The Here and Now, Brought to you by Mitch Crawford

A hole in the head

2009-05-05T08:49:00.000-07:00

Ross Douthat doesn't have any idea what he's talking about when he claims that prominent moderate Republicans are really "liberals."

He's flat wrong when he suggests that the Republican party doesn't need socially moderate Northeastern Republicans, like the recently departed Arlen Specter.

And those moderate Republicans voted for "$800 billion in deficit spending" not because they are secretly fiscally liberal, but because they understand that deficit spending is the economically sound government action in minimizing the impact and duration of a financial crisis.

The Republicans have an important role in the recovery, though. While an expansion of the government's balance sheet was a necessary and unavoidable action, a corresponding expansion of the regulatory state could slow the recovery considerably. The bank and auto bailouts were necessary, if extreme actions, but the fact that government had to intervene to save them doesn't mean government knows how best to run them.

The Democrats have a message that excessive financial risk-taking caused the crisis; big-shot CEOs make juicy targets for blame, even though a full accounting has to place responsibility on investors ravenous for financial products with high returns, small-fry mortgage brokers who were flat-out crooks and borrowers who took loans they knew they could never pay back.

We need risk to recover, and the Republicans have to stand against an expansion of federal bureaucracy that will waste tax dollars and kill good businesses.

That should be the message of the new Republican party; conservative orthodoxy on gay marriage and abortion is now a minority position in the United States, and the Republicans can no longer depend on that to win elections for them. Further, the Republican South is no longer solid. Virginia is a swing state. Florida is a swing state. Republicans will have to fight for safe seats in their strongest regions soon, and Douthat's idea that they can just cede the coasts is totally wrong, unless they want to be consigned to permanent minority status.

Sticking Cheese Up Your Nose is First Amendment Speech

2009-04-16T08:35:00.001-07:00

NYTreports that felony charges have been filed against Domino's Pizza employees who made a disturbing YouTube video that shows them sticking cheese up their noses and putting it on a sandwich.

The video has been seen so widely that it has damaged the Domino's brand; nationwide polling went from positive to negative over this video, which the Times said a million people have accessed.

The local authorities charged the employees with "delivering prohibited foods," according to the Times, and the art attached to the article are the employee's mug shots, credited to the police department.

The video itself shouldn't be enough to charge these people, because it doesn't prove that the food was actually served to any customers.

If the defendants are lucky, the video has a time and date stamp that can be checked against the store's records and prove that nobody ordered sandwiches like the ones portrayed in the video on the date the video was made. But if similar sandwiches were ordered, that wouldn't prove that the sandwiches delivered were the sandwiches shown in the video.

The video itself is pure speech, and while it is grounds for investigation of food going out from that Domino's franchise, it's not grounds for a felony charge, unless police have other evidence.

Political pressure probably forced local authorities to do something, but even if the tainted sandwiches were delivered, it will be extremely difficult to prove. Look for the charges to get dismissed pretty swiftly.

On a related note, cheap food prepared by low-paid workers is likely to be the subject of gross pranks. If the worst thing someone has ever put in your food is snot, you're probably pretty lucky. I live in New York City, and I suspect the act of eating that sandwich would expose someone to fewer germs than an average New York subway commute, especially since the sandwich would have been heated after the pranks portrayed in the video, which would kill bacteria.

"Observe and Report"

2009-04-10T22:05:00.001-07:00

A lot of people are upset about the implications of a scene in the new film "Observe and Report," in which a drunken woman played by Anna Faris appears to be unconscious during a scene in which Seth Rogen is having sex with her.

You can see part of the scene in this trailer:

The trailer is probably all the people who are upset about this have seen. To view this as a date rape ignores everything that is going on in "Observe and Report." This is a film about someone who has a grandiose self-perception leading a life that is squalid and pathetic. It's an ugly movie about an ugly person. Jody Hill, the director, compares it to "Taxi Driver" and "The King of Comedy," films in which disturbed protagonists with delusions of grandeur commit sickening acts.

The sexual relationship portrayed isn't Harry and Sally meeting cute; it's a funhouse-mirror distortion of the traditional rom-com coupling. The Anna Faris character is a self-centered, boozy idiot. The Seth Rogen character is a violent, creepy bipolar psycho on a power trip. Obviously, when they get together, it is not going to be the Platonic idea of romantic love. "Observe and Report" isn't that kind of movie.

The joke is that the Sethe Rogen character thinks it is. He thinks he's Prince Charming and she's Sleeping Beauty, when we see that he's really a creepy stalker and she's a trashy idiot. He thinks he's rescuing her, but she's really settling for him because she's afraid to be alone.

When they go out, and she chases pills with shots until she pukes all over herself, he refuses to allow that to alter his idealized view of her, even as the audience is encouraged to be disgusted by the pair of them. The Rogen character also craves approval from his mother, who is a trampy blonde alcoholic, so that adds an extra level of weirdness and discomfort to the whole proceeding.

The suggestion that what transpires between them is a rape doesn't seem to flow organically from the characters; it's interposed by people bringing their own context to the situation, and the people who are most upset about it probably have not seen the movies. There is certainly a grossness at the core of the situation, but in the context presented, it seems pretty clear that she is offering herself sexually, and that he probably would not intentionally force himself on a nonconsenting partner (which would be inconsistent with his approval-seeking and his heroic self-image).

Rather, she's already been the victim of a sex crime; she was assaulted by a flasher in the mall parking lot. As a result, she feels vulnerable, and she concludes that she must protect herself from further victimization by initiating a relationship with the mall security chief, a man she has previously had no interest in. In that context, she's consuming the drugs and alcohol because she has decided to participate in a sex act with the Rogen character, and she doesn't want to do it sober.

The New York Magazine Vulture blog presumes that, because she's severely intoxicated, whatever happens is, therefore, rape. But the Rogen character's designs on the Faris character are completely unambiguous. She isn't getting ambushed while she's unable to resist; she's getting wasted in anticipation of the sex. She may not be enthusiastic about this guy, but that doesn't mean she isn't consenting.

The punchline gag encapsulates the relationship; she is consenting unambiguously, but it nonetheless resembles rape. This is the director's comment on the events leading up to the sex act; the ugliest moment is presented in the ugliest light. We are encouraged to view the characters as uncharitably as possible. It's not apologia, but condemnation.

To construe it otherwise misses the entire point of the film. Unlike typical comedies which encourage the audience to identify with the characters, "Observe and Report" maintains a cold distance. The audience is never supposed to like the Rogen character or share his worldview; his triumphs are revolting rather than cathartic, and his humiliation is mocked rather than shared. The central irony of the movie is the disparity between how the character sees himself and how the audience is encouraged to view him.

The Commercial Virtues of Art

2009-04-06T07:26:00.000-07:00

There's an article in the Times today about how Pixar's new movie "Up" isn't generating the commercial buzz Disney wants. Marketers are upset that the protagonist, an old man who chases a dream of exploring South America, is not marketable. There's no female lead who can sell princess gowns. There's no stuffed doll. There's no Burger-King cup.

The fact that "Up" looks like it's going to be a fantastic, original movie doesn't matter much. Further, the article states, the annoying concern of Pixar's talent for making good movies instead of selling toys is making people doubt the value of Disney's expensive acquisition of Pixar, which positioned Pixar creative guru John Lasseter over the entire Disney animation apparatus.

Prior to the Pixar acquisition, Disney was floundering. It had fallen from "Lion King" highs to critical failures and box office mediocrities like "Home on the Range" and Dreamworks-esque disposables like "Chicken Little," which earned a metacritic rating of 48. Since Pixar's John Lasseter took over the Disney animation studio, the company has released "Meet the Robinsons"which earned a metacritic rating of 61 and "Bolt"which got a meta-rating of 67.

A significant improvement in film quality is a big deal for Disney. Better movies make for more beloved properties with more audience goodwill and better sequel potential that live longer on DVD. The 2004 Dreamworks film "Shark Tale" is the quintessential disposable animation product. Big celebrity voices, including Will Smith, Jack Black, Robert DeNiro and Angelina Jolie. it included rapid-fire pop culture gags that were instantly dated. Forgettable characters. It earned a solid box office, and then the thing dropped off the map. It was a weird antique by the time it came out on DVD, like the summer pop hit that's embarrassing by October. At Amazon, the DVD is now discounted to $7.49 and is ranked 1,176 in movies. Pixar's older "A Bug's Life," with almost no stars (top billing to Phyllis Diller and Dave Foley)is outselling the sharks even though it is still priced at a steep $19.99.

The clear lesson is that movies people love are going to have a better shelf-life. Disney has been raiding its own catalog for home video revenue periodically for years; DVD re-releases of "Snow White," "Sleeping Beauty" and "Pinocchio" are still padding the company's bottom line.

The kids who saw "Shark Tale" in 2004 don't want to watch it again. Their parents don't want to show that movie to their younger kids. Nobody is going to tune in for that if it's run on network television. In ten years, when the kids who saw it in theaters are in college, they won't buy a re-issued DVD. They won't show that movie to their kids. It's a dead film.

"Wall-E" which was a source of anxiety because it contained too little chatter and no celebrity voices. It made many critics' ten-best lists, and it is going to be relevant for decades, which means it's going to be a continuing source of revenue for Disney. "Up" may not be as toy-ready as "Wall-E" but people are going to love it, and movies that people love continue to have value. People will buy that DVD. People will watch that on television. People will want to show it to kids who haven't been born yet.

The "Times" also published an article slobbering over the director of "Night at the Museum," and its upcoming sequel. This movie, which got a meta score of 48, is apparently beloved by almost nobody. Amazon has discounted the DVD of this 2007 summer movie to $10.99, and its sales rank is #660 in movies while Ratatouille, that year's Pixar release, is ranked 129th and is still selling for $20.

"Night" earned big box office and a sequel because it featured Ben Stiller and Owen Wilson, popular stars who earns credibility by doing interesting films in between big, broad comedies. Parents knew that the film would be inoffensive for their children, and the museum setting even promised some vague wholesomeness, though the movie was not educational. Levy, the director, thinks he made a film that made everyone laugh. What he made was an inoffensive afternoon-filler that wasn't interesting enough for anyone to hate.

I can understand why studios and investors want more "Night at the Museum" and less "Up." The value of a beloved movie is extended over a longer term, and gets discounted when you convert it into net present value. The value of a blockbuster is recouped instantly in a big opening weekend that isn't strongly dependent on whether the film is any good.

There's also risk on any film project; a star-studded adaptation of the beloved book "The Golden Compass" exploded in the faces of the producers when the movie flopped. If a big film launches successfully, studios want to be sure to capitalize on a sure-fire sequel, which is why it was necessary to return to Ben Stiller's museum.

But there's certainly a lot to say for Pixar's model, which generates consistently stellar critical responses, blockbuster box office and strong DVD sales, even if every film isn't a merch bonanza like "Finding Nemo."

Anonymous Sources

2009-04-02T08:58:00.000-07:00

This is a few days old, but worth bringing to the attention of anyone who might see it.

The New York Times's ombudsman has taken the paper to task for its use of anonymous sources.

This is something every news reader should be aware of; unattributed comments get used so frequently that readers may not even realize that the decision to use one carries serious ethical implications.

If you saw the last season of "The Wire," or you heard about the Times's experience with disgraced reported Jayson Blair, you know that unattributed comments can be used by unscrupulous reporters to fabricate quotes.

And a star-struck David Brooks recently provided us an example of when a speaker's identity can be a major fact withheld from readers for no good reason; not wanting to spoil a friendly chat with a request for attributable quotes, Brooks quoted Barack Obama anonymously.

Hopefully, this column will lead to change in newsrooms elsewhere, although the quality of journalism is probably not the highest concern in the newspaper business right now.

Koh and Sharia

2009-04-02T08:14:00.000-07:00

Dahlia Lithwick at "Slate" discusses the recent blog panic over the fact that Yale Law School dean Harold Koh, who will be appointed to an administration position may have said that Sharia law could be applied by a US court in an "appropriate case."

This is a relatively noncontroversial legal idea, and the people pretending it's radical are probably being dishonest. However, it seems likely that Koh's statements about US courts interpreting Sharia law are confusing to people unfamiliar with legal practice.

Law varies from state to state, because states' legislatures and court systems are independent of one another.

The governing law of, for example, New York and New Jersey may result in different outcomes. Of course it goes without saying that the governing law of New York and Argentina might instruct different analyses or reach different results.

When a lawsuit is brought in a court, the law of the place of the suit will generally govern, and the defendants can try to object to that in a number of ways. But parties to a contract can agree that any arising disputes will be governed under a certain set of rules.

Federal and state courts in the United States routinely try litigations arising out of foreign-law contracts, and judges apply the foreign law that is applicable. US contract law is that the intent of the parties should govern, and that, accordingly, such choice-of-law clauses are generally valid.

Application of foreign law to such contract disputes is extremely commonplace and uncontroversial. Similarly, even where there is no choice-of-law clause, courts may voluntarily determine that the facts of a case fairly require the application of foreign law, and apply it. This is one check on a plaintiff's ability to choose the jurisdiction where the lawsuit occurs.

Sharia law would just be another set of rules to apply, and no different than any foreign law. My understanding is that, in Europe where there are much larger and less-integrated Muslim populations, Sharia-governed contracts are quite common. Additionally, there is a push in Europe to make Sharia family courts available so that Muslim women can seek divorce and protection from abuse in a fair forum.

It's not inconsistent with any US law to apply a foreign set of substantive rules on the agreement of the parties. Certainly, neither Koh nor anyone else is suggesting that Sharia criminal courts be established in the US, or that non-Muslims who have not entered into Sharia-governed contracts should have Sharia foisted upon their ordinary state-law disputes.

This is a total non-issue.

Unfunny Three Stooges?

2009-03-31T13:16:00.001-07:00

NYMag declares Jim Carrey, Sean Penn and Benicio Del Toro to be unfunny.

Seems like a bum rap to me.

1. Jim Carrey is the new Curly

Obviously, the comedy merits (or lack thereof) of Jim Carrey are, more or less, common knowledge. You like "Ace Ventura" and "Liar, Liar," or you don't.

Carrey is at his best when he downplays the kookiness, as he did in Peter Weir's "The Truman Show." or "Eternal Sunshine of the Spotless Mind" which was directed by Michel Gondry and written by Charlie Kaufman.

Carrey's comic persona has an element of creepiness, exploited to comic effect in Ben Stiller's underappreciated "The Cable Guy." If you liked Stiller's recent "Tropic Thunder," and you haven't seen "Cable Guy," add it to the Netflix queue.

2. Benicio Del Toro is the new Moe

Not an automatic pick for the role, but Del Toro has demonstrated comic talents before.

Benecio managed to do some terrific pratfalls as a crooked cop in Robert Rodriguez's "Sin City," including getting dunked in a toilet. He was similarly effective in Guy Ritchie's comic thriller "Snatch", in which he committed a robbery while dressed as a Hasidic Jew.

But Del Toro's best comic credential is his bizarre turn as Doctor Gonzo in Terry Gilliam's film version of Hunter S. Thompson's "Fear and Loathing in Las Vegas." Del Toro gained forty pounds to play a gun-toting, sex-crazed maniac, tweaked on a fictional drug called adrenochrome. Nothing on Del Toro's resume indicated that he could perform this role, but he subsumed himself in it and matched the chameleon-like Johnny Depp in weirdness.

3. Sean Penn is Larry

Sean Penn is known for his self-seriousness about his politics and his craft. But he was very funny as a neurotic jazz guitarist in Woody Allen's "Sweet and Lowdown."

Populist rage set to derail economic recovery.

2009-03-22T23:01:00.000-07:00

Maybe it wasn't a good idea to stoke a campaign against Wall Street greed, when we were depending on Wall Street greed to fuel our economic recovery. The Obama administration has been seeking private investors to help it buy toxic assets from crippled banks.

No private investors want this stuff under normal market conditions, and the government doesn't want to be responsible for figuring out the prices for the assets, nor does it want the taxpayers to take on all that risk. So, Obama's plan is to use the TARP money to provide incentives for private entities who can invest in this stuff to buy it from the banks that can't get healthy with this stuff on their balance sheets.

The incentive for these private partners is obviously profit. But AIG employees found out this week that making money while in partnership with the government is dangerous.

Of course AIG was bailed out because it would have failed otherwise. The private partners in purchasing these assets aren't failing or getting bailed out. But if they make a lot of money on this, and collect huge fees or pay large bonuses, they know that the distinction is not going to be important to financially strapped taxpayers who will be really angry to see rich guys on Wall Street collecting huge checks from a government-funded plan.

These guys don't want to get perp-walked before a Congressional committee, like $1-per year Edward Liddy did last week. They certainly aren't going to be interested in taking on risk in this deal if they fear Congress is going to pass a tax bill to confiscate any profits they might earn from it.

Obama knows the difference between the partners the administration is trying to attract for the bank rescue and the bailout recipients, but if the profits of these partners become a hot potato, nobody expects the President to expose his neck to explain to voters who are losing their homes how some of the guys collecting seven-figure checks are good guys.

Meanwhile, former New York governor Eliot Spitzer is pretending to be surprised that the bailout funds the government put out to prop up AIG and prevent it from defaulting on its agreements is being used to prop up AIG and prevent it from defaulting on its agreements.

Is the AIG bonus tax a Bill of Attainder?

2009-03-20T15:32:00.000-07:00

Legal blog Above The Law wonders whether the AIG bonus tax is an unconstitutional bill of attainder.

A bill of attainder is a legislative act declaring someone a criminal. Since this confiscation is done through taxation rather than criminal punishment, the bonus tax is not technically a bill of attainder.

The claim that the bonuses are unconstitutional, I think, has to be framed as a violation of the rights to due process and equal protection under the law.

The narrative that the lawyers opposing the tax might use is that this confiscatory act was fueled by violent populist rage, targeted at specific people, and culminated in a confiscation of property from individuals who had no representation, without any trial or finding by a jury, as a punishment.

In support of such an argument, the analogy to a bill of attainder is certainly relevant; what Congress is doing here is arguably precisely what the framers intended to prevent by banning such laws. However, the Constitutional prohibition on such acts doesn't resolve this issue because the bonus tax is technically distinguishable.

The success of such an argument also hinges on whether this tax can be distinguished from taxes that have been upheld in the past (there were constitutional challenges to the income tax).

Regardless, this whole bonus crusade is destructive and idiotic. Grandstanding politicians are pounding a simple and symbolic issue, because they aren't smart enough to address the real problem.

This is wasting the time of officials who need to be working on the plan to get toxic securities off of institutional balance sheets, and its undermining the ability of Obama and the Treasury to operate at a time when they need to be able to act decisively.

The $165 million Congress is trying to claw back is dwarfed by the amount of wealth that has been destroyed while officials were jostling to get in front of television cameras to pretend to be outraged over bonuses everybody knew about weeks ago.

And when all the rage these legislators are stoking gets innocent Americans killed, I hope they can live with that

Madoff and his victims

2009-03-14T11:33:00.000-07:00

Joe Nocera at the New York Times agrees with me that the credulity of Madoff's victims allowed the fraud to happen, and goes so far as to call them accomplices in the threat of their own assets.

I'm not sure that their failure to diversify among managers is really a fault; diversification is supposed to protect investors against fluctuations in a single sector, not against massive fraud on the part of money managers. I feel very bad for the individual investors who lost money to Madoff.

The real accomplices, though, were the institutional investors and the funds-of-funds who funneled money to him and did not figure out what was going on, or those who did, and pulled their money out.

I'm not support the Madoff investors' demands for a bailout though. No other investors who have been punished in this securities market are getting one. I'm sure there are some tragic autoworkers someplace who worked 30 years for GM and put all their savings in company stock, and they're wiped out too. Ownership of company stock was a cultural norm of investment banks, so those guys had their savings and their jobs wiped out at the same time.

Stuff is hard all around.

Better late than never

2009-03-11T11:04:00.000-07:00

In 1861, watchmaker Jonathan Dillon inscribed a secret message into Abraham Lincoln's pocket watch.

In 1906, Dillon told the New York Times that the inscription said "The first gun is fired. Slavery is dead. Thank God we have a President who at least will try."

This week, the Smithsonian cracked open the watch, and found that the watch is actually inscribed: "Jonathan Dillon April 13- 1861 Fort Sumpter was attacked by the rebels on the above date J Dillon. April 13- 1861 Washington thank God we have a government Jonth Dillon."

The Times published a correction to the 1906 article today. That will teach them to trust some guy a hundred years ago.

Here is the Times article about the watch.

Rush to Judgment

2009-03-11T10:13:00.000-07:00

David Frum mentions, in his interesting conservative take-down of Rush Limbaugh, that Republicans dominated the college-educated vote in every presidential election since the inception of exit polling, until 2008, when Obama beat McCain by 8 points among B.A holders.

Reagan also dominated the youth vote, though the pendulum has since swung heavily the other way.

The Republican party's recent attempts to find its own Obama resulted in the unfortunate televised State of the Union response by Bobby Jindal, and RNC chair Michael Steele's awkward and widely mocked attempts to connect to "hip-hop" voters.

In the meantime, Limbaugh has been there to shout as the party floundered for real leadership. The GOP could certainly do with more Frum and less Limbaugh right now.

Madoff and the SEC

2009-03-11T07:55:00.000-07:00

Slate's "Big Money" says Madoff's fraud exposes how bad the SEC was at doing its job. I don't know that this is true.

Sure, the SEC ignored the detailed memo submitted by dogged whistleblower Harry Markopolos, but all those submissions were anonymously submitted, because Markopolos feared retribution by Madoff. Government agencies get a lot of mail from cranks, and it doesn't seem efficient or desirable in a free society to launch federal investigations on the strength of anonymous accusations.

We can regret, in hindsight, that the SEC didn't catch Madoff sooner, but the fact that the SEC didn't launch an investigation over the anonymous Markopolos memo isn't a basis for criticizing the agency; if anonymous tips start bringing down government heat, we'll replace the possibility of an undetected fraud with the certainty of malicious and false anonymous tips damaging honest business.

And it would be unfortunate to tolerate such excess, because we don't need more oversight from the SEC to protect against people like Madoff. He operated with limited oversight because his clientele was rich and sophisticated, and should have been able to watch out for their own interests.

There are a whole lot of specialized entities that only manage money for wealthy and institutional investors, precisely because the SEC allows such funds to operate with little regulatory oversight on the premise that these investors can protect themselves from fraud.

Funds that are managing the savings of ordinary workers and families face much more stringent regulatory scrutiny because these investors are thought to be more vulnerable to fraud and less capable of understanding where their money is going.

But the fact that some sophisticated investors failed to protect themselves doesn't disprove the presumption that they were capable of doing so. Any of the fund managers who were directing capital to Madoff could have done the same analysis Markopolos did.

Increased SEC examination of lightly-regulated funds will consume public resources while destroying the abilities of these funds to develop proprietary investment strategies.

The funds chose to be hedge funds in the first place because they saw more upside to lighter regulatory involvement, even at the cost of closing off sources of capital who the regulators offer higher protections. The sophisticated investors chose to invest with the hedge funds, anticipating higher returns, even though they knew other types of funds offered more regulatory protection for investors.

After 9/11, the government created its new TSA agency to manage airport security. Now, before travelers get on an airplane, they must throw away their toothpaste, strip off their shoes and belts, and often submit to pat-downs. For this embarrassment and inconvenience, travelers get almost zero marginal safety benefit.

Putting similar inconvenient restrictions on investment would probably offer a similarly marginal benefit at the much higher cost of delaying recovery, especially since the Treasury is relying on hedge funds to buy toxic securities as part of its bank rescue.

The lesson of Madoff is greater skepticism of too-good-to-be-true returns and more diligence by investors. It may be appealing to call for a regulatory environment where this sort of thing cannot happen, but the cure would be worse than the disease.

Stem Cell Research

2009-03-09T14:43:00.000-07:00

Congratulations to President Obama for reversing George W. Bush's absurd restrictions on federal funding for embryonic stem cell research.

William Saletan at Slate is concerned we're going to lose our souls over this stuff. He shouldn't worry too much; there's no serious moral problem with this research, because a complete genetic code is a necessary but not sufficient component of humanity. That means that embryos are not people. They're not proto people. They're human genetic material, but they are not human beings.

An embryo lacks agency. It lacks self awareness. It lacks the capacity to experience pain. Insects are more capable of suffering than a human embryo. Moreover, these embryos, leftovers from in vitro fertilization, lack the necessary circumstances to ever become human.

An embryo outside a womb contains a recipe for humanity, but, in the same way that semen expelled in a condition where procreation is impossible, or an ovum expelled from the uterus through menstruation, it this genetic material does not exist in a context where it can become a person.

Even if the embryo were inserted into a hospitable uterus, it is more likely to die than to develop. The embryos that may be used for stem cell research would never have become people.

While there is room for argument over the point in development in which a fetus becomes an entity with moral significance, it's unreasonable to place that point at the moment the sperm and the egg fuse, especially where that occurs outside the human body.

The exaltation of morally insignificant genetic material is a rhetorical position that allows people of certain ideological persuasions to oppose recreational sex, contraception, fertility treatment and abortion.

These 'pro-life' individuals are perfectly willing to forego cures for terrible and deadly diseases to avoid making a rhetorical compromise. If anyone is missing a soul, it's them.

If my soul is in danger, it's because I've eaten the flesh of animals raised in hellish conditions and slaughtered for my consumption. It's because I've purchased products manufactured in foreign factories where wages and conditions are dismal. It's because I've gone about my business while the horrific genocide in the Sudan has raged unchecked.

All this stuff is worth losing sleep over. Tiny bundles of cells in petri dishes are of absolutely no moral concern.

Predicting the "Watchmen" box office

2009-03-09T08:53:00.000-07:00

Slate.com's "Big Money" blog is predicting a $169 million total box office take for "Watchmen" based on the opening weekend gross and the Metacritic score.

I think their total might turn out a little low. Their calculation neglects to consider several major factors: the film's running time, the film's R rating, and the month of release.

Most of the films compared on Slate's chart were June/July releases, which tend to be very front-loaded because, during the summer's movie glut, the blockbusters come in rapid succession, often with only a week to make a mark. Theater booking and marketing is designed to really front-load those releases.

The film's three-hour running time also reduces the number of showings per screen, so there were less screenings of "Watchmen" per screen than there might have been for a shorter movie. That means there are likely to be viewers turned away from sold out shows, who will come back next weekend.

The film's R rating and its source material in a 1980's era comic book may also skew the audience older. Adult viewers are relatively less likely to pack a theater on the release weekend.

On the other hand, "300," a 2006 R-rated March release from the same director, also with mediocre reviews, roughly tripled its opening weekend take, so there may be something to Slate's model.

Neoliberalism

2009-03-09T08:01:00.000-07:00

Fish at the NYT is upset today because he is accused of "Neoliberalism." He characterizes this as an ideology that solves everything with markets, and he points to Ronald Coase as one of its proponents.

Fish seems to want to separate ethics from efficiencies, and that makes no sense. Destroying economic value makes society poorer, and a series of destructive economic decisions collectively make society materially worse-off, increasing misery, poverty and want.

A few Marxists may continue to hold that a relatively wealthier society with high inequality is ethically preferable to a relatively poorer society with less inequality, but otherwise, most ethical frameworks do, in fact, try to preserve things that are of value, rather than destroying them.

A number of philosophers define ethical goods in terms of utility. Neoliberals don't oppose state intervention in markets; they oppose the destruction of value and inefficient mechanisms that prevent utility-maximizing outcomes.

The state is implicitly involved, for example, in the Coase hypothetical involving the factory and the stream, because there has to be a rights framework to determine how the burden will be distributed.

The dispute between the fisherman and the factory is a very direct example of a market failure requiring a legal correction. If there is no state mechanism to protect the fisherman's rights, the factory owner will pollute without regard to the damage to the fish, and the fisherman will bear the cost.

This is an economic externality, where part of the cost of economic behavior is borne by someone who is not a participant. The market will not account for this external cost, and the state must step in to correct the externality.

The notion that efficiency generates the best possible outcome merely instructs the state in how to solve the problem; i.e. by awarding damages to the fisherman, or facilitating a settlement between the factory and the fisherman, instead of allowing the fisherman's livelihood to be destroyed without affording him compensation, or shuttering the factory to preserve the stream.

I assume Fish is being accused of neoliberalism because his previous columns have suggested that academic tenure creates value-destroying situations. This characterization is incorrect; Fish seems to argue against expansive academic freedom and tenure protections as a moral bad. The neoliberal would disagree with Fish, arguing that tenure, which is an agreement mutually reached between universities and professors, is a value-maximizing arrangement in which the benefits of giving the professors broad discretion in their activities and near-immunity from termination exceed the costs.

Academic Freedom

2009-02-16T03:58:00.000-08:00

Stanley Fish at the New York Times is arguing that university professors ought to be subjected to more stringent performance requirements, and should not be protected for reasons of academic freedom. He supports this contention by discussing the misbehavior of an a Canadian professor named Denis Rancourt.

Fish's column this week argues that there is no right to academic freedom that justifies such protections, and he cites court cases where judges have refused to find that there is a testimonial privilege for academics (similar to the privilege protecting attorney-client confidentiality, or the marital privilege). But professors like Rancourt are difficult to terminate because universities enter complicated employment agreements with academics that protect their positions.

Fish points out that there is no constitutional protection for academic behavior, and argues that professors ought not to have autonomy from the 'goals of the enterprise.'
But the degree of control a school has over its faculty is precisely the question that is answered by the existence of tenure.

Fish is right that tenure isn’t a constitutional right. But those professional norms are formalized in contractual agreements, and institutions enter those binding agreements voluntarily, at their discretion. Tenure is a special kind of employee benefit. Rancourt is difficult to dislodge from his position not because he has some kind of special Constitutional protection, but because the university has entered into a contract with him that makes him extremely difficult to fire.

Whether the needs of academic freedom require contractual protections so powerful that they make it impossible to dislodge a faculty member who goes insane is an interesting question, but even if they regret the terms of their agreement with Rancourt, they are bound nonetheless.

Universities are sophisticated negotiators, and their tenure review process provides for intense scrutiny of candidates for tenured positions. There’s no reason why their promises ought to be less binding than anyone else’s.

The tenured professor, similarly, is not beholden to the ‘goals of the enterprise,’ because he has not agreed to be. If that was what universities wanted from professors, they would negotiate different terms into their employment agreements.

The agreements presuppose that the ‘goals of the enterprise’ are suspect, and can be influenced in questionable ways by politically powerful actors. Professors accordingly negotiate for substantial autonomy and job security, and universities agree to grant it. They provide the secretary and the office space and the salary and the tenure protections as consideration in exchange for the professor’s affiliation with the university.

And there certainly is a place for academic freedom; for example, if a donor or a coalition of donors wanted to force a school’s biology department to provide equal time to creationism, tenure would protect biology professors who refused to teach junk science.

Philip K. Howard is wrong. Everybody needs lawyers.

2009-02-02T07:28:00.000-08:00

Dahlia Lithwick at Slate has a review of a book called Life without Lawyers." The book seems to combine complaining about tort suits with advocating deregulation. Lithwick's review digresses into off-point complaining about the Bush administration's treatment of terror detainees.

Here's what I think about this guy's argument:

1) Frivolous lawsuits are very unusual

Frivolous lawsuits are terrific anecdotes for people who are intentionally trying to mislead. In fact, frivolous lawsuits are only borderline relevant to the issues surrounding personal injury torts, because they are infrequent and easily disposed of.

Lawyers who represent injured plaintiffs are paid contingent fees, which means that the lawyer doesn't get paid unless the client recovers money. This means that injury lawyers have a tremendous disincentive to represent clients in frivolous actions; when the case inevitably reaches an unfavorable resolution, the lawyer's work and expenses poured into it will be uncompensated. And in case that isn't disincentive enough, there are various sanctions that can be imposed on frivolous plaintiffs and their attorneys.

The legal system creates plenty of bizarre anecdotes, like the one about the man who sued his dry cleaner for $50 million over lost pants. The cases are generally disposed of quickly, and comprise a miniscule percentage of total tort litigation. Some unscrupulous advocates for reform try to cherry-pick a handful of the most egregious crazy lawsuits to make a point that society is overly litigious or that the legal system is sick in some way.

To assume, based on the existence of this single lawsuit, that courts are clogged with similar disputes is fallacious for the same reason it is incorrect to assume that shopping malls are full of naked dope fiends because a junkie took a nude walk in a mall once.

2) "Less law" or "less lawyers" won't really help

Howard quotes a bunch of random statistics; for example, the fact that Congress passed 70,000 pages of legislation. It appears he is insinuating that the volume of legislation has some sort of causal connection with the increase in tort litigation that Howard contends is occurring. He is lying.

Injury lawsuits and the volume of federal legislation have absolutely no relation to each other. There is a lot more to legislation than injury suits; those 70,000 pages are mostly about how to spend Federal money. Almost none of it is related to tort suit, and Congress certainly isn't rolling out lots of new torts to sue for.

Virtually all personal injury torts are based in state tort law; to imply to lay readers that Congress is spending its time inventing new ways to sue for frivolous personal injuries is a kind of intellectual fraud.

What Howard actually seems to be doing is using unusual anecdotes about tort suits and weird nostalgia for dangerous playground equipment to make a completely obsolete argument for deregulation.

The people who rolled back the regulatory restrictions on Wall Street assumed that more money could be made without burdensome laws getting in the way, and where investors and money managers were allowed to innovate with minimal government intrusion, accountability would take over. The opposite happened.

Hedge funds were allowed to run proprietary "black box" investment strategies because we assumed that the sophisticated (usually institutional) investors who were buying into them could conduct proper diligence and hold them accountable without needing the government looking over everyone's shoulder. That is how Madoff happened.

Deregulation advocates assumed that market incentives could steer participants into efficient decisions without government intervention. Instead, investors and managers took on too much leverage in pursuit of higher profits, and invested heavily and detrimentally in arcane and convoluted financial devices that nobody seems to have understood.

I'm sure Howard's book was written long before the collapse of Lehman, but, as it turns out, the roll-back of law doesn't result in a culture of accountability. It results in catastrophic failure and bailouts. Howard should be mildly embarrassed that his book contains a chapter titled "The Freedom to Take Risks."

Risk, we've learned, is not free. It will take a lot of pages of federal legislation and a lot of lawyers to untangle the mess lightly-regulated and ostensibly accountable people made.

H. L. Mencken and David Brooks on Presidential Politics

2008-08-19T12:49:00.000-07:00

The last couple of weeks of political mudslinging between candidates who most people thought were above this stuff has been really frustrating. David Brooks wrote today about the disappointingly conventional turn McCain's historically unconventional campaigning style has taken.

McCain famously chastised himself in his book "Worth the Fighting For" for an episode during his 2000 presidential campaign in which McCain took a public position contrary to his personal beliefs, siding with conservative defenders of South Carolina's racist state flag in an effort to woo conservative voters.

So it's no surprise that he has seemed uninterested in his campaign's bullshit stunts like mocking Obama's prudent advice on tire-inflation as an energy-saving practice. Tire inflation, as many have noted, will actually make more of an impact on short term fuel expenditures than offshore drilling, which everybody admits will do nothing.

As near as I can tell, McCain's drilling plan is a naked gift to the energy lobby, and will yield no new oil for years. This kind of proposal is nakedly designed to create the illusion of doing something when there is really nothing that can be done, and anything helpful would be too complicated to explain to the average voter. The Clinton "Gas Tax Holiday," which would have saved less money than inflating tires.

McCain probably figures, when it's all over, he'll hate himself less for the compromises it will take to win than he'd hate himself for losing, and maybe he's right that the courageous, honorable, principled John McCain I've admired for years can't beat the crowd pleasing platitudes espoused by Barack Obama (who would be much more interesting if he bore a greater resemblance to Professor Obama of the U Chicago Law School). Personally, I don't see how shoehorning his maverick image into the generic Republican mold could possibly benefit McCain, because generic Republican is in for a beating by generic Democrat this year, and the name-brand Democrat is a lot stronger than John Kerry.

Mencken famously wrote about presidential politics:

"When a candidate for public office faces the voters he does not face men of sense; he faces a mob of men whose chief distinguishing mark is the fact that they are quite incapable of weighing ideas, or even of comprehending any save the most elemental — men whose whole thinking is done in terms of emotion, and whose dominant emotion is dread of what they cannot understand. So confronted, the candidate must either bark with the pack or be lost... All the odds are on the man who is, intrinsically, the most devious and mediocre — the man who can most adeptly disperse the notion that his mind is a virtual vacuum.' The Presidency tends, year by year, to go to such men. As democracy is perfected, the office represents, more and more closely, the inner soul of the people. We move toward a lofty ideal. On some great and glorious day the plain folks of the land will reach their heart's desire at last, and the White House will be adorned by a downright moron."

This is the secret of Karl Rove's succes; he won in 2004 on gay panic, marshalling stupid voters from the pulpits of their stupid churches by seeding swing-state ballots with gay marriage referenda.

Maybe McCain is facing a reality, now verifiable by scientific polling, that shows he has to pander to win this election. If that's true, it means the presidency doesn't merely attract bad or mediocre people like Bush and Kerry and Carter; it ruins good ones like Clinton and McCain.

Maybe that is why Al Gore, a career politician who achieved almost as much as could be achieved in that field only made a genuinely admirable human being out of himself after he left office.

The Dark Knight: Fascist

2008-07-20T13:46:00.000-07:00

This film is being presented as a post 9/11 allegory, and maybe it is, but the message is really unusual and controversial.

The film revolves around three main characters: Bruce Wayne is Batman, a billionaire bachelor who gets his kicks by strapping on body armor and beating up bad guys. The Joker is a psychopath in clown makeup who likes stabbing people and blowing stuff up. And Harvey Dent is the hard-driving district attorney who, after initially providing hope that his organized-crime crackdowns can clean up Gotham, is ultimately disfigured by the Joker and goes crazy, becoming the villain "Two-Face."

In the allegory here, Dent represents orderly process, Batman represents unrestrained force and Joker represents terrorism.

Dent is everyone's ideal of the solution he represents, but, when applied to the Joker problem, Dent falls short. He is ineffective against the threat and ultimately corrupted by it. The idealization of Dent and his fall both inherently reflect the filmmaker's opinion of the institutions he represents. It's all well and good to talk about rights and process and everybody wants that in an ideal world, but in Nolan's worldview those ideals can't go to where the terrorists live and put the jackboots on their throats. This is best exemplefied in the party scene, where, as soon as trouble arrives, Wayne locks Dent in a closet and starts beating the shit out of people.

This isn't countered either, by Dent's early success in locking up a bunch of mobsters; first, that achievement relied on Batman's extrajudicial kidnapping of the mob financier, and, second, that just mirrors the Bush administration-type argument that the Constitution and the mechanisms that operate within it are sufficient for ordinary problems, but that terrorism presents a special circumstance that requires special expansion of executive power.

And, granted, the Joker problem can't be solved costlessly by Batman, but it can't be solved at all by Dent, who is ultimately exploited in service of Joker's agenda. And the ultimate costs are Joker costs, rather than Batman costs; a more reasonable conclusion of this parable is that Batman gets rid of the Joker, but the city is left with a Batman who peers into bedrooms and listens to their private conversations on his Bat-wiretap, and beats up whoever he feels like.

The Joker suggests, at one point, that the Batman is bound by rules, but those rules are far less restrictive than those binding Dent and the rights-respecting process he represents. Yet Batman engages on multiple occasions in illegal and tortuous interrogations, commits a criminal, extrajudiciary kidnapping on foreign soil, and builds a rights-invasive surveillance system with the capability of producing sound and images of the entire city, a system so offensive to the basic notion of personal privacy, that Nolan had to write in Lucius Fox objecting to it on moral grounds. This Batman is the Donald Rumsfeld of superheroes. But Nolan gives a total pass to the scariness of the power exerted by Batman, by portraying Batman as being unfailingly noble and fair in his exertion of extrajudicial force and unwarranted spying.

The guy is about one temptation away from being the worst possible supervillain Gotham could have. Arguably, the only difference between Batman and the villains he fights is that Bruce Wayne's vast legitimate wealth gives him a powerful interest in maintaining stability and the status quo, which counterbalances his vengeful rage over the murder of his parents.

Yet, because Nolan makes him chaste and measured and Christlike, he undercuts the magnitude of the power Batman has seized for himself. Instead of a fascist dictator, Nolan's Batman is a philosopher-king, ultimately sacrificing himself and taking on the mantle of the outcast to protect the reputation of Harvey Dent and be "the hero the city deserves."

As a practical notion, most people to the left of Attilla the Hun would find the notion of this kind of a hero least somewhat troubling, and if Nolan invites us to take Batman seriously, he needs to address these issues.

Best 1000 movies

2008-07-06T16:50:00.000-07:00

The New York Times lists its thousand best movies.

Apparently, the list is only through 2004, so "The Incredibles" and "Ratatouille" weren't snubbed, The list is just outdated.

They like Woody Allen and Alfred Hitchcock and Martin Scorsese. So does everyone. They like Fellini and Kurosawa. So does everyone. They include the better part of the Preston Sturges ouvre as well. Necessary and not to be omitted, but unsurprising.

They take a strong stand in favor of Clint Eastwood, which is more interesting, but you won't find me disagreeing with them on that score.

Some choices seem weird though; Terry Gilliam makes the list with "Brazil" and "The Fisher King." But "12 Monkeys" did not make the list. You might suspect them of a distaste for Bruce Willis, since "Sixth Sense" also missed the list (likely sending M. Night Shyamalan into a temper tantrum). But they paid due homage to "Die Hard," which is as it should be.

They turn up their noses at the summer blockbuster. One slot for "Star Wars." No "Empire Strikes Back." In my opinion, it's a little bit snobbish to give M. Hulot more slots on the list than Obi Won Kenobi and James Bond, who tie up with Inspector Clouseau. The one Bond inclusion, by the way, is for "Goldfinger." On a list of 1000, I would probably find room for "Dr. No," "From Russia With Love," "Thunderball," "Casino Royale" and maybe "The Spy Who Loved Me" or "Goldfinger."

Ridley Scott got skunked; they snubbed "Gladiator" and "Alien," although they included "Aliens," the James Cameron-directed sequel. But Jim shouldn't celebrate too much; there was no room on the list for "Terminator" or "Titanic."

Also omitted, "Jurassic Park," although Spielberg's "A.I" made the cut. I agree with the inclusion of AI; it's a criminally underappreciated film, but if you're worried about saturating the list with a director, you could probably slash Scorsese's weird "The King of Comedy" and Hitchcock's mean-spirited "Frenzy" before Spielberg's great American dinosaur classic.

I can't agree with the exclusion of "Braveheart" however, although it wasn't a complete loss for Mel Gibson, who got on the list with "Chicken Run" and "Mad Max."

The Coen Brothers make the list with "Raising Arizona," "Barton Fink," and "The Man Who Wasn't There." No "Miller's Crossing," however.

Similarly, the inclusion of Alexander Payne's "About Schmidt" while skipping "Election" is bizarre. I think "Sideways" would have been too late for this list.

I liked that they remembered a couple of my favorites, "Rushmore" and "Metropolitan"

I'm not going to go with a full list of the ones I would cut, though "Shrek," "Roger and Me" and "Jerry Maguire" could all take a flyer.

And where is "Lord of the Rings." There's just no excuse for leaving that off.

"Pro-life" Pharmacists

2008-06-16T12:55:00.000-07:00

The Washington Post has a story about pharmacists who will not provide contraception. I don't think you can oppose these guys very strongly or make any serious argument that they should not be permitted to operate, while supporting abortion rights.

It’s worth keeping in mind that the underpinning theory of Roe v. Wade is that the government should not interfere in the exercise of discretion by medical professionals to determine what procedures are approriate to the individual circumstances of each patient.

If you believe that the government should not interfere in a doctor’s decision that abortion is the best treatment option for a patient, then I can’t see how you could simultaneously believe the government should compel these pharmacists to provide a treatment they object to as a matter of professional conscience, even if you disagree with their objection.

The professional freedom of a doctor to provide abortion is exactly the same as the professional freedom of a pharmacist to refuse to stock or distribute a particular treatment. You can support one use of the freedom and disagree with the other, but you can’t reasonably argue that one should be regulated and the other should be protected from regulation.

Pharmacists are professionals. These guys aren’t just desk clerks who hand out pills. The entry to the profession requires six years of higher ed and it’s considered a highly specialized job. The reason for this is, in large part, because the pharmacist faces issues of professional ethics and is expected to be able to make important decisions in the course of his business. These guys are highly-educated and well-paid to be a check on lying, drug-seeking patients and unethical doctors, and to catch medical mistakes that could endanger patients’ lives.

One common and extremely important example of a pharmacist using this discretion is if the same patient presents scrips from different doctors, and the pharmacist believes the doctors have not consulted with each other, may be unaware of the other meds, or that prescribed medications will have some dangerous interactions. In this case, the pharmacist should refuse to fill the scrips.

Similarly, if the pharmacist is getting a lot of scrips from the same doc for a powerful narcotic painkiller like Oxycontin, and he believes the doc is handing out the drug to people who don’t need it and should not be getting it, the pharmacist might refuse to fill the scrips.

Similarly, if patients who are not dangerously overweight are given a powerful prescription weight-loss drug, like the phen-fen/redux combo that was widely handed out in the 90's and turned out to be incredibly dangerous, the pharmacist might exercise his discretion and refuse to fill the scrips.

The central purpose of a pharmacist's job is the exercise of discretion, and while some may disagree with his use of it, his obligation is to his conscience and not to someone else's political agenda.

Blogs and the truth

2008-06-15T17:33:00.000-07:00

While blogs have been around for a while, and the internet has been in use by the public for almost two decades, there's been a lot of recent proliferation of high-speed internet in offices and homes that maybe was not as common four years ago, and there's been a real boom in user-produced content.

Blogs are doing a more sophisticated version of what chain e-mails have been doing for years; dispersing questionable information to a whole lot of eyeballs. This has been used to the detriment of both party nominees:

Barack Obama's wife Michelle has been hit with rumors that she made a derisive reference to "whitey" while participating in a Trinity church panel discussion that included divisive Nation of Islam leader Louis Farrakhan.

This rumor seems to have been a blogger named Larry Johnson who claims to have some unnamed friends who swore to have seen Michelle make these statements on videotape. But as, neither the friends nor the video have been forthcoming it's significantly likely that no such panel discussion ever occurred and that Mrs. Obama never said anything like that.

A similar accusation has dogged Republican nominee John McCain. Writer/blogger Cliff Schecter reports that he has anonymous sources who told Schechter that McCain called his wife Cindy a "cunt" in response to a joke she made about his thinning hair in 1992.

Both attacks rely on anonymous sources. If you ask Johnson or Schecter to verify their accusations, they will tell you that they are relying on the credibility of the sources, and if you ask who the sources are, then the writer is sworn to secrecy on the subject.

It's a mechanism rife for abuse, which is why newspaper and magazine editors have exacting policies on citing to unattributed sources, including independent corroboration. And a reputable newspaper will be very sure it trusts a reporter before it publishes a story by that writer containing unsourced claims. And readers generally know, within reason, which publications they trust not to intentionally promulgate lies.

Blogs have no such safeguards. Johnson and Schecter respectively could have fabricated these claims. No person alive will publicly claim to have heard John McCain call his wife a "cunt" or to have heard Michelle Obama refer to "whitey."

Barack Obama had to dedicate a whole section of his website to fighting the lies and questionable claims people keep making about him. McCain, whose out-of-context soundbites have been fodder for plenty of YouTube videos, will probably add a similar section soon (especially since his website has been redesigned to resemble Obama's).

You also have to wonder what the deal is with blogs who will excoriate one of these unsubstantiated viral smears while promulgating the other. Shame on the authors who publish these attacks and the bloggers who spread them.

Being better and being right means you don't have to lie about the other guy or misrepresent his positions.

This isn't that complicated

2008-06-13T10:09:00.000-07:00

Obama wants to implement payroll taxes above $250,000 in income. He says it's unfair for lower-income earners to pay payroll taxes on every dime they make, while wealthier earners do not pay them on the majority of their income.

The thing is, it's not intended to be progressive. The idea is that you fund your own benefits. This is why people who earned more (and paid more into the system) get a larger benefit even though they are more likely to have retirement savings, investment income and other means of support than lower income workers. Social Security is a mechanism for protecting workers from becoming destitute in retirement or disability due to poor financial judgment or catastrophic events, not a mechanism for wealth redistribution.

If not for Social Security, a lot of people would spend all their money on lottery tickets, and wind up destitute in their old age, or if they became disabled.

What Obama is really proposing is that problem that will occur when the system begins paying out more in benefits than it takes in in taxes should be solved by a special tax on the wealthy.

The $175 hamburger

2008-06-02T11:30:00.000-07:00

The Wall Street Burger Shoppe is hawking a $175 hamburger. Shock and horror has ensued.

First of all, this is clearly a publicity stunt. You can tell because it generates publicity. There are a number of restaurants in major cities where $200 a plate is pretty standard. In general, an expensive meal comprised of Kobe beef, foies gras and truffles would not raise a whole lot of notice.

But if you put it on a brioche bun and call it a burger, the obscenity and excess of extravagant dining is somehow magnified. Of course, that might just be the attraction for the people who will order this thing.

In New York, there is a high concentration of lawyers, consultants and bankers making hundreds of thousands per year, and a fair number of hedge fund and private equity managers who make millions, tens of millions, or even billions at the high end.

And many of the people eating these meals don’t end up carrying the tab, because there are lots of financial transactions that take place over ritzy expense-account lunches and dinners.

Job interviews, deal-closing dinners, performance incentives, deal pitches, celebrations of quarterly earnings, and various other events all trigger expensive restaurant trips on corporate accounts.

Blowing $1500 on dinner for four or five people seems a lot less excessive if it's part of a pitch that wins your company a deal worth millions. Networking in the financial industry can mean big bucks, and rich entertainment budgets for Kobe steaks and $300 bottles of wine are part of how deals get made in the financial industry.

There are also plenty of tourists who are willing to spend money to experience high-end restaurants, plenty of people who want to celebrate major life events or rich bonuses in high style, and people who are just so rich that their wealth will earn more than the cost of the $175 burger while they sit there eating it.

Incidentally, my favorite excessive NYC burger is the ribeye burger at Rare. A comparative bargain at $21.

The Dumbest Generation

2008-06-02T10:24:00.000-07:00

Apparently, my generation is too addled by internet pornography and XBox games to read books, so it's surprising how much attention this one seems to be getting.

A number of recent articles discuss author Mark Bauerlein's central premise, which is that internet social networking tools, the internet generally, movies, television and games are addling young people and making us dumber.

This premise is supported by odd statistics, such as a claim, cited in Newsweek, that only 31% of Americans had "adult literacy" in 2003, down from 40% in 1992. That seemed bizarre, and I googled it.

I assume the citation was to The National Association of Adult Literacy assessment, which was conducted in 1992 and in 2003, and found no significant changes in literacy rates, despite a rapid rise in that period of immigrants who are not native speakers of English, a group that makes up 44% of those lacking basic prose literacy according to the survey.

20% of those failing to meet basic literacy standards suffer from multiple disabilities. About 85% of adults have at least basic literacy in reading tasks and in navigating forms such as job applications, while around 75% can handle quantitative tasks like balancing a checkbook at a basic level or better.

It seems pretty unlikely that that MySpace and Grand Theft Auto cannibalized the time people previously spent reading the newspaper, studying history and contemplating the classics. Not much thought seems to be given to the possibility that the under-30's who are constantly online and the under 30's who can't tell you who the Axis were in World War II are largely exclusive groups.

The real story seems to be the growth of an information elite, and a widening information gap. As AP and college credit options expand for top students, the difference between the education the elite students are getting and the No Child Left Behind, test focused education the bottom half we provide to the bottom half creates a massive gulf in educational accomplishment.

The cultural ignorance that Bauerlein decries is likely less a result of the complacency of an always-connected middle class than a symptom of the increasingly disconnected underclass, who, in many cases do not have computers or internet at home and are being left behind by new technology and the opportunities it creates.

Chuck Palahniuk's "Snuff"

2008-05-20T13:04:00.000-07:00

Chuck Palahniuk's new book came out today.

Palahniuk is the author of nine weird novels exploring similar themes of disaffection, self-destruction, obsessive detail and obsession generarlly, including cult-classic "Fight Club," and "Choke," which is soon to be a movie.

"Snuff" takes place backstage on the set of a porno movie gangbang staged by an aging star named Cassie Wright, who is seeking to break a world record for the most sex acts in a single day. To this end, she's procured, through an open casting call, six hundred men to have sex with her. The book takes place backstage at the gangbang, as these men wait their turn to fuck under the hot lights, with rumors circulating that Wright intends to attain porno/urban legend immortality and create a record that will last forever by getting herself fucked to death.

The four major characters are an over the hill porn stud who is batting cleanup, so to speak, as number 600; a 19 year-old kid, number 72, who believes that he is the long-lost child the woman is rumored to have given up for adoption, a disgraced television actor, number 137, who was publicly outed as a homosexual, and Wright's booking agent and personal assistant who is tasked with wrangling all the meat. The book makes an ironically pointed statement at the beginning about the objectification of women through pornography, because, to each of these characters, Wright is essentially an object, and she represents something different to each of them.

Body grotesquerie is Palahniuk's metier, and this sort of subject matter is his natural habitat. He's fascinated with the things that ooze out of us and the things on us that ooze, with orifices and wounds and infections, with blood and pus and spunk and shit. He meshes ironic detachment and explicit description, and walks the line between disgust and excitement.

His characters are always most alive when they are pummeling each other to hamburger or fucking or popping pimples or masturbating. When they wax expository, the author's voice never seems to vanish, and the character's voice never seems to crystalize. Palahniuk is a wizard at honing descriptive language to create vivid imagery, and he's fond of complicated flashback-based narrative structures, but his interest in his characters often seems almost perfunctory; in this book, as in "Fight Club," he doesn't bother to even give them names. The characters become cyphers for the author.

This weakness crippled Palahniuk's "Haunted." The organizational conceit of that book was that a bunch of characters were locked together in a house after arriving for a sham writer's workshop, and each of them tells his or her story. But, though some of the stories were, individually, very compelling the novel didn't really work, because all the stories sounded like they were written by Chuck Palahniuk.

In "Snuff," similarly the characters alternate in the role of narrator, but they never fully distinguish themselves from each other, and you always see the puppetmaster working the strings. For example, Palahniuk is good at coming up with vivid metaphors, such as an encapsulating comparison of the whole gang-bang enterprise to wiping one's ass from back to front, and accidentally smearing shit all over one's balls. But he puts this observation into the mouth of a character who shouldn't be smart enough or perceptive enough to come up with it, nor should he be disaffected enough from the events to make such an analogy.

The multiple narrators conceit is a way for him to get out of the head of a single character, so the character isn't viewed exclusively on his own terms. But having multiple narrators who are all Chuck Palahniuk is more jarring than a single voice. Palahniuk often resorts to characters doing things to themselves that externalize internal turmoil that they would not necessarily put in words, and, often, he imposes injuries or deformities or physical transformations on his characters which serve as ironic or symbolic statements by the author

This is a central Palahniuk motif. In "Invisible Monsters," the fashion model protagonist manifested the turmoil simmering beneath her perfect exterior by blowing off her lower jaw with a shotgun. In "Fight Club," the masochistic narrator beat a hole in his face in underground fights so his hung open like a jack-o-lantern. In "Lullaby" the protagonist, wounded because he came from a broken home, stomped barefoot on tiny glass models of houses, until his foot was a mass of pus-oozing infection and glass house bits.

Perhaps the best example is "Choke," in which the protagonist, a sex addict who becomes convinced he is the second-coming of Christ, loses a latex sex toy up his ass, obstructing his bowel, so, as his delusions of grandeur escalate, he literally becomes increasingly full of shit.

In "Snuff," the grooming rituals of the aging porn-studs stands similarly, as a contrast to the deterioration of their souls, so they shave and wax their body hair until they bleed, and stain their skin with fake-tan until it crusts over on their fingers and smears onto everything they touch. And the book's conclusion, which I won't divulge, arguably tops "Choke" in physically transforming the characters into symbolic commentaries on themselves.

"Snuff" also continues Palahniuk's habit of ornamenting his fiction with oddball trivia nuggets. In this installment, we get an impromptu lesson in the symbology of prison tattoos, and the suicide habits and workplace-related injuries of movie stars.

All in all, it's a solid Palahniuk novel, but the author isn't exploring much here that's new.

New York's homeless aren't the only parasites in the subway

2008-05-08T14:57:00.000-07:00

Bloodsucking bedbugs have been observed in several subway stations. Those who promote public transportation as a green alternative to driving everywhere in a Hummer should be reminded that public transportation involves exposure not only to the public and their unpleasant odors and appearances, but also to the various ambient wildlife that dwells in their hair and clothes.

When informed by the NY Post reporter that bedbugs had been sighted on subway-station benches, one rider seated on a bench leapt to her feet shrieking. The real question is, why would she sit on that in the first place, when everyone except tourists knows that theose benches are soaked in urine? Dogs walk by them, and dogs have a natural compulsion to pee on everything. Bums sleep on them, and bums are notoriously incontinent, due to the they are frequently mentally-ill and passed out drunk. So sitting on a bench in a subway station is like using a urinal as a drinking fountain.

That's almost as dumb as putting the receiver of a pay telephone near your face.

Rev. Wright and Barack Obama

2008-04-30T07:46:00.000-07:00

Rev. Jeremiah Wright, Barack Obama's pastor, went on a little roadshow this weekend, bringing himself back to the front of the news and embarrassing the candidate. Obama let loose with the denunciation that he refused to mete out last month when videos of Wright's sermons hit the news for the first time.

Some people think invoking Wright as a criticism of Obama is a way to inject racial anxieties into the race. And it's true, you can't automatically attribute Wright's statements to Obama, but Obama did worship in this guy's church for 20 years, so this connection shouldn't be glossed over lightly. Obama's condemnation has been emphatic, but his hand has been forced.

Wright isn't saying anything now that he wasn't saying before, and Obama's claims at being shocked and surprised by Wright's beliefs rings false. I disagree with Wright's claim that his ideology is the universal faith of black people; I think Wright is far to the left of mainstream Democrats and most black voters.

I think he's correct to be progressive on gay rights, but Wright's criticisms of
Israel and his embrace of the Nation of Islam borders on anti-Semitism. Anyone who finds Wright's beliefs offensive has to be concerned about Obama's affiliation with this church. I think race baiting is disgusting, but I don't think invoking Wright against Obama qualifies.

The counterpoints trying to diminish the impact of Wright or to tar other candidates similarly fall flat. There is, for example, a photo of Wright shaking hands with Bill Clinton at a prayer breakfast with clergy members. Wright is a successful preacher with a large Democratic flock, and he draws a lot of political water in Chicago, and that's plenty for a presidential photo op. Nobody is screening the sermons of preachers who shake hands with power, but Obama spent two decades in this guy's pews.

Similarly, Obama's relationship with Wright is far deeper and more important than John McCain's acceptance of an
endorsement from the bizarre Rev. John Hagee, whose bizarre and politically powerful ministry is both a cause of anxiety and a subject of derision.

Hagee and his sort of weird apocalyptic Christianity is disturbing, but taking his endorsement is a different thing entirely from attending his church for decades. I think it would be perfectly acceptable for a candidate to court and seek Wright's endorsement. Running for the presidency requires the assembly of a coalition of disparate groups, and progressive or left-wing groups have a place under the Democratic tent, even though the Democratic party is not a left-wing party.

Likewise, Hagee and his Texas megachurch and the millions he claims hear his sermons on television have a place in the Republican party.

Affiliation with Hagee's church would raise the same sort of objections about a candidate that are being raised about Obama's affiliation with Wright. But John McCain's connection with Hagee is much les significant than Obama's relationship with Wright.

That said, if Wright shuts up and Obama doesn't falter in North Carolina or Indiana, the Republicans may not take the risk of backlash inherent in trying to bring Wright back into the conversation during the general election. So the whole point may be moot.

Free Wesley Snipes

2008-04-28T14:17:00.000-07:00

Considering the outpouring of anger about the outcome of the trial of the officers who shot Sean Bell, I am surprised there has been so little discussion of actor Wesley Snipes's three year sentence for tax evasion.

I agree generally with the availability of prison for tax fraud and other nonviolent white-collar type crimes, because these sort of economic activities can be deterred by the threat of serious punishment. Also, criminal enterprises tend to have substantial off-the-books income, and the ringleaders of those organizations are often difficult to connect with their illicit businesses, but, in some cases can be tied more easily to their dirty money.

However, I don't see what society gains by locking up Snipes for three years. He can't do anything from prison to generate further tax revenues or earn the money to pay back what he owes. Imprisoning him costs tax dollars, instead. He's not a danger to anyone. And while the Daywalker is in jail, we've got nobody to protect us from the vampires.

I think a heavy fine would have been sufficient in this case, and it's not unreasonable to question whether a white celebrity would have been treated differently under these circumstances.

Monkey Business

2008-04-28T13:41:00.000-07:00

Jill over at a blog called Feministe is arguing that the monster in the 1933 movie "King Kong," and, I guess, Peter Jackson's recent remake, is symbolic of white people's fears of black people's sexuality. She's wrong.

I think the interpretation is really labored and clearly the product of someone who goes in looking to support a presumption that there is rampant racism in popular culture.

If King Kong were about a symbolic black man who grabs a white woman and then climbs a giant penis, it would be a pretty poor movie.

The Ann Darrow character is not a white woman endangered by black sexuality. The monster (which does not symbolize a black man) is not sexualized at all. A sexual act between the two of them would be an obvious an obvious physiological impossibility, because King Kong is about 20 feet tall and probably weighs a couple of tons. Comparatively, the woman can sit on the palm of his hand.

Her role is an ironic twist on the endangered female character who was a cliched element of period adventure stories, because, while she is ostensibly menaced by the monster, it is ultimately the woman who brings the monster to ruin.

The Empire State Building and the airplanes are symbolic of man’s conquest of the natural world, and these technological terrors are directly contrasted with the denizens of Skull Island. The film’s structure is neatly divided into the Skull Island half and the New York half, and it shows us Kong battling the mionsters native to each locale.

On Skull Island, Kong rules over the most fearsome creatures nature has ever produced. He is enormous and triumphant. In New York, Kong is dwarfed by and ultimately torn to pieces by the creations of modern man. That’s the point of the movie. The structure and the narrative are designed to elicit that comparison from the audience.

It’s also worth noting that the film was made during the interwar period, long enough after the first World War for people to have realized the terrifying efficiencies of the military technologies deployed in that conflict, and close enough to the second World War for people to be aware that it was going to happen and that it would be even worse.

The Critical Race Theory premise that everything is viewed through the prism of identity simply misleads when applied to King Kong, and to many other things, because race isn’t the only problem, and it isn’t necessarily even the central problem of human or American history.

Kong isn’t a black threat triumpantly conquered by white intellect; he is a monster who is rendered obsolete by man’s own monstrous creation. The airplane was a relatively new development in 1933. It was an immature technology during World War 1, but it was clear that it would play a more central role in the next conflict.

“King Kong” presents a monster who is shown breaking a dinosaur with its bare hands and crushing a man in its jaws, and that monster is ultimately helpless against weapons that would be deployed against soldiers in a war audiences already feared was brewing. There were bigger things to fear in the 1930s than runaway black sexuality. You cannot gloss over the airplanes, and to turn “King Kong” into a racist text, you have to.

I've seen Curly, and you, Sir, are no Curly.

2008-04-24T13:17:00.000-07:00

NYT Columnist Thomas Friedman was hit in the face with a pie.

The throwers are some assholes who call themselves the "Greenwash Guerillas."

I don’t think it’s funny, and I don’t think it contributes to any discourse. I reflexively want to oppose the goals of anyone who resorts to this kind of tactic. I’ve been conscious about reducing my carbon footprint. I have cut way back on beef and I walk everywhere I can. I am assiduous about recycling.

Seeing something like this makes me want to buy an SUV.

Universities should take a stronger line on people who do this. There is too much effort put into bringing people to campuses, and offering a forum for guest speakers is too central to a university’s mission, to allow people to try to silence ideas in this way.

These guys should be charged with assault and kicked out of school.

No, you can't have a dollar.

2008-04-24T10:28:00.000-07:00

CNN is sued by some Chinese people over statements by commentator Jack Cafferty.

Cafferty derided Chinese "junk with the lead paint on them and the poisoned pet food" and said that "They're basically the same bunch of goons and thugs they've been for the last 50 years".

The plaintiffs' claim is that they're insulted. Unfortunately for them, Americans are protected by something called the Constitution which protects you from getting sued for a billion dollars for calling someone a goon.

I can't believe a lawyer took this case.

Hillary keeps going

2008-04-23T11:48:00.000-07:00

Hillary wins by 10 points in Pennsylvania and the Democratic campaign will continue. Howard Dean was looking, recently, for a way to kill her, and many other prominent dems seem to be souring on her.

I still like her better than Obama. As negative as she's gone, I still think the two dirtiest tricks of the campaign were Mitt Romney claiming he could bring the auto industry back to Michigan and the Obama campaign's attempt to stick a "racist" label on Bill Clinton.

Hillary's point that she will have to pitch to uncommitted superdelegates is that Obama can't win. Reverend Wright makes him polarizing, the "bitter" debacle makes him seem aloof and elitist. And he has been unable to close the deal in the big states.

One key point is that if Clinton gets the nomination and offers Obama the VP job, he's likely to take it. It sets him up as heir to the throne in 2016. If he gets the nomination, she may be back in four years if he loses, but an Obama victory in November probably finishes her presidential aspirations. John McCain and Bob Dole can be old and run for President, but trying to make that sale as a 68 year-old woman is going to be extremely hard.

Joe Klein has suggested a possible brokered convention nominating Al Gore. It's an interesting possibility, since it will be difficult to unite the party behind Obama or Clinton now, and McCain is trying hard to poach Democratic voters. I think Gore still wants to be President, despite his protestations otherwise, and I think he sat this one out as a courtesy to the Clintons. If McCain wins, I think he will run in 2012, and if the convention deadlocks, I think he's the go-to compromise candidate.

Democratic Infighting

2008-03-07T19:26:00.000-08:00

I don't know whether this is a splintering of the party or a trial-by-fire for the eventual Democratic nominee.

My opinion is that the Obama campaign is not up to fighting a protracted battle, either with Hillary or the Republicans. I think he entered the campaign to raise his profile, and as this "momentum" built around him, he's run with it. His grassroots support has been extremely strong, his fundraising ability is exemplary, and his stump speech is inspiring and draws the crowds.

But based on these public meltdowns by top aides since Ohio and Texas, the organization built around this candidate doesn't seem to be ready for prime time. And if he doesn't have a top-shelf political staff, it's likely he doesn't have the best policy advisors either. When Hillary says that Obama is not ready to do this job on "Day One," I think there's some validity to that statement.

That said, despite his inexperience and any errors in judgment by his staff, the guy is running ahead of one of the most devastating political machines ever assembled. His younger, tech-savvy base has been built and energized by viral videos and social networking sites that are more effective than traditional ads, and cost nothing.

The will.i.am "Yes We Can" YouTube video and the "ObamaGirl" videos have reached an extraordinary number of people and cost the campaign nothing. This is an important development, and it may be the development that finally awakens the youth vote. Internet video has also dramatically increased the importance of the stump speech.

What used to be limited by the range of the candidate's voice can now be broadcast, in its entirety, worldwide on-demand. And Obama's stump speech is a great one.

Whether Obama built this movement, or whether he just represented the conditions that allowed it to form, he deserves credit for what he's accomplished.

That said, if he loses the nomination at the convention, he can go back to the Senate as a much more prominent figure. Four or eight years from now, he'll still be a fairly young man. If Hillary loses, the party will wonder "what if," and if Hillary wins, he'll burnish his resume as a leader of the party in power.

If he gets the nomination and he loses to McCain, he probably won't get another grasp at that brass ring. And if he feels that "red phone" ads are unacceptably negative, he will have a lot of trouble with the attacks on his national security policy coming from a candidate who is not backpedaling on the Iraq war issue. I also think the Republicans will make an issue of Obama's pastor.

It may be that he is the real deal and he's "fired up and ready to go," and it may be that the kind of passion he inspires in his followers will create a wave that can carry him to the White House. But November is a long way away, and he's going to have to face the press inevitably turning on him, fatigue or backlash among the supporters, and the logistical difficulties of a national campaign.

Academy Awards

2008-02-25T14:05:00.000-08:00

Of the nominated films, "No Country For Old Men" was the film that should have won. "There Will Be Blood" was spellbinding, but, I think, like Paul Thomas Anderson's "Magnolia," ultimately didn't come together into a satisfying narrative.

I've written here before that the thematic arc that has been imposed upon "Blood" by critics, of capitalism and religion locking horns, doesn't quite fit. But it's a measure of the movie's flaws that it's so misunderstood. Most critics have also agreed that it's a film about a pathological misanthrope, but Plainview loves his son, even though he is flawed as a father. And he wants so badly to embrace the man claiming to be his brother that he engages in self-deception to allow himself to do so. I think it's a film about loneliness.

But I walked out of the theater not knowing what it was about at all, and that's the messiness of it. It's dense but unstructured, and the narrative seems to slacken to accomodate the performances.

"No Country" is unsatisfying too. It builds up and then abruptly dissipates, but it's in service of the narrative and of the theme, which is the futility of the efforts of man in the face of fate or chance or God.

Of course, I think "Ratatouille," was the best film this year, and it's a little odd because it is the thematic opposite of "No Country," since the moral of "Ratatouille" was that excellence is vindicated, and the moral of "No Country" is that ability is brought to ruin by chance.

There Will Be Blood

2008-02-21T11:23:00.000-08:00

I'm frustrated by the common critical interpretation that "There Will Be Blood" is about the struggle between commerce and religion. In my opinion, this interpretation of the film's premise attempts to shoehorn it into a conventional structure that does not fit the film, and elevates the importance of the Eli Sunday, the Paul Dano character, while minimizing other characters who are of equal significance.

The narrative premise of "There Will Be Blood," is that Plainview, the Day-Lewis character, advances and protects his interests by attacking potential adversaries with a mercilessness that outstrips the capacity of those enemies to do him real harm. The film is about who Plainview presents himself as, who he sees himself as, and who he really is, and his dealings with Eli Sunday are a piece of that, the same as the disposition of a man fraudulently claiming to be Plainview's brother, and Plainview's vicious dealings with the man from Standard Oil, who attempts to buy out Plainview's stake in the area.

The film's much talked-about final scene is only an escalated version of the resolution of the other story threads, where the audience's identification with Plainview is ruptured as he presses his triumphs further than he needs to.

The central relationship of the film is Plainview's relationship with his adopted son, H.W. His emotional connection to the boy is a raw nerve for him, and this is illustrated clearly in the dealings with both Sunday and with the Standard Oil man, who attempt to use Plainview's connection to the boy to their advantage and end up inciting Plainview's rage.

The irony of the film, and Anderson's final judgment on Plainview, is that, through his cold and unbending nature, he transforms the only person he loves into the only adversary that can destroy him. The last scene between Plainview and Sunday is only a postscript to the confrontation in which H.W. breaks Plainview, illustrating that the experience has left Plainview no less vindictive and dangerous than before.

That being the case, it's not Day-Lewis who Anderson indulges, but Dano, whose character has more screen time than he ought to. Maybe Anderson felt that giving Dano more screen time added to the impact of the final scene, or maybe he just liked watching Dano's entertaining performance. Whatever the reason, the prominence of the Eli Sunday character obscures the real point of the narrative.

I am not a crook.

2008-02-19T12:25:00.000-08:00

In response to an article on Slate characterizing the crooked law firm in the movie "Michael Clayton" as a "devastating critique of the legal profession." It's not. It's just a play on popular misconceptions about the lawyers.

There is a reason that law firms exist as entities external to the clients. We are not them, and our identity, our credibility and our ability to stand for them before the court comes from the fact that we are not them and we are not responsible for their sins.

We have a professional distance from our clients which allows us to be viewed as a trustworthy party by courts or agencies who have every reason to expect the client to lie. We reach agreements between parties who won't sit in the same room with each other.

Once that separation is compromised, we can no longer credibly represent our clients. We don't hire hit men or blow up cars or dispatch "fixers." We don't want to do those things and our clients would never want us to do such things, because we have to be able to represent them before a court, and if we are untrustworthy, we are ineffective.

Bad people doing bad things create legal problems, and people who provide legal services therefore have to work on behalf of people who have done bad things sometimes. As long as an attorney adheres to his ethical duties, he is operating in the service of justice by advocating zealously to the extent of his abilities on behalf of his client. An attorney who defends a guilty or liable client before a court is no more responsible for the client's wrongdoing than a clergy member who absolves a sinner before God.

We can't make the client's problems go away. Once there's a litigation, there is a judge actively involved who is backed by the government and generally capable of doing his job. If the case washes out in a way that's clearly wrong, it's because he was derelict in his responsibility, not because of us.

The problem that drives the lawyer in Michael Clayton crazy is a common one, and simply resolved. If a lawyer discovers an unfavorable document in a client's files, he claims a privilege if he can, which is his responsibility as the client's advocate, and otherwise he discloses the document, which is his duty, and then he tries to muster other evidence to support a narrative that portrays the client in the most favorable light the facts allow.

It's not the easy cases like the one in "Michael Clayton" that drive you crazy. When the client is caught and there's smoking-gun evidence, the system usually functions well enough to prevent capable counsel of extricating the wrongdoer through some sort of legal sleight of hand. The job of the defense counsel is to put the other side's claim through procedural tests to see if he can expose it as bogus, and if it turns out to be legitimate, the lawyer will ordinarily counsel the client to settle.

If the system can't routinely resolve cases like this justly, than the lawyer's guilt in "Michael Clayton" is like the guilt of a thief who swiped some silverware from the dining room on the Titanic.

If lawyers are unhappy or mentally ill, it's not because of our guilt over what our clients. I think part of what makes us unhappy is that we have a doomy professional outlook. When newly engaged lovers are dreaming about living happily ever after, lawyers are tasked with preparing prenup agreements and wills to deal with the disposition of the assets in the event of death or divorce. While businessmen toast the commencement of a new venture, their lawyers negotiate how to divide blame if the enterprise fails, and which creditors will feast first on the carcass in the event of insolvency.

Another source of unhappiness is that our analytical approach to thinking forces us to identify flaws in ideas we'd sometimes prefer to embrace uncritically. You can't stop being a lawyer when you go to church or listen to a political speech. Most of us start out as idealists, and legal training is about systematically puncturing those ideals.

We become incapable of being spontaneous or carefree. We look for rainclouds on a clear day. We are the nagging voice reminding you to get a flu shot. We're the guy at the party trying to get someone to be a designated driver.

The bankers and hedge fund managers are happier because they're optimists and we're pessimists. They look forward to success and we anticipate failure. Whether that's part of what we become by being lawyers or why we become lawyers in the first place is an open question.

Poor People Watch HBO

2008-02-13T12:12:00.000-08:00

People on the political fringe are all up in arms about a NYT Op-Ed showing that poor people in the US are doing pretty well, as measured by the acquisition of consumer goods.

The fact that goods are cheaper doesn't diminish the fact that the ability of the poorest Americans to consume is increasing. Cheap goods increase consumer purchase power in the same way that increasing incomes do. The money people have buys more stuff.

I do think a problem is that poorer people tend to make worse decisions with regard to consumer purchases, and tend to pay more. Historically, poor people have been swindled on furniture and electronics rent-to-own arrangements, which result in them paying much more than an item costs over a period of months, in exchange for the immediate gratification of taking it home with no money down.

While chain-store practices are less predatory, they offer payment plans on big-ticket items that include hefty interest payments. So, while it may be progress that a poor person can own a $900 television, it's unfortunate that it will often cost him $1400. This also indicates the precariousness of an economy driven by the people buying depreciating assets with loans against future earnings.

If they wanted full procedural rights, they shouldn't have been terrorists.

2008-02-13T11:48:00.001-08:00

The New York Times editorial today. I disagree.

If Khalid Shaikh Mohammed had been found in 2003 in a place where ground forces either couldn't capture him before he escaped, or where capture was not possible, the military almost certainly would have deployed aircraft to bomb his location, as it did in the 2006 killing of terrorist leader Abu Musab al-Zarqawi.

That is an option that would never be considered by domestic law enforcement, and was arguably an summary execution with no procedure, but it was not a subject of international criticism and it was considered an appropriate action against a valid military target. Our military enemies have a narrower set of rights than domestic criminal defendants. We can tap their phones, kick in their doors, search their houses, detain them without counsel and kill them in combat without judicial oversight.

The limitations on our dealings with our enemies are defined by international human rights treaties such as the Geneva Convention, which prohibit summary killing and punishment of captives and civilians, but endow no specific procedural rights for captives accused of war crimes. These enemies should not be permitted to avail themselves of the more expansive set of rights granted to criminal defendants under the U.S. Constitution.

There is no way to provide captives taken abroad by the military with the full procedural rights available to domestic criminal defendants who are pursued and captured by law enforcement agencies.

For example, if Khalid Shaikh Mohammed were prosecuted in a U.S. court, he could potentially exclude much of the evidence from the trial because of the circumstances under which it was collected. Wiretaps of foreign terrorists are conducted by military and intelligence agencies, and are not overseen by judges. The military successfully uses information gleaned from intelligence monitoring to raid and bomb terrorist hideouts, but all of this information is inadmissible in a U.S. court because the CIA and the military do not follow the constitutional rules for gathering evidence when engaging in covert monitoring of foreign communications.

Most of the physical evidence collected by the military, such as papers or computers, would be excluded either because it was collected in searches by military personnel that would be considered unconstitutional, or it may have been turned over to other agencies for examination in ways that could create challenges to its admissibility.

All statements made by the defendants would be excluded because they were not given Miranda warnings, and were detained without access to counsel. Additionally, the key tool of prosecutors in breaking up criminal conspiracies like the mafia, which are the closest analog to terrorist groups in conventional law enforcement, is the cooperating witness, a perpetrator who testifies against his compatriots in exchange for leniency. In these cases, we aren't offering deals, so we have no cooperators.

Hearsay evidence is necessary, because credible statements have been made by witnesses who are dead or who cannot be compelled to appear to testify before the tribunal. Also, it is reasonable that there would be serious public safety concerns about airing all the government's knowledge about Al Qaeda in making a case against these men.

There are compelling reasons for relaxing the standards typically maintained in criminal investigations in cases of these detainees, because the campaign against Al Qaeda has been designed around getting the information to stay a step ahead of the terror network and shutting down its ability to operate, rather than following the procedures to build a legal case against its leaders.

These United States had to take the extraordinary and unprecedented measure of going to war to bring these terrorists to justice, because they were beyond the reach of conventional law enforcement. We shouldn't let them off because the soldiers we had to send after them fight wars better than they build prosecutions.

The Mitch Crawford Project: Day One

2008-01-25T20:43:00.000-08:00

I am Mitchell W. Crawford. My friends call me Mitch. I am a writer, artist and aspiring hair-metal singer, because I am totally glam. I also have a lucrative day job in New York City.

This is my space for discussion of news, current events, pop culture, and whatever else seems pressing on a particular day.

I used to consider myself center-left politically, and I am a registered Democrat. Lately, I consider myself center-right, and I am considering voting for a Republican for the first time, ever in the 2008 presidential election. So I am watching the primaries closely.