking his head.

Friday, December 03, 2004

Interesting Article

This looks interesting, although I don't know that VoIP is always "intermodal competition."
Deregulating Telecommunications in Internet Time, Washington & Lee Law Review, Vol. 61, No. 3, 2004

Northwestern University
School of Law

The Telecommunications Act of 1996 has yielded more litigation and less local competition than its supporters expected or intended. Calls for its reform are multiplying. The article diagnoses the 1996 Act's failings and prescribes a framework for reform. The successful deregulations of the transportation industries and of long-distance telecommunications (precedents the 1996 Act sought to follow) demonstrate that the Act should have taken additional steps to promote intermodal telecommunications competition. Transportation deregulation successfully prompted competition where (as in the case of airlines and trucking) multiple firms could compete on an intramodal basis or where (as in the case of railroads) the single firm was subject to intermodal competition from firms using other technologies. The 1996 Act's reliance on the unbundling of incumbent local telephone companies' networks reveals that its supporters thought that portions of the local wireline networks would remain bottlenecks. The lesson, therefore, is that the 1996 Act should have taken additional steps to create the conditions for intermodal competition.

Based on this analysis, the article outlines a new communications law that increases the possibilities for intermodal competition. Indeed, the glimmers of hope for local competition - cell phone substitution and voice-over-Internet-protocol (VoIP) telephony - are intermodal competitors. Although the 1996 Act did move in this direction and the Federal Communications Commission is vigorous on several fronts, more can be done. Spectrum reform (the most significant missed opportunity in the 1996 Act) and other steps would decrease legal and economic barriers to intermodal competition. The article also addresses local and state control of telecommunications carriers, regulatory parity, universal service reform, and government funding of research and infrastructure, and it offers a technology-neutral regulatory scheme for VoIP. The proposed deregulatory agenda seeks a law capable of accommodating the speed and diversity of technological change in this "Internet time."

Thursday, December 02, 2004

Posner's attitude

In a New Yorker profile of Posner, he takes the following view:
Half a dozen times a year, Posner and Charlene will have people over for dinner - often the Chicago economist William Landes, Posner's best friend, and his wife - but, on the whole, Posner prefers to avoid social life. "People don't say interesting things," he says. 'A lot of socializing is just dull - I'd rather read a book. I have a friend, an economist who's Swedish, and he told me that Sweden has terrible television, so people there spend their time visiting each other. But that's worse, because when you watch television you get some information, you even get some moral instruction, you learn to be nice to single mothers or what have you, but socializing, particularly family - well, that is deadly. When you're just talking with your friends about trivia, what's the point?"
It's hard to tell whether he seriously meant that television teaches you to be "nice to single mothers" while family life is "deadly." I suspect that he was joking.

Educational Bureaucracies

Via Professor Plum, Wisconsin education professor Martin Haberman has a long and outraged essay over the state of education in inner cities. A central problem that Haberman identifies: Self-serving bureaucrats in central offices. Here's a key paragraph:
The reason that several hundred thousand of these central office functionaries in 120 districts can get away with, indeed be rewarded for, the unforgivable mass educational killing of children is that these are children of color and children in poverty. If the suburban and small town schools of Wisconsin had a graduation rate of 36% (the current graduation rate for African Americans in my city) there would not be an air of calm “professionalism” in the central offices, or at the school board, or in the streets outside the schools. The parents (and their lawyers) would be engaged in activities that would be closing down the system. The Governor would be calling out the National Guard to protect school property and convening a special session of the state legislature. The President as well as the Secretary of Education would be making personal visits and commitments promising immediate change. The universities, business associations, and community organizations would be holding forums and meetings. Churches would be holding all night vigils. The local foundations would be funding special studies and action task forces. The media would keep the story on page one until the system was changed. If the victims of such horrendous miseducation were white children in small towns and suburbs rather than urban minority children and children in poverty the dysfunctional bureaucracy would not survive one year let alone be allowed to grow even worse every year for over half a century.

Wednesday, December 01, 2004

World Map

This map shows the locations of the readers of this blog. Most are in the expected locations, although I'd be curious to know who's reading this blog on the far western coast of Australia and in the far northern reaches of Canada.