Today it was reported that the US Supreme Court has decided that in most cases, a murder victim's prior communications to the police are inadmissible because the accused murderer has no ability to cross-examine the victim on the statements. The local paper is reporting that this could end up meaning a retrial for Mark Jensen, against whom such a statement was said by jurors to be the sine qua non evidence for conviction.
Having offered the same opinion as the majority of the highest court of the land was offered as evidence of Louis Butler's being unqualified or undeserving to remain on the Wisconsin Supreme Court, in attack ads that successfully removed him from the bench.
But the decision does reflect well on Scalia. This was one of those instances of exactly the type he cited where fealty to his judicial philosophy yielded a decision that was not the desired result for conservatives. The conservative wing of the court was pro-defendant to the man. It was Breyer, Stevens and Kennedy dissenting. It is gross stereotyping to presume that anyone on this court is entirely consistent or blandly predictable either positively or negatively.
Thursday, June 26, 2008
Wednesday, June 25, 2008
McCain's Reward
We already have a publicly funded reward for new inventions designed to promote new technologies. It's called a patent. It's mentioned in the Constitution. John McCain should learn about it.
The Founders realized that innovation was cool: Jefferson prided himself as an inventor. They also respected but didn't completely trust the market. They implicitly understood that there was an appropriate space for the government to shape the market, and one way was by guaranteeing artificially by law that profit from innovations should be exclusive to the inventor for a while so that they would have a stronger mercenary incentive to invent. They left it to Congress to fix the terms in an effective manner.
If there's a technology we want developed, we can muck about with the patent system, or we can mandate it. If we know something is inventable, we can pass technology-forcing regulations that, say, mandate that all vehicles run on super-efficient electric batteries by 2015. Car companies can either develop the tech, or get out of the business and leave it to someone who will. That has worked in the past, but for obvious reasons, business does not like it. So it's easier to sweeten the patent prize.
McCain thinks this is a super-duper technology that it would benefit the public to develop, to the tune of $300 million. Supposing that is so, we should mandate its use, right?
Consider that one of three things is true: (1) the new tech would be very profitable to its developer, or (2) it is of marginal difference, so not worth investing in developing, or (3) it would ultimately be a bigger threat to existing profit streams than it would be an advantage, enough so that's it would be worth developing it or buying the patent just to keep it off the market.
If (1) is true, then an extra reward is unnecessary. It may cause a breakthrough to come marginally sooner, but for the most part, it's just an extra bonus to someone (most likely a Korean business) who already stands to get truckloads of money.
Number (2), although logically possible, is far-fetched in real life. If it is true, then it stands as an extraordinary example of market failure that should make McCain re-examine the economic philosophy he claims to have (although he probably does not really know what it is, or actually have it).
If (3) is true, then McCain's proposal gives a pile of extra money to someone for actually harming the national interest.
The Founders realized that innovation was cool: Jefferson prided himself as an inventor. They also respected but didn't completely trust the market. They implicitly understood that there was an appropriate space for the government to shape the market, and one way was by guaranteeing artificially by law that profit from innovations should be exclusive to the inventor for a while so that they would have a stronger mercenary incentive to invent. They left it to Congress to fix the terms in an effective manner.
If there's a technology we want developed, we can muck about with the patent system, or we can mandate it. If we know something is inventable, we can pass technology-forcing regulations that, say, mandate that all vehicles run on super-efficient electric batteries by 2015. Car companies can either develop the tech, or get out of the business and leave it to someone who will. That has worked in the past, but for obvious reasons, business does not like it. So it's easier to sweeten the patent prize.
McCain thinks this is a super-duper technology that it would benefit the public to develop, to the tune of $300 million. Supposing that is so, we should mandate its use, right?
Consider that one of three things is true: (1) the new tech would be very profitable to its developer, or (2) it is of marginal difference, so not worth investing in developing, or (3) it would ultimately be a bigger threat to existing profit streams than it would be an advantage, enough so that's it would be worth developing it or buying the patent just to keep it off the market.
If (1) is true, then an extra reward is unnecessary. It may cause a breakthrough to come marginally sooner, but for the most part, it's just an extra bonus to someone (most likely a Korean business) who already stands to get truckloads of money.
Number (2), although logically possible, is far-fetched in real life. If it is true, then it stands as an extraordinary example of market failure that should make McCain re-examine the economic philosophy he claims to have (although he probably does not really know what it is, or actually have it).
If (3) is true, then McCain's proposal gives a pile of extra money to someone for actually harming the national interest.
Tuesday, June 24, 2008
More on Scalia
It's been pointed out to me that in his Boumediene dissent, Justice Scalia did some other wierd things:
1) He relied on the supposed "fact" that 30 former Gitmo detainees have committed acts of violence since their release, despite the fact that that "fact" was repudiated by its source, which was, incidentally, the U.S. Department of Defense.
2) He also described them as "returning to the battlefield" which is at best misleading -- most were not picked up on any literal battlefield, but Scalia may just mean the everywhere-battlefield of the global war on terror, which takes place wherever people have a potential to do evil. Even in that sense, it's a stretch, since there is pretty strong evidence that many of our detainees were pro-US in their sympathies, but turned into enemies of America after being kept under our gentle hospitality for several years alongside genuine al Qaeda. It's amazing how much anger you can generate by locking someone up for several years without a hearing, subjecting them to a kangeroo proceeding, torturing them, shitting on their religion, and then suddenly letting them out without any explanation or apology.
3) Of course, it's been noted that the end-of-America fears stoked in the opinion stem from the sought relief of the petitioners merely getting a hearing. Is it that a hearing will result in embarassing disclosures, or is it taken for granted that the petitioners would be granted release because there is no probable cause to detain them, and hasn't been for six years?
4) Finally, why should Scalia care? A few nights ago, he was on Charlie Rose expounding his purpoted adherence to originalism. As Antonin explained to his never-critical, never-skeptical friend Charlie, the trying thing about having a stricy judicial philosophy where the Constitution has a fixed meaning, is that you have no flexibility in your decisions. They are dictated by the philosophy. Hence you have nothing to horse-trade in negotiations, because your position is non-negotiable. Also, you get stuck with outcomes you don't like. Scalia particularly said that as a conservative, he was often forced to take pro-civil liberties views when dealing with prisoners. That's because you don't get to consider your own policy views regarding the effects that your decision will have. You just look at what Madison and the rest of them meant, and you go with it wherever it leads. So, I repeat, why should he care how many Gitmo releasees have gone on to bad things? What does that have to do with the text of the Suppression Clause or the views of Madison and Jefferson?
1) He relied on the supposed "fact" that 30 former Gitmo detainees have committed acts of violence since their release, despite the fact that that "fact" was repudiated by its source, which was, incidentally, the U.S. Department of Defense.
2) He also described them as "returning to the battlefield" which is at best misleading -- most were not picked up on any literal battlefield, but Scalia may just mean the everywhere-battlefield of the global war on terror, which takes place wherever people have a potential to do evil. Even in that sense, it's a stretch, since there is pretty strong evidence that many of our detainees were pro-US in their sympathies, but turned into enemies of America after being kept under our gentle hospitality for several years alongside genuine al Qaeda. It's amazing how much anger you can generate by locking someone up for several years without a hearing, subjecting them to a kangeroo proceeding, torturing them, shitting on their religion, and then suddenly letting them out without any explanation or apology.
3) Of course, it's been noted that the end-of-America fears stoked in the opinion stem from the sought relief of the petitioners merely getting a hearing. Is it that a hearing will result in embarassing disclosures, or is it taken for granted that the petitioners would be granted release because there is no probable cause to detain them, and hasn't been for six years?
4) Finally, why should Scalia care? A few nights ago, he was on Charlie Rose expounding his purpoted adherence to originalism. As Antonin explained to his never-critical, never-skeptical friend Charlie, the trying thing about having a stricy judicial philosophy where the Constitution has a fixed meaning, is that you have no flexibility in your decisions. They are dictated by the philosophy. Hence you have nothing to horse-trade in negotiations, because your position is non-negotiable. Also, you get stuck with outcomes you don't like. Scalia particularly said that as a conservative, he was often forced to take pro-civil liberties views when dealing with prisoners. That's because you don't get to consider your own policy views regarding the effects that your decision will have. You just look at what Madison and the rest of them meant, and you go with it wherever it leads. So, I repeat, why should he care how many Gitmo releasees have gone on to bad things? What does that have to do with the text of the Suppression Clause or the views of Madison and Jefferson?
Thursday, June 19, 2008
Navel Gazing
Seems like it's been a while but I guess it really hasn't been. I have been sitting on a couple of thoughts, but what stirs me to log on is the thing that always gets to me: the stupid local news. Tonight on the WTMJ news with Mike:
Mike talks about an event that happened today. He attended with his wife. There's a picture of him smiling and waving. Now to our interview. Mike finds out that the famous interview subject used to listen to the radio broadcast by the sister station of his TV news station. How about that! Mike tells the celeb what an honor it was to meet the guy. Thanks, Mike. It's really more important to hear your opinion than anything else he might say that isn't somehow about you. And they opened a new lane of highway. This is great news. I know because Mike gave his opinion that it was great news. Also, he smiled so wide at announcing the news that he looked like he'd been drugged, so either he really was on drugs, or this was an intentional means of making absolutely sure that we understood his very strong opinion what great news this was.
Also, I'm not sure how much of what he reported on the McGee trial was what McGee said on tape that was played in court, and how much was Mike's characterization and interpretation of what was played, but in Mike's version, McGee sure must be guilty, so I guess I know where you stand, Mike. Yessiree, I went into that newscast with only a guess of what Mike thought, and now it's like I've met him and his wife and got to know what makes him happy and how he feels about stuff. Just like the local news is supposed to do. Now if I want to know the facts, I can just read a newspaper.
Mike talks about an event that happened today. He attended with his wife. There's a picture of him smiling and waving. Now to our interview. Mike finds out that the famous interview subject used to listen to the radio broadcast by the sister station of his TV news station. How about that! Mike tells the celeb what an honor it was to meet the guy. Thanks, Mike. It's really more important to hear your opinion than anything else he might say that isn't somehow about you. And they opened a new lane of highway. This is great news. I know because Mike gave his opinion that it was great news. Also, he smiled so wide at announcing the news that he looked like he'd been drugged, so either he really was on drugs, or this was an intentional means of making absolutely sure that we understood his very strong opinion what great news this was.
Also, I'm not sure how much of what he reported on the McGee trial was what McGee said on tape that was played in court, and how much was Mike's characterization and interpretation of what was played, but in Mike's version, McGee sure must be guilty, so I guess I know where you stand, Mike. Yessiree, I went into that newscast with only a guess of what Mike thought, and now it's like I've met him and his wife and got to know what makes him happy and how he feels about stuff. Just like the local news is supposed to do. Now if I want to know the facts, I can just read a newspaper.
Sunday, June 15, 2008
Scalia's Derangement
I'm just setting down to read the big Habeas decision from SCOTUS. Thought I'd dash out one point that seems incredibly obvious about one of the dissents. Scalia is a smart guy who says incredibly stupid things, despite access to smart clerks and concurring justices, their clerks, and a community of lawyers who all presumably don't point out these stupidities because of some combination of laziness, subservience or groupthink. The NYT quoted his dissent, which makes a point in passing about the seriousness of the threat America is facing from its enemies in the GWOT. In the third paragraph of his dissent, Scalia says, "one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know the threat is a serious one." I find this remarkable.
Translating, Scalia is saying, look, we've received no evidence here that there is a serious ongoing threat, and we're not going to ask for any. Our chief of intelligence has told us that our enemies are on the ropes, their capacities destroyed, their entire organization on the verge of elimination. We're just going to take for granted that that's a load of political bullshit, and yet when the same government insists that the threat is so serious that it must buttress and barricade the capital city, we choose to accept this without question. In fact, why even refer to these signifiers of danger. All we need to look at is the government's decision to strip its accused enemies of habeas protections. Would they do that if the threat were not severe? Of course not. We're not going to doubt the sincerity or the wisdom of the political branches.
Having assumed at the outset that whatever is done is therefore justified, hence having disposed of every question before the court, Scalia goes on for 24 superfluous pages. This little piece of dicta is nothing less than the virtual repudiation of judicial review. Of course it's all just rhetorical garbage. Scalia will say anything that suits his immediate purposes and backtrack the next day, because it's all activism and no principle.
Translating, Scalia is saying, look, we've received no evidence here that there is a serious ongoing threat, and we're not going to ask for any. Our chief of intelligence has told us that our enemies are on the ropes, their capacities destroyed, their entire organization on the verge of elimination. We're just going to take for granted that that's a load of political bullshit, and yet when the same government insists that the threat is so serious that it must buttress and barricade the capital city, we choose to accept this without question. In fact, why even refer to these signifiers of danger. All we need to look at is the government's decision to strip its accused enemies of habeas protections. Would they do that if the threat were not severe? Of course not. We're not going to doubt the sincerity or the wisdom of the political branches.
Having assumed at the outset that whatever is done is therefore justified, hence having disposed of every question before the court, Scalia goes on for 24 superfluous pages. This little piece of dicta is nothing less than the virtual repudiation of judicial review. Of course it's all just rhetorical garbage. Scalia will say anything that suits his immediate purposes and backtrack the next day, because it's all activism and no principle.
Friday, June 06, 2008
Hillary's Derangement
For a long time, there has been a perspective out there that Hillary, or at least her surrogates, were going out of their way to exploit racism to better position her against Obama. It was and remains a topic on which I remain agnostic. Some of the evidence out there I think is pretty unconvincing, and I think when you have a machine that's speaking a million words a day on a subject, it's easy to build a case for almost anything by cherrypicking statements, but I think it's still a very plausible position. I don't think Hillary is anything close to what we paradigmatically call "a racist" but she obviously is smart enough to see the racial dimensions in what she says, enough to know that they exist at least to some degree in almost anything she could say, so it was always going to be a question of how much one could draw on that strain of thinking without getting queasy over it.
Her extreme tenacity, to the point of ridiculousness, over remaining in contention despite having lost the race irretrievably months ago, relates to the race-baiting charge in two ways, both as a cause and as an effect. This stubborn resolve to fight obviously evinces the kind of passion to win that would tempt her to accept a degree of racist support that she otherwise would not. That is the causal side.
On the effect side, one sees the deep denial of defeat and wonders at what has gotten into her most avid supporters. Getting carried away, locked in a Hillary bubble, being wedded to the historic symbol her victory would represent, they're all poweful. But maybe it's cynical, but I find it very easy to imagine that racial animus is furnishing some of this intensity.
Watching her poison Obama's candidacy by comparing him negatively to McCain; hold a gun to the head of the Party to get her way; arguing incessantly that she should win regardless of what the rules say, and demanding the rules be broken or changed to accommodate her ambitions, her supporters, and her view of the party's interests; and failing to concede after victory has become all but impossible (as it is now and has been for months) and after the mainstream has finally reasoned this, thanks to an absolute majority of delegates won by her opponent; where has one ever seen this? Hostage situations? Suicide cults?
In politics, this kind of resistance to law can work. It plays on mass support of great intensity. I am increasingly reminded of some stalwart recalcitrant like Orval Faubus, placing his body in front of the advancing forces of morality and law, to hold off the inevitable one more day. In his case, the national guard was coming to desegregate the schools. Yesterday it was the Rules Committee voting to allow the imminent desegregation of the presidency. It's an uncomfortable comparison, but apt. Even if it were not apt, it is a comparison that grows in resonance every hour that Hillary does not stand aside to let her biracial opponent pass. When it becomes too evident, it will blight her image indelibly.
Her extreme tenacity, to the point of ridiculousness, over remaining in contention despite having lost the race irretrievably months ago, relates to the race-baiting charge in two ways, both as a cause and as an effect. This stubborn resolve to fight obviously evinces the kind of passion to win that would tempt her to accept a degree of racist support that she otherwise would not. That is the causal side.
On the effect side, one sees the deep denial of defeat and wonders at what has gotten into her most avid supporters. Getting carried away, locked in a Hillary bubble, being wedded to the historic symbol her victory would represent, they're all poweful. But maybe it's cynical, but I find it very easy to imagine that racial animus is furnishing some of this intensity.
Watching her poison Obama's candidacy by comparing him negatively to McCain; hold a gun to the head of the Party to get her way; arguing incessantly that she should win regardless of what the rules say, and demanding the rules be broken or changed to accommodate her ambitions, her supporters, and her view of the party's interests; and failing to concede after victory has become all but impossible (as it is now and has been for months) and after the mainstream has finally reasoned this, thanks to an absolute majority of delegates won by her opponent; where has one ever seen this? Hostage situations? Suicide cults?
In politics, this kind of resistance to law can work. It plays on mass support of great intensity. I am increasingly reminded of some stalwart recalcitrant like Orval Faubus, placing his body in front of the advancing forces of morality and law, to hold off the inevitable one more day. In his case, the national guard was coming to desegregate the schools. Yesterday it was the Rules Committee voting to allow the imminent desegregation of the presidency. It's an uncomfortable comparison, but apt. Even if it were not apt, it is a comparison that grows in resonance every hour that Hillary does not stand aside to let her biracial opponent pass. When it becomes too evident, it will blight her image indelibly.
Thursday, June 05, 2008
Day Whatever
A brief note on the local news tonight. There was a tuition hike throughout the UW system. The station's online text and video reports are different from what I recall seeing on the air. I just wanted to reference the nomenclature here: "schools" versus "colleges" versus "campuses" or "universities." The UW system consists of a central administration, 26 campuses, UW Extension, UW Colleges Online, and maybe some other parts. The campuses include two institutions, UW-Madison and UW-Milwaukee, that grant graduate and professional degrees (each of which has numerous schools and colleges such as the UW School of Law, and UW-Milwaukee College of Letters and Sciences), 11 "comprehensive" campuses with 4-year schools, and the 13 "UW Colleges," which only have freshman and sophomore curricula. There are UW "Centers" in every county that lacks a comprehensive campus or doctoral insitution, which serve the Extension.
So what did the news say? The video online says "students at UW schools will pay more next year" and gives figures for undergrads in Milwaukee and Madison. "Schools" is at best ambiguous, and the sentence suggests all but could mean some. The text is better, clarifying that the increase does not affect the UW Colleges. In the report that I actually heard on TV, there was specific reference to an increase at "colleges" which is at best misleading.
Also, none of these reports, going back to the AP report or the UWS press release, captures the ways in which tuition varies among students at a campus. The press release and AP at least are precise enough to refer to resident undergraduates, whose tuition is lower than out-of-state students or grad students. But a majority of the comprehensive campuses charged differential tuition, attaching greater rates to students of particular schools and colleges. There are also segregated fees that vary by campus, which are paid as part of the tuition bill although they are not technically part of the tuition. And at least when I was a student, there was not just a flat fee to attend, regardless of the credit load. If you took an overload schedule of 21 credits, it cost more than auditing a one-credit summer class. So this idea that your tuition went up X dollars has a lot of built-in assumptions.
So what did the news say? The video online says "students at UW schools will pay more next year" and gives figures for undergrads in Milwaukee and Madison. "Schools" is at best ambiguous, and the sentence suggests all but could mean some. The text is better, clarifying that the increase does not affect the UW Colleges. In the report that I actually heard on TV, there was specific reference to an increase at "colleges" which is at best misleading.
Also, none of these reports, going back to the AP report or the UWS press release, captures the ways in which tuition varies among students at a campus. The press release and AP at least are precise enough to refer to resident undergraduates, whose tuition is lower than out-of-state students or grad students. But a majority of the comprehensive campuses charged differential tuition, attaching greater rates to students of particular schools and colleges. There are also segregated fees that vary by campus, which are paid as part of the tuition bill although they are not technically part of the tuition. And at least when I was a student, there was not just a flat fee to attend, regardless of the credit load. If you took an overload schedule of 21 credits, it cost more than auditing a one-credit summer class. So this idea that your tuition went up X dollars has a lot of built-in assumptions.
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