Saturday, January 31, 2004


Apparently the free comment feature that this blog was using crashed. I'm not sure if I want to spend the time to find and install a new comment feature. So I guess it's gone for good. Feel free to email me via the link over on the right.

Movie Reviewers and Comedies

I have the vague and unsubstantiated impression that movie reviewers aren't often impressed with comedies, at least not as often as they are impressed by serious drama. And it seems to be conventional wisdom that Oscars are more likely to go to serious dramatic roles than to comedic roles.

If this is true, I wonder how much it is caused by the facts that 1) movie reviewers usually watch movies alone, as part of their job, and 2) the fact that comedies are funnier when watched with a group of friends or family. On the latter point, an article in the American Scientist points out that "people are about 30 times more likely to laugh when they are in a social situation than when they are alone." I've noticed this myself: I'm much more likely to laugh at a comedy when I'm watching it with other people, as opposed to the (rare) occasions when I happen to see part of a comedy while flipping channels alone.

Now I honestly don't know how professional movie reviewers watch movies. Perhaps they gather in a group of friends and colleagues whenever they view a film. If so, my theory is shot. But my guess would be that they often watch movies alone -- either sitting by themselves in a theater where everyone else is a stranger, or watching a video or DVD in their offices. If that's true, maybe this causes them to habitually underestimate the humor in comedic movies.

Friday, January 30, 2004

Why I Don't Trust the News

On Wednesday, the D.C. Circuit heard oral arguments in a case challenging a very important rule from the FCC, its so-called Triennial Review Order. (You can read all 569 pages of it here, if you are so inclined.) Here's a passage from the Washington Post's coverage:
The FCC decision is widely viewed to be in conflict with an earlier ruling by the same court that hosted yesterday's hearing. In that ruling, which was authored by Edwards, the court directed the agency to come up with tight guidelines for states to implement local competition rules.
Note the bolded words, because they are 100 percent false. The prior ruling by the same D.C. Circuit panel was authored by Stephen Williams, not by Harry Edwards. It's a ruling with which I'm intimately familiar, as I was clerking for Williams at the time.

Which leads to a broader point: Whenever newspapers write about a subject I'm deeply familiar with, they usually get things wrong. Things that aren't even debatable, and that can be easily checked. It makes you wonder how you can trust what they report about, say, the situation in Iraq, or other subjects that are much more complicated than the simple question of which judge wrote an opinion in a particular case.


Bob Herbert's NY Times op-ed this morning accuses Halliburton of using off-shore subsidiaries to avoid United States taxes:
Halliburton, in an S.E.C. filing in 2000, duly noted that it had a subsidiary incorporated in Vanuatu called Kinhill Kramer (Vanuatu) Ltd.

The company adamantly denies that its offshore subsidiaries are used to shift income out of the U.S. But it's indisputable that somebody is doing a dandy job of limiting Halliburton's tax liability. When I asked how much Halliburton paid in federal income taxes last year, a company spokeswoman, Wendy Hall, said, "After foreign tax credit utilization, we paid just over $15 million to the I.R.S. for our 2002 tax liability."

That is effectively no money at all to an empire like Halliburton. Less than pocket change. Dick Cheney must be having a good laugh over the way his old company, following his road map, is taking the U.S. for such a ride.
Wow. A subsidiary incorporated in Vanuatu. Only $15 million paid in 2002 taxes. Positive proof that Halliiburton is avoiding U.S. taxes. Right?

Well, maybe not. Kinhill was a pre-existing Australian construction company that was acquired by Halliburton in 1997. At that time, it was one of Asia's largest construction firms. In fact, a Google search reveals that prior to 1997, Kinhill had built a "Head Office" in Papua New Guinea, and had been obliquely involved in at least one case before the Supreme Court of Vanuatu. Herbert has literally no evidence whatsoever for implying that Halliburton created some sort of artificial subsidiary in the South Pacific so as to avoid paying United States taxes. Kinhill is a legitimate construction services company that serves the South Pacific and Asian regions, just as it did before being acquired by Halliburton.

Herbert is equally off the mark in complaining that Halliburton paid only $15 million to the United States government in 2002 taxes. While he characterizes $15 million as "less than pocket change" to an "empire like Halliburton," he neglects to mention that, according to financial data easily available on the web, Halliburton reported an operating income loss of $112 million in 2002, and a total net loss of $998 million. (The 2002 10-K is available here.) I'm not a corporate tax lawyer, and I don't know why Halliburton would have paid any income tax in 2002 given that it apparently had no income. But I certainly know more than Herbert, who seems to think that corporations pay taxes based on their revenues.

The real problem with Halliburton? Dick Cheney used to be the CEO. That's it. If he had headed up MTV prior to being Vice-President, the left would be constantly complaining about the latest season of The Real World and the lack of any good music videos these days.

Thursday, January 29, 2004

Saved by the Bell

If you ever wondered what happened to the guy who played "Weasel" from Saved by the Bell: The New Class, look no further. He's at Harvard Law School, and apparently doing quite well for himself.

Why Read Blogs?

Stumbling Tongue asks the question:
Once upon a time I used to read books. Next to my bed there’d be a half-dozen of them, neatly stacked (okay, randomly piled with great slovenliness) in the exact order I’d dropped them from the bed before falling asleep.

Then the internet happened. And the internet was everywhere, so you could always grab a quick read — blogs, magazine articles, Arts & Letters Daily. So quick, so easy. And then the war happend, and I even started following news. For a brief insane moment, I closely followed developments in the utterly predictable and depressing Israeli-Palestinian conflict.

Is there a more irrational act in the world? What was I thinking? Newspapers? What crap. As someone once said, why put into your brain the material they’ll be using to wrap fish the next day? Whoever it was, I wish he’d been there to stop me.

My rediscovery: Ephemeral reading is intellectual junk food. It feeds the habit, not the hunger. My god, genuine books are just so much better. Why are you even reading this now? Why? Why? Why?
I often wonder the same thing.

Tuesday, January 27, 2004


I recently looked up an old law school friend who is from Sudan. He is a Christian from the Dinka tribe in southern Sudan, and had many harrowing stories to tell about the Islamic military government that rules northern Sudan and that has been waging war on the south. I asked him by email what he thought of the recent efforts to negotiate a Sudan peace agreement. Here's his response:
Stuart, I am from one of the disputed areas, Abyei, to be specific.
Disputed is a politically correct term meant to inject a measure of undecidedness on the status of the area. Otherwise if you ask us, the people of Abyei, we are Southerners, Christians or animists, but almost never Muslims. Abyei has suffered the most atrocities of any area throughout the half-century-old civil war, has produced the leadership of the Southern insurgence and continues to be just that. But if you follow the talks in Kenya, the Sudan Government has vowed to keep Abyei unto itself, predominantly because of the oil underneath our soil, a curse masquerading as an economic potential.

I pray the United States does not get taken in by the chicaneries of the fundamentalist regime in Khartoum. While I understand that the nation's interest should predominate, regard should be paid to the current political environment in the Arab and Islamic world.
For more on the Sudan peace talks, go here, here, or here.

I'll never forget sitting in a room with my friend at Harvard, watching a video about the Sudanese civil war. The film showed Bishop Macram Gassis attempting to lead a Christmas service in a southern village. Some people had walked for days in order to attend the service. But the northern army had somehow heard that the service was going to occur, and sent planes to bomb the church. (The northern Muslim army, the narrator said, made a deliberate point of bombing churches, schools, and hospitals in the Christian south.) Fortunately, the people at the service heard the planes coming, and scattered throughout the brush. Still, it was a horrifying film.

Saturday, January 24, 2004


I know, I know, you can't find any modern American politicians who are capable of conducting as serious and statesmanly a campaign as did Lincoln and Douglas in 1858, nor would Lincoln and Douglas themselves find much of an audience today for several hours of debate. Still, even today, can't one expect intelligent people not to waste their time thinking about utterly meaningless trivialities like whether Howard Dean was a bit over-excited in his Iowa concession speech?

Spanking in Canada

This article may explain why some people are generally wary of having the United States sign on to international treaties that could then be used to overrule state and local laws:
In October, a United Nations committee ruled that Canadian law violates the U.N. Convention on the Rights of the Child, and that Canada should 'prohibit all forms of violence against children, however light.' The committee specifically called for abolishing Section 43 [which allows "reasonable" use of spanking by parents].

But if the Supreme Court does strike down the section, a lot of parents are in for a surprise. Spanking would be no different in law from any other common assault, a criminal act punishable by imprisonment for up to five years.

Erik Satie

For no particular reason other than to gratify my own odd sense of humor, I thought I'd draw your attention to some of the writings of the eccentric 20th-century French composer Erik Satie. Here's an autobiographical sketch called "A Day in the Life of a Musician":
An artist must regulate his life.

Here is a time-table of my daily acts. I rise at 7.18; am inspired from 10.23 to 11.47. I lunch at 12.11 and leave the table at 12.14. A healthy ride on horse-back round my domain follows from 1.19 pm to 2.53 pm. Another bout of inspiration from 3.12 to 4.17 pm. From 5 to 6.47 pm various occupations (fencing, reflection, immobility, visits, contemplation, dexterity, natation, etc.)

Dinner is served at 7.16 and finished at 7.20 pm. From 8.19 to 9.59 pm symphonic readings (out loud). I go to bed regularly at 10.37 pm. Once a week (on Tuesdays) I awake with a start at 3.14 am.

My only nourishment consists of food that is white: eggs, sugar, shredded bones, the fat of dead animals, veal, salt, coco-nuts, chicken cooked in white water, mouldy fruit, rice, turnips, sausages in camphor, pastry, cheese (white varieties), cotton salad, and certain kinds of fish (without their skin). I boil my wine and drink it cold mixed with the juice of the Fuschia. I have a good appetite but never talk when eating for fear of strangling myself.

I breathe carefully (a little at a time) and dance very rarely. When walking I hold my ribs and look steadily behind me.

My expression is very serious; when I laugh it is unintentional, and I always apologise very politely.

I sleep with only one eye closed, very profoundly. My bed is round with a hole in it for my head to go through. Every hour a servant takes my temperature and gives me another.
Then there's this description of his scientific methods of composition:
Everyone will tell you I am not a musician. That is correct.

From the very beginning of my career I class myself a phonometrographer. My work is completely phonometrical. Take my Fils des Étoiles, or my Morceaux en forme de Poire, my En habit de Cheval or my Sarabandes - it is evident that musical ideas played no part whatsoever in their composition. Science is the dominating factor.

Besides, I enjoy measuring a sound much more than hearing it. With my phonometer in my hand, I work happily and with confidence.

What haven't I weighed or measured? I've done all Beethoven, all Verdi, etc. It's fascinating.

The first time I used a phonoscope, I examined a B flat of medium size. I can assure you that I have never seen anything so revolting. I called in my man to show it to him.

On my phono-scales a common or garden F sharp registered 93 kilos. It came out of a fat tenor whom I also weighed.

Do you know how to clean sounds? It's a filthy business. Stretching them out is cleaner; indexing them is a meticulous task and needs good eyesight. Here, we are in the realm of pyrophony.

To write my Pièces Froides, I used a caleidophone recorder. It took seven minutes. I called in my man to let him hear them.

I think I can say that phonology is superior to music. There's more variety in it. The financial return is greater, too. I owe my fortune to it.

At all events, with a motodynamophone, even a rather inexperienced phonometrologist can easily note down more sounds that the most skilled musician in the same time, using the same amount of effort. This is how I have been able to write so much.

And so the future lies with philophony.

Thursday, January 22, 2004

More on Door Opening

Steve at Southern Appeal admonishes me that opening doors for women is chivalrous. I'm not disputing that. In fact, I disagree with the argument that holding doors open is generally inefficient. It reminds me of the economists who puzzle over why people give each other Christmas gifts (or any gifts at all), when the value to the recipient is likely to be less than the cost to the gift-giver.1

The answer is obvious: Giving a gift is like telling a person, "I am willing to inconvenience myself so that you might benefit." And people like being told that. So that's why the overall enjoyment that people get from gifts is usually greater the price they themselves would have paid for the item.

Same for door-opening: It's like telling the other person, "I'm willing to inconvenience myself for a few seconds so that you might benefit." If you just look at the net savings (expenditures) of seconds involved, it might seem inefficient. But that calculation ignores the psychic benefit that people get from being given the "gift" of an open door.

BUT -- here's the kicker -- the elevator etiquette that I described below still makes no sense. As I already showed, letting women be the first to get on the elevator doesn't give them any benefit, because they still have to wait for the men to get on. It even disadvantages them because they are stuck at the back when it's time to get off. So holding the elevator door open, in many situations, is like saying, "I'm willing to inconvenience myself so that I might pretend to benefit you, even though you are actually inconvenienced as well." And that makes no sense.

1Joel Waldfogel's 1993 AER article The Deadweight Loss of Christmas seems to have spawned a veritable subfield in the economics literature. More papers include: J. van de Ven, The Economics of the Gift, Carol Horton Tremblay and Victor J. Tremblay, Children and the Economics of Christmas Gift-Giving, Bradley J. Ruffle and Orit Tykocinski, The Deadweight Loss of Christmas: Comment, Bradley J. Ruffle and Todd R. Kaplan, Here's something you never asked for, didn't know existed, and can't easily obtain: A search model of gift giving, and Sara J. Solnick and David Hemenway, The Deadweight Loss of Christmas: Comment.

Wednesday, January 21, 2004

State of the Union

My only comment about the State of the Union: Steroids?!? All that high-flown rhetoric about God placing the desire for freedom in everyone's heart, about the value of democracy, about America not seeking a permission slip from France, followed by a condemnation of steroids?

Holding Doors Open

Via Crescat Sententia, I find this hilarious post by a pseudonymous law student who looks for ways to create efficiency in every-day life:
I have a disturbing obsession with efficiency when performing everyday tasks. When driving, I turn corners faster than is comfortable to avoid slowing the traffic behind me. If I'm dispensing a fountain drink, you're certain to find me standing as far to the left or right as possible so as to avoid blocking anyone else who might be able to pour their drink at the same time. As the above examples suggest, most of my behavior in this area is trivial, requires positive effort on my behalf, and goes completely unnoticed.
Perhaps the reason I found this so funny is that I've often done the exact same things.

The law student goes on, however, to address a more interesting point: Is it efficient to hold open doors for other people? Not to put too fine a point on it, should men hold open doors for women? The law student argues that holding doors open is so inefficient that it is equivalent to mass murder. (I.e., someone who holds a door open for someone else might waste 5 seconds while the other person gains only two seconds; take that 3 seconds wasted, multiply by all the times people hold doors open, and divide by the average number of seconds in a man's life. You get the picture.)

I wonder what this law student would think of a practice common in a building where I used to work. At the elevator banks, there would often be several men and women standing around waiting to go up. When an elevator arrived, the men would usually make an elaborate show of stepping aside the let the women enter the elevator first. Then, if several people were due to get off at the same floor, the men would stand akimbo, put their hands out, hold the elevator door from closing, and let the women out first.

It seemed like a horribly inefficient practice -- much more so than holding open regular doors. At least when one holds open a regular door for a woman, the woman gets to go through first, thereby gaining time and distance on her journey. But when one holds open an elevator door so that the woman can get on first, she doesn't get anywhere more quickly. She's still on the same elevator. In fact, the process of waiting for her to get on first probably wasted everyone's time. And then, because she got on first, the woman is now jammed into the back of the elevator, making it more inconvenient for her to get off at her floor.

Now, when the elevator arrives at a floor (or at ground level) where several people are getting off, it might be at least theoretically true that letting the woman get off first allows her to arrive at her destination more quickly. But this is usually false. In order to let the woman off the elevator first, all the men would have to squirm around for several seconds in order to clear a path for the woman to exit (she was jammed in the back of the elevator, you recall).

So, what we have here seems to be the precise opposite of a Pareto-efficient practice: It makes everyone worse off without benefiting anyone. That's why I myself never engaged in this practice, particularly as to exiting the elevator. I'm 6'4" and 235 pounds, which means I take up a lot of space. I always figured that if I was standing towards the front of the elevator as it traveled, the kindest and most efficient thing I could do was to exit the elevator quickly, rather than blocking everyone's way by trying to allow a woman at the back to exit first.

Friday, January 16, 2004

Interesting stuff

Some interesting stuff I've come across:

* This PBS Newshour transcript of a segment on Sandra Day O'Connor's importance and influence. Participants in the discussion include Kathleen Sullivan (dean of Stanford Law School), Doug Kmiec (who somewhat surprisingly has nothing but good things to say about O'Connor), and John Yoo, who says the following:
The question to ask is should she be the most powerful woman in American history? Should we have an unelected person making these final decisions for American society on a lot of these different questions? And it's true she is a moderate in the sense that she likes to be in the middle. But the problem with that is that makes her very politically powerful. The problem is that she doesn't have any real judicial ideology. She doesn't really have a consistent theory that she brings to the law, she just likes to, I think, be in the middle, to be in the center of a court that's fairly polarized, that makes her the center of attention, people craft arguments at the Supreme Court to appeal just to her. But that isn't really law, is it, that's more politics. It deprives the court of speaking with a consistent, coherent judicial ideology.
* The new issue of City Journal, which includes articles by James Q. Wilson ("What Makes a Terrorist?), Steven Malanga ("The Curse of the Creative Class"), and Heather MacDonald ("The Illegal-Alien Crime Wave").

* The discussion on the proper role of stare decisis in constitutional adjudication, with posts by Michael Rappaport, Larry Solum, and Randy Barnett. Too bad Virginia law professor Caleb Nelson doesn't have a blog; his article on stare decisis is one of the best treatments of the subject (Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1 (2001)).

* The first issue of The New Pantagruel, a brand-new online magazine. Articles include A Tribute to Neil Postman, by Read Mercer Schuchardt; The Idea of a Sabbath Economy: A Theological Framework for Economists, by Norman Wirzba; Let's Roll Over, by Dan Knauss and Caleb Stegall; and much more. The New Pantagruel describes itself as "a quarterly electronic journal run by a cadre of intemperate but friendly Catholics and Protestants who have seen other electronic journals run by Christians, and thought that while they might not be able to do better, they could certainly do no worse."

Wednesday, January 14, 2004

MLK Holiday

My dad just told me something that I never knew -- or had completely forgotten. My home state of Arkansas used to celebrate Robert E. Lee day in January. But eventually, the Arkansas Legislature decided to have a Martin Luther King day as well. Not wanting to have two separate holidays so soon after Christmas and New Year's, the Legislature decided on what you might call a reverse-Solomonic solution: Combine the two holidays. Yes, that's right. Arkansas officially has a "Robert E. Lee/Martin Luther King" holiday this coming Monday.

UPDATE: On further research, I now see that Alabama and Mississippi have the same combined holiday, while Virginia actually used to celebrate Lee/Jackson/King day, including Stonewall Jackson among the honorees as well. Mind-boggling.

Tuesday, January 13, 2004

Cheaper by the Dozen

Steve Martin's new movie Cheaper by the Dozen might be very good. I don't plan to see it, though, on the principle that I shouldn't reward Hollywood for putting out yet another superfluous remake of a classic film.

I can scarcely put into words the resolute contempt with which I avoided seeing Adam Sandler's Mr. Deeds, which was a remake of the classic Gary Cooper/Frank Capra film Mr. Deeds Goes to Town. As one reviewer put it, "What's next? Rob Schneider, Dana Carvey and Sarah Michelle Gellar in The Philadelphia Story? David Spade as Citizen Kane?" Or perhaps Vin Diesel as George Bailey in a remake of It's a Wonderful Life?

Monday, January 12, 2004

A Big Project

Alex Tabarrok at Marginal Revolution asks:
President Bush reputedly asked his big-think guys to come up with a new vision to unify and motivate the nation and they came up with ... a moon base? It's so been there, done that. Going to the moon was one of the greatest accomplishments of mankind but I am not inspired by imitation. Are you?

Hence, I issue this challenge to the blogosphere. What's your big-think idea to unify, motivate and inspire the nation? A moon-base will cost on the order of 200 billion so let's economize and say that the idea should cost 100 billion or less - a better idea and 100 billion to spare! Ideally, the idea should be mostly free of politics and have a strong possibility of success given that the money is spent.
One idea that I've always thought would be really cool would be to drain the world's oceans -- only temporarily, mind you -- so that a bunch of explorers could go see what's really down there. Shipwrecks, geographical formations, Atlantis, a tunnel leading to the earth's core (a la Jules Verne), the creatures from The Abyss, or whatever. Of course the main problem is, what the heck do you do with all that water? My only solution is to build a giant water tank in space, but I'm not sure how feasible that would be.

Sunday, January 11, 2004

NJ Case

My good friend and law school classmate Mark Rienzi has an op-ed on Real Clear Politics discussing a recent New Jersey case in which a new mother abandoned her baby.

Boston Globe

The Boston Globe's weekly "Ideas" section is particularly full of interesting stuff this week: Virginia Postrel has two articles on Friedrich Hayek (here and here), this article traces some seemingly random words in spam email to a 1967 surrealist novel by Russian writer Mikhail Bulgakov, and this article recounts the history of movies about journalists.


David Sucher discusses an "odd and disturbing" segment from an NPR program.

Saturday, January 10, 2004

The Two-Income Trap

Harvard Law professor Elizabeth Warren has gotten lots of publicity for her new book The Two-Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke, in which she argues that middle-income two-earner families have the greatest risk of bankruptcy. (Read reviews and/or interviews in the Harvard Gazette, Salon, Time, the Boston Globe, Harvard Magazine, the Chicago Tribune, and CBS News.)

If you don't feel like buying the book, you can read some of the academic work on which it was apparently based. Warren has just posted two of her recent law review articles on SSRN: Financial Collapse and Class Status: Who Goes Bankrupt?, and The Growing Threat to Middle Class Families.

Friday, January 09, 2004

New Paper on Recess Appointments

The Coalition for a Fair Judiciary has posted a Federalist Society white paper on recess appointments. The paper has five co-authors: James Ho (who works for the Senate Judiciary Committee), Brett McGurk, Tara Ross, Kannon Shanmugam, and me. (My own contribution was rather insignificant, I should say.) You might find interesting the various charts (starting on page 15) that list every known recess appointment in history. Before my involvement with this paper, I hadn't realized that Earl Warren, Potter Stewart, William Brennan, and Oliver Wendell Holmes were all given recess appointments to the Supreme Court, or that JFK had made 25 recess appointments to the federal courts.

UPDATE: You can now find the paper at the Federalist Society's website as well.

Thursday, January 08, 2004

Solum on Formalism

Larry Solum has a long and interesting discussion of constitutional formalism in this post. He argues, somewhat counterintuitively, that the best way to achieve constitutional formalism is for all courts, including the Supreme Court, to maintain a strong form of stare decisis, even though this would mean restricting courts' ability to overrule prior decisions that departed from the Constitution.

I don't have time to discuss his overall point, which I find provocative and well-worth-considering, but I would take issue with this step of his argument:
There is another way in which a concession with respect to vertical stare decisis has important implications for horizontal stare decisis in the Supreme Court. Enforcing a rule of vertical stare decisis requires the Supreme Court to itself adhere to a rule of horizontal stare decisis. Huh? Let me repeat that: if the Supreme Court actually enforces a doctrine of vertical precedent, then it must (at least partially) bind itself by a doctrine of horizontal precedent. Why? Imagine that a Circuit Court disregards a Supreme Court precedent and instead makes a decision based on its prediction of how the Supreme Court would likely decide the case if it were to go up on certiorari. And suppose the appellate judges are a good predictor of how the new formalist Supreme Court would in fact decide the case. What happens next? If the Supreme Court does not follow its own precedents and instead affirms the lower court's decision, then the Supreme Court will have followed the principle of constitutional exclusivism but it will have failed to enforce the rule of vertical stare decisis. If the Court does enforce vertical stare decisis and reverses the lower court that decided on the basis of the original meaning of the text, then the Supreme Court will in effect be following its own prior (and pre-formalist) precedents. The lesson is simple: consistent enforcement of vertical stare decisis requires a substantial degree of adherence to horizontal stare decisis.
Solum has constructed a scenario in which horizontal stare decisis conflicts with vertical stare decisis. Naturally, one version of stare decisis has to win, and one has to lose. But I'm not convinced that the rule of vertical stare decisis must predominate in all cases in order to remain a viable and meaningful rule. It seems to me that the Supreme Court could quite easily say, "In some cases, we might affirm a lower court's decision to depart from our prior precedents because we, in our Supreme authority, have ultimately decided that our own prior precedents were in error on that point. But lower courts will never be able to predict when and where we might decide on such a course of action; therefore the lower courts must still attempt to adhere to the traditional rule of vertical stare decisis, and we'll occasionally take cases just to reverse and embarrass lower courts that try to get ahead of the curve."

Of course, the Supreme Court wouldn't use exactly those words. But the point is that the Court's formulation of vertical stare decisis needn't be so inflexible that it automatically wins in those rare cases where it conflicts with horizontal stare decisis, thereby preventing the Court from overruling an erroneous prior decision.

Wednesday, January 07, 2004

Response to Kleiman

I never responded to Mark Kleiman's response to my response to his response to Stephen Bainbridge's comments on Cardinal Martino's comments on the capture of Saddam. Or something like that.

Anyway, here's Kleiman's substantive point:
I agree with Lewis and Buck that "loving" your neighbor or your enemy doesn't mean "feeling fond of him or saying he is nice when his not." But surely it does mean, as Lewis says it does, "wishing his good." In no possible universe could being humliated [sic] on worldwide TV count as "good" for Saddam Hussein.
I disagree. Being humiliated -- being taken down a notch -- might be the best thing for someone who was so self-absorbed and conceited that he covered his entire country with statues and posters of himself. Christ did say, after all, that "everyone who exalts himself will be humbled." (I'm sure Christ didn't contemplate that the humbling would occur at the hands of the United States Special Forces -- but they'll do in a pinch.)

Tuesday, January 06, 2004

New Blog

The Progress and Freedom Foundation has a new blog focusing on internet and telecommunications issues. Contributors include James DeLong (yes, the father of Brad DeLong), Ray Gifford (former head of the Colorado Public Utility Commission), Randolph May (former Assistant General Counsel for the FCC), and other PFF folks. Definitely worth reading, if you like discussions of regulatory issues.

A Tolkien Version of Barbie and Ken

This has to be one of the worst product tie-in ideas I've ever seen.

UPDATE: I can, however, think of something worse: Barbie and Ken as Mary Magdalene and Christ from Mel Gibson's "The Passion."

New Law Review Articles

Here are two new law review articles on subjects that I find interesting -- welfare economics and property theory. And they are both on hot topics -- the worthiness of redistributive liability rules, and the anti-commons form of property.
Why Kaplow and Shavell's 'Double-Distortion Argument' Articles
Are Wrong


According to an argument that economists denominate the
Double-Distortion Argument, transaction-cost considerations
aside, in an otherwise-Pareto-perfect world, it will be
less-economically-inefficient to redistribute income between
earned-income classes by adjusting taxes on earned income than
by sacrificing economic efficiency by adjusting liability-rules
and damage-rules to make legal outcomes depend on the earned
income of the defendant relative to the earned income of the
plaintiff or by making the price an individual has to pay for
some government-provided good or service depend on the
relationship between his earned income and average earned income
in the society in question. The conclusion of this argument
reflects the fact that, in an otherwise Pareto-perfect world,
both the type of legal-rule adjustment and the type of
government-pricing policy in question (1) will distort the
profitability of labor-leisure choices to the same extent that
it would be distorted by the "distributionally-equivalent" tax
policy and (2) will in addition distort the profitability of
another kind of choice (for example, in the case of an
accident-law adjustment, potential-injurer and potential-victim
avoidance-choices and, in the case of the government-pricing
policy, potential-buyer purchasing choices).

Kaplow and Shavell (KS) make two sets of claims that relate to
this Double-Distortion Argument. The first is the following,
highly-qualified pair of claims: if

(1) one is trying to redistribute resources from the richer to
the poorer or between or among classes that are defined by their
members' "richness" ("poorness") - put more negatively, one is
trying to effectuate a redistribution that is not favored
because it instantiates what KS refer to as "an entitlement to
payment based on desert,"

(2) one has the option of doing so to the extent desired
through tax policy,

(3) transaction-cost considerations can be ignored or do not
favor the conclusion that the legal-rule adjustments needed to
effectuate the desired redistribution will be more economically
efficient than the tax policies needed to do so, and

(4) other Pareto imperfections do not make the relevant
legal-rule adjustments economically efficient (for example, by
offsetting the extra distortion the relevant legal-rule
adjustment generates),


it will always be (A) not only economically efficient but also
morally desirable (B) for any public decisionmaker to reject
choices that would redistribute income from the richer to the
poorer by making liability and damages decisions depend on the
defendant's richness relative to the plaintiff's in ways that
would generate an extra distortion even if it were desirable to
redistribute income from the richer to the poorer. Kaplow and
Shavell's second set of claims is that each of the four
qualifications that their first set of claims contains can be
ignored - i.e., is empirically insignificant.

This article explains why each element of both sets of Kaplow
and Shavell's claims is wrong. First, it argues that Kaplow and
Shavell's highly-qualified set of claims is wrong because it
assumes incorrectly that the greater economic efficiency of a
choice guarantees its moral superiority and because it ignores
the difference between the authorization of "legislators" and
"adjudicators." Then, it argues that even if Kaplow and
Shavell's highly-qualified set of claims were correct, that fact
would not justify their ultimate conclusion that no government
decisionmaker should ever make a non-tax-policy decision that
would sacrifice economic efficiency in an
otherwise-Pareto-perfect world for distributional purposes
because none of the qualifications Kaplow and Shavell's
qualified claims contain can in fact be ignored. More
specifically, the article demonstrates that only one of Kaplow
and Shavell's arguments to the contrary can bear scrutiny and
that the only correct (though inchoate) argument they make for
ignoring a qualification (an argument about the role of judges
in our type of democracy) undermines their assertion that
another qualification is unimportant.

Common Interest Tragedies
Northwestern University Law Review, Vol. 98, 2004

University of Texas School of Law

This paper engages one of the fastest-growing topics in property
theory, the anticommons. The anticommons idea originated in
Frank Michelman's description of a regulatory regime in which
nobody could use a particular resource without the permission of
everyone else. Michael Heller's subsequent construction of a
category of "anticommons property" corresponding to recognizable
resource problems sparked a surge of scholarly interest in the
notion. The anticommons template has now been applied in many
property contexts, from patents to land use. However, some of
the key criteria scholars have offered for identifying an
anticommons and distinguishing it from an ordinary commons
collapse upon scrutiny. The fragility of the existing boundaries
between commons and anticommons points to a larger question that
takes center stage here: How might the universe of common and
interdependent resource problems be most usefully carved up?

In addressing that question, the paper makes three
contributions. First, it develops a functional taxonomy for
categorizing common interest tragedies. This taxonomy breaks
tragedies into categories at the macro level based on the
pattern of strategic interaction they embody, and further
differentiates among tragedies at the micro level based on the
shape of the production function for the resulting surplus or
deficit. Second, the paper explores underappreciated connections
between types of resource-related dilemmas, and highlights the
choices that often must be made between two potential tragedies
in complex, interdependent settings. Third, the paper shows how
the taxonomy developed here offers access to analytic tools for
making such choices. The approach taken here is therefore
designed to provide greater analytical traction on resource
allocation problems, as well as to advance dialogue in this area
of property theory.

Monday, January 05, 2004


So here's a glitch I just found in Google: See the first result that comes up when you search for "Texas Supreme Court."

UPDATE: I guess it's my civic duty to aid Google in finding the right site: Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court -- Texas Supreme Court.

Judicial Pay

The topic of judicial pay is in the news. First, there's Rehnquist's annual report to Congress, in which he complains that Congress failed to "increase the pay of judges beyond a modest cost-of-living adjustment."

Then there's this somewhat biased tidbit from U.S. News and World Report:
Despite a guaranteed job for life, free parking, and cool uniforms, federal judges are still whining about making less than, say, your average Michael Jackson superlawyer. The Supreme Court's chief justice, William Rehnquist, thought he had a deal late last year when Senate leaders and the White House warmed to a plan to 'delink' judicial pay from the minimal annual congressional pay raise and get guaranteed yearly increases on top of their base $142,300-$198,600 salaries. He even thought he'd locked down an immediate hike of an average $25,000. But that was before his pay-plea team met with House Speaker Dennis Hastert. Just before Thanksgiving, we learn, four Supreme Court judges, including Sandra Day O'Connor and Antonin Scalia, had a private sit-down with Hastert to boohoo that lawyers want more money to become judges. His response? 'It's not going to happen,' says a leadership aide. In fact, when Hastert told fellow GOP-ers of the begging session, several grumbled that judges shouldn't get paid better than lawmakers until they start working as hard."
I'd like to see the congressman who does as much real work on his own as does the typical federal judge.

Then there's Howard Bashman's "20 Questions" feature with Judge Tacha of the 10th Circuit, in which she says:
The single most troubling aspect of the salary issue has nothing to do with our living arrangements and basic necessities as judges. It has everything to do with what we are able to do for our children and families. The two issues most often cited are paying for college education and the ability to leave some estate for those we love. The judges I know are far less worried about where they live and what they eat personally than whether they have provided as fully for their families as they had the potential to do. I live in Lawrence, Kansas, but I have four children -- two of whom are currently in private education and one of whom has been in private education. I know firsthand about the agonizing questions that a judge must ask about whether the sacrifice is too much. Though I love my job and have no intention of leaving, I have experienced several fairly sleepless nights over how to meet various tuition responsibilities. Therefore, I think that this is much more than a cost of living issue.

I cannot respond to how many well-known lawyers in private practice have accepted federal court nominations, but I know that there is something of an increasing trend toward nominees who have already been in public service or in academic life. Although these people often make excellent judges, it is important to the diversity on the federal bench that some of our judges come from private practice. Some of the very best judges on my court are those who have had active private practices and have a very firm understanding of litigation in the private law firm context. It would be a serious blow to the federal judiciary if those people were less inclined to come into the judiciary.
I agree with the second paragraph there: Presidents have often appointed practicing lawyers to become federal judges, and they should continue to do so, as practicing lawyers provide a depth of real-world experience to the judiciary. But when successful practicing lawyers are making 3 or 4 or even 10 times as much as a federal judge, the reality is that fewer of them will be willing to be considered for a judgeship. That, in my mind, is the best reason for giving federal judges a pay raise. (The worst reason is provided in Tacha's first paragraph: Paying for their kids' college education. Let the kids pay for their own college education, like many of the rest of us had to do.)

Saturday, January 03, 2004

Kleiman v. Bainbridge

I'm a bit late to the dance on this one, but I've never claimed that my blog was to be dedicated only to the very latest, up-to-the-minute news. So here's what I think about a recent dustup between Mark Kleiman and Stephen Bainbridge. It all began when Cardinal Martino of the Vatican made some ill-considered remarks expressing sympathy for Saddam after his capture:
"I felt pity to see this man destroyed, (the military) looking at his teeth as if he were a cow. They could have spared us these pictures," he said.

"Seeing him like this, a man in his tragedy, despite all the heavy blame he bears, I had a sense of compassion for him," he said in answer to questions about Saddam's arrest.
Bainbridge, like many Catholics, was appalled:
Even with Cardinal's qualifier that Saddam bears "heavy blame," this is still pretty appalling. Despite Christ's teaching that we should love our enemies, it's hard for me to feel "pity" and "compassion" for a mass murderer just because he got his teeth checked on TV.
Which in turn led Kleiman to accuse Bainbridge, in essence, of being a bad Christian:
[Bainbridge] says that he finds it hard to accept the application of what he acknowledges to be black-letter Christianity to the case before him. No doubt that is true; it is hard, just as intense meditation is hard, just as controlling anger or envy or lust or pride is hard. But why should the Professor's perception that the Path laid out by his Teacher is a difficult one lead him to criticize someone else who finds it easier, or at least manageable?

It's not hard to see where the Professor is coming from. Not being enough of a Christian himself to want to love his enemies, Bainbridge doubts that the Cardinal is actually a Christian, and assumes that when Martino says he has compassion for Saddam Hussein despite his crimes, Martino actually means that he doesn't really think Saddam Hussein a criminal. Disbelieving that Martino is capable of loving his enemies, Bainbridge interprets Martino's remark as implying that Martino counts Saddam Hussein among his friends. Since (in non-Christian, worldly reckoning) the friend of my enemy is my enemy, that makes the Cardinal the Professor's enemy, as the Professor sees it.

Now for all I know Bainbridge is right about Martino, and Martino wouldn't feel, or express, compassion for someone whose behavior Martino really disapproved of. But Bainbridge does seem to be saying that, although Jesus of Nazareth was and is God, doing what Jesus said everyone should do makes Martino a bad person.
Bainbridge then updated his original post to respond to Kleiman.

To all of this I'd add: Kleiman seems to think that the Christian ideal of loving one's enemies is equivalent to expressing feelings of extravagantly soft-hearted sentimentalism towards them. This is wrong. Love, properly understood, has nothing to do with soft-hearted sentimentalism. To the contrary, love is perfectly compatible with -- and may even require -- a desire that someone gets exactly what he deserves.

To take a mundane example from everyday life, imagine a set of parents who find that their alcoholic adult son has been arrested for driving with a blood alcohol level of .20. They are utterly mistaken if they think that loving their son means that they should do nothing but sit around and feel sorry for him, or whine about how awful it was that the police forced him to take a Breathalyzer test. A better expression of their love would be for them to say, "Too bad he turned out this way, but maybe getting arrested is just what he deserves; maybe it will shake him up and spur him to finally seek treatment and become a better human being."

C.S. Lewis has an excellent discussion of this in Mere Christianity, where he concludes:

[W]e might try to understand exactly what loving your neighbor as yourself means. I have to love him as I love myself. Well, how exactly do I love myself!

Now that I come to think of it, I have not exactly got a feeling of fondness or affection for myself, and I do not even always enjoy my own society. So apparently "Love your neighbor" does not mean "feel fond of him" or "find him attractive." I ought to have seen that before, because of course, you cannot feel fond of a person by trying. Do 1 think well of myself, think myself a nice chap? Well, I am afraid I sometimes do (and those are, no doubt, my worst moments) but that is not why I love myself. In fact it is the other way round: my self-love makes me think myself nice, but thinking myself nice is not why I love myself. So loving my enemies does not apparently mean thinking them nice either. That is an enormous relief. For a good many people imagine that forgiving your enemies means making out that they are really not such bad fellows after all, when it is quite plain that they are. Go a step further. In my most clear-sighted moments not only do I not think myself a nice man, but I know that I am a very nasty one. I can at look some of the things I have done with loathing and horror. So apparently I am allowed to loathe and hate some of the things my enemies do. Now that I come to think of it, I remember Christian teachers telling me long ago that I must hate a bad man's actions, but not hate the bad man: or as they would say, hate the sin but not the sinner.

For a long time I used to think this is a silly, straw-splitting distinction: how could you hate what a man did and not hate the man? But years later it occurred to me that there was one man to whom I had been doing this all my life--namely myself. However much I might dislike my own cowardice or conceit or greed, I went on loving myself. There had never been the slightest difficulty about it. In fact, the very reason why I hated the things was that I loved the man. Just because I loved myself was sorry to find that I was the sort of man who did those things. Consequently Christianity does not want us to reduce by one atom the hatred we feel for cruelty and treachery. We ought to hate them. Not one word of what we have said about them needs to be unsaid. But it does want us to hate them in the same way in which we hate things in ourselves: being sorry that the man should have done such things, and hoping if it is anyway possible, that somehow, sometime, somewhere, he can be cured and made human again.

* * *

Does loving your enemy mean not punishing him? No, for loving myself does not mean that I ought not to subject myself to punishment -- even to death. If one had committed a murder, the right Christian thing to do would be to give yourself up to the police and be hanged. It is, therefore, in my opinion, perfectly right for a Christian judge to sentence a man to death or a Christian soldier to kill an enemy.

* * *

Even while we kill and punish we must try to feel about the enemy as we feel about ourselves -- to wish that he were not bad, to hope that he may, in this world or another, be cured: in fact, to wish his good. That is what is meant in the Bible by loving him: wishing his good, not feeling fond of him nor saying he is nice when he is not.
So, then, Cardinal Martino would have been expressing true Christian love for his enemy if he had said, "I'm sorry that Saddam, who was created in the image of God, turned out to be such a monstrously evil person. His capture and subsequent treatment do not even approach what he deserves, nor does it compare to the punishment God has in store for him if he doesn't repent for his evil deeds, which I pray he will do forthwith." That would have been a Christian attitude.

Friday, January 02, 2004

Literary Jargon

Modern scholarship on literature is often criticized for its seeming preoccupation with trendy postmodernist jargon. I used to find such criticisms appealing. But lately I've started to be more ambivalent. Lots of fields have their own jargon that is impenetrable to outsiders. If I write in an academic paper that "The TELRIC cost model for UNE prices should no longer be based on a scorched-earth assumption," hardly anyone would understand it, except for people who know something about telecommunications cost models, and they would find it perfectly clear. If I asked, "Must the industry cost function be subadditive in order for regulators to use the Vogelsang-Finsinger mechanism to achieve Ramsey pricing," hardly anyone would understand the question, except for people who are familiar with the regulatory economics literature, who would understand it quite well. If I write that a particular piece of music ends by taking a Neapolitan 6 chord, moving to a V-7 chord in second inversion, and then resolving to I by employing a passing note to a Picardy third, trained musicians will understand what I've said, but no one else will.

So maybe the jargon in literary scholarship is perfectly clear to people who read that sort of thing all the time. Or maybe it's not -- maybe all the jargon really is meant to be obfuscatory, or to gloss over the lack of any real substance. I don't know. The mere fact that the scholarship is difficult for outsiders to understand doesn't tell me all that much about whether there is something there worth understanding.