30 June 2011
I'll say nothing more about cases I've discussed in earlier blog entries, such as STANFORD v. ROCHE, the patent-law case I discussed on June 17.
1) Flores-Villar v. U.S.: This is a sex discrimination case (the sort that Justice Ruth Bader Ginsburg made her reputation litigating in the 1970s) in an immigration context. It came out as a 4-4 decision, because Justice Kagan recused herself. For these particular litigants, that means that the decision of the 9th Circuit Court of Appeals remains the law.
The case turned on a quirk in US law regarding citizenship. A child born out of the US, to a mother who is a US citizen, is a U.S. citizen, regardless of such matters as her marital status or the father's citizenship etc. What then of a child born out of the U.S., to a mother who is not a US citizen, but with a father (acknowledged paternity) who is a U.S. citizen, in circumstances in which the parents are not married?
Under the law, this child is not a citizen of the US unless his citizen father had resided in the U.S. for at least 5 years after his 14th birthday. Thus, by obvious arithmetic, no one can become a US citizen in this way whose father is not at least 19 at the time of the child's birth.
Why are there different rules for citizen fathers than for citizen mothers? Does that violate the equal protection clause of the 14th amendment? This was the contested question -- contested under a body of law known as the "intermediate tier" doctrine, regarding sex discrimination. Such a distinction is seen as suspect, but as somewhat less suspect than racial discrimination. The appellate court upheld the law, and SCOTUS didn't muster the votes to change that.
2) Bond v. United States. This was the federalism case of the term, arising out of a bizaare mis-application of an anti-terrorism statute. Sex-in-the-suburbs. In this case the suburbs of Philadelphia. Carol Anne Bond of Landsdale, PA was ticked off that her husband had impregnated a neighbor, and struck back by placing caustic substances on various surfaces she knew the Jezebel in question was likely to touch, including Jezebel's car door and mailbox.
Bond was convicted of a federal crime, violating the Chemical Weapons Convention Implementation Act of 1998. You can almost hear her introducing herself to the other inmates. "I'm Bond. Carol Bond."
The decision, by Justice Kennedy, used some sweeping pro-10th-amendment language, explicitly giving the right to "vindicate" 10th amendment interests to individuals. "Her rights in this regard do not belong to a state."
It is possible that the Court expects that next term it will overturn Obamacare or crucial parts of it on federalism grounds, and it saw this case as a helpful set-up to that decision.
3) Skinner v., Switzer. A petition for a Texas inmate on death row. Always dramatic. In this case, it was Justice Ginsburg who wrote a 6 to 3 opinion that said that convicted inmates seeking access to DNA evidence in an effort to prove their innocence may use a federal civil-rights lawsuit in order to do so.
4) Boeing v. United States. The court somewhat limited the range of the "state secrets" doctrine in the course of contract disputes. Further, hearteningly (for those of us who are not lovers of "state secrets" in general) it did so unanimously, in an opinion by Justice Scalia.
It is a rare case involving a defense-industry contracts dispute that draws such a range of amicus briefs, including a brief from the Al-Haramain Islamic Foundation Inc., "in support of neither party," in which the Foundation's lawyers maintained that the court should inquire into the foundations of the state secrets doctrine itself, and should characterize it as a "common-law evidentiary rule of nonconstitutional provenance."
I don't see any place in the opinion where Scalia takes them up on that. He sticks to his knitting, in an opinion that declines to enforce a contract against private parties in a situation in which the invocation of the state-secret doctrine has precluded a prima facie valid defense to the governments claims.
5) Brown v. Entertainment Merchants Assn. Sale of video games to minors comes under the protection of the first amendment.
The cool thing about this case is that earlier in the proceedings it was known as Schwarzenegger v. Entertainment Merchants. Given subsequent revelations, the puns there write themselves.
The really big case of the term ... tomorrow.
26 June 2011
25 June 2011
Hayek's essay of this title was published in the very same year as the Goldwater book I've been examining: 1960. Hayek said that in our day (in this respect, he speaks even more to ours than to his own) "movements that are thought to be progressive advocate further encroachments on individual liberty." A conservative and a real liberal, a defender of individual, may well be thrown together in mutual opposition to those progressive movements which may call themselves liberal.
But Hayek also said that the problem with conservatism is that it offers no alternative. "Let-us-keep- the-good-things-we-have" is not an alternative to change, because the world will necessarily change, and the real struggle has to be over the direction of change. Toward more liberty, or toward less?
Hayek wrote, "the tug of war between conservatives amd progressives can only affect the speed, not the direction, of contemporary developments."
That sentence echoes remarkably Goldwaters sentence, written at roughly the same time, about how the trouble with liberals is that they are in a hurry. That is just what Hayek warned us conservatives would falsely say the trouble with "liberals" -- the folks he called progressives -- is. The real trouble, on the other hand, is that the progressives are pulling us in the wrong direction.
I am reminded of a buddy of mine in college who was arrested for drunk driving. That was the 1970s, and -- so long as no one was hurt -- drunk driving was not yet regarded as the horrendous offense it is nowadays taken to be. It was under the general category stupid-college-kid offense.
Anyway, my buddy was driving along a sidewalk when he was arrested -- which made the breathalyzer test almost entirely unnecessary. The next day, after I bailed him out, he complained to me that among the 6 or 7 charges for which the police officer had written him up, there was "speeding." This was too much. How could he have been speeding when he was driving on a place he shouldn't have been driving on at any rate!
I'm not, BTW, making fun of DWI offenses. I was simply amused by my friend's indignation, and it comes back to me now because Hayek was offering in all seriousness -- and I think rightly -- the same complaint against the Goldwaters of the world. They should not pretend that any part of the offense is speeding. The problem is that progressives have us on a sidewalk!
This problem won't be resolved by complaints that suggest that a slower rate of speed on the sidewalk would be okay.
So: what are we to say about Goldwater's opposition to Brown v. Board? Does it tell us anything beyond that one historic incident? It tells us, I submit, that at a time when the progressive agenda demanded the end to Jim Crow, the conservative attitude reflexively defended Jim Crow. Of course, many people defended Jim Crow out of self-interest. It helped a lot of white people avoid competition in the job market, for example. The privileged generally abstain from challenging the grounds of their privilege. But even those who lived in states without Jim Crow often reflexively defended the system, or opposed its opponents, out of the knee-jerk reflex Hayek understood.
It tells us, also, that when the progressives won that one, when Jim Crow was dead, conservatives in time came along, and posed as the true defenders of equality of opportunity for the Linda Browns of the world-- not because their principles had changed, but because the real objection posed by those principles had been one of velocity, and that is irrelevant given an accomplished fact.
A true liberal -- a believer in liberty, and in such forms of progress as serve liberty, consistent with the preserving of such liberty as has been attained -- would have found the root of the problem in the whole notion of mandatory public education. Naturally, if there are government-run mandatory schools, if taxes are used to pay for them, if people under an arbitrary age are ordered to attend them absent specific state-sponsored exemptions -- then virtually everything that is done in the administration of that system will seem tyrannical to someone. Evolution is taught or it isn't -- coercion either way. The pledge of allegiance is made part of a regular ritual, or it isn't -- coercion either way. The races are separated or they aren't -- coercion either way IF one understands that the system itself is coercive.
The real direction of progress (not of progressivism) would involve getting people to see market alternatives, and understand that the forces of spontaneous order will address all such dilemma to the extent they are allowed to do so.
In some moments Goldwater seems to want to follow that rule. Alas, though, he was all too often a conservative instead.
24 June 2011
My interlocutor said, further, that this should have been obvious even from the passage I quoted. He re-pasted that quote, emphasizing the phrase "the satisfaction of economic wants". Then he asked (this took my breath away): "Linda going to school with her white neighbors has much of anything to do with 'economic wants,' how?"
The idea behind this question, if I understand it at all, is that Goldwater was defining liberalism as a view exclusively concerned with economic want. Linda's wants were something other than economic, thus they didn't pertain to the liberal-versus-conservative riff he was engaged in, in that passage.
I gave the obvious answer: people growing up together make connections with each other. They become friends, or at least get accustomed to each other, and become part of a common network. That network, in later years, has a lot to do with who gets what job. There's an old saying. "it's not what you know, it's whom you know."
Segregating people from their earliest years helps ensure that the personal networks will be separate. It ensures that white people in the position to make employment decisions will think first of those whom they know best -- those they went to school with.
Coercively enforced separation enforces inequality, as to economic wants. That is one reason why the expression "separate but equal" was always a lie. That lie is what Goldwater was supporting when he called for a constitutional amendment that would undo the Brown decision.
But there is a broader point here. What the heck is an "economic want"? A specific kind of want? What would be a non-economic want, then? A spiritual want?
Resources are always scarce, however sacred or spiritual may be the use I want to make of them. Land is a scarce resource, whether I want to build a factory on it, a school, or a church. None of those three types of building is "non-economic." Any of the three of them may be understood economically, or understood spiritually, but none of them is non-economic! Likewise, no wants are non-economic.
Suppose the greatest want of my life is that I could pray more often. Why can't I pray now? Is it because my life is too hectic, and I haven't been able to set aside some time in which to focus on my gratitude to God? If that's the problem, it is an economic problem -- I want to rearrange the use of my time, a limited resource. How much am I willing to pay to get that extra time? From which of my other activities am I prepared to take it. That is the economists way of looking at such questions and, I submit, it is an essential way of looking at them.
To look down on economics, as somehow an unfitting or unspiritual study, as both Goldwater and my interlocutor seemed to do, is unserious at best and pragmatically disastrous for the society that engages in it at worse. This may get to the heart of why I am not a conservative.
23 June 2011
Should I be a conservative? After all, many in our own day who use that label for themselves happily define their creed as the distrust of government, central planning, etc. That is valid enough for me, since I'm an anarcho-capitalist. (Going further in the libertarian economic direction, then, than did Hayek.)
So: am I a conservative?
Fortunately, conservatism conserves enough of a memory of its own past that some of its proponents today quote classic texts, and these texts can give me a fix on what I am or am not. For example, in the mid-20th century US one of the most prominent conservatives was Barry Goldwater, long-time Senator from Arizona, 1964 presidential candidate, author of a book entitled The Conscience of a Conservative (1960).
Let us see if he had anything to say that helps me fix ideas about what I am, or should be, or perhaps should not be.
"Conservatism," Goldwater says rather early on in that book, "therefore looks upon the enhancement of man's spiritual nature as the primary concern of political philosophy. Liberals, on the other hand, -- in the name of a concern for "human beings" -- regard the satisfaction of economic wants as the dominant mission of society. They are, moreover, in a hurry. So that their characteristic approach is to harness society's political and economic forces into a collective effort to compel 'progress.' In this approach, I believe they fight against Nature."
There is a good deal of confusion in those sentences, and I believe the respects in which they are confused will help me get to me goal: clarifying why I am not a conservative in any sense in which the late Senator Goldwater was.
The pause to blame liberals for being "in a hurry" is one loose thread on which we might want to tug. After all, if somebody wants something that is wrong, then it hardly matters whether he wants it quickly or slowly. It is wrong to move quickly to do a bad thing and it is wrong to move slowly to do a bad thing.
Someone is trying to rob a bank. Oh, a bad thing. And what is more, they're in a hurry! they have a getaway car all revved up out front and they're motioning to the teller to be quick about putting the loot in the bag. Is that an aggravating factor?
Consider another set of bank robbers. More methodical, they take days to create a tunnel beneath the bank into the vault. They aren't in a hurry, then, They are showing some patience in working toward their goal. Are they the "good" bank robbers? Are conservatives more firmly against the one set of bank robbers than the other?
I think not. Indeed, the only relevance of this "in a hurry" qualification would arise if there were things that would be good only if accomplished slowly.
My inference is that Goldwater was doing two things in this passage. First, he was trying to link his conservatism with the views of Edmund Burke, as expounded in the 1950's by political theorist Russell Kirk. The rest of his (Goldwater's) book has relatively little to do with the Burke/Kirk constellation of ideas, but Goldwater wanted to bow in that direction.
Second, though, Goldwater wanted to anticipate what he would say about the civil rights struggles of black Americans later in his book. He would say "It so happens that I am in agreement with the objectives of the Supreme Court as stated in the Brown decision. I believe that it is both wise and just for Negro children to attend the same schools as whites, and that to deny them this opportunity carries with it strong implications of inferiority."
But, of course, he didn't want to desegregate in a hurry. That would be fighting against nature. He wanted the Justices to leave the decisions to the state legislatures, and he hoped that moral suasion would in time bring the state legislators around.
I have to wonder about the pragmatic significance of this sort of "agreement with the objectives." After all, the 14th amendment was enacted in 1866. It was 90 years later that the Supreme Court ordered desegregation, and even then it included the key phrase "all deliberate speed." The word "deliberate" (i.e. you in the states and towns can think about this and make sure you do it right) was an invitation to further foot dragging -- an invitation that was immediately accepted.
So 90 years plus is "in a hurry"?
But let us return to the passage in the introduction, the passage I italicized above. Goldwater is unhappy that liberals "regard the satisfaction of economic wants as the dominant mission in society." What does that mean?
Can "wants" be divided into economic and non-economic "wants"? Or are all wants economic wants? I hope to take things up from this point tomorrow.
19 June 2011
I did notice a week ago that the Dallas Mavericks became the 2011 champions of the NBA. Congratulations to them.
I am rather ambivalent in my attitudes toward Mark Cuban, the Mavericks' owner. On the one hand, he is engaged in a great folly known as Sharesleuth see here for more.
On the other hand, the government brought some very weak insider-trading charges against him not long ago and I cheered his victory over that bum rap.
At any rate, he makes good copy.
Cheers, then, for both Cuban and his team.
18 June 2011
Jackson Browne participated, as did Bruce Springsteen, Bonnie Raitt, Peter Yarrow and the Chamber Brothers.
Here's a link to the wiki article on aforesaid Chamber Brothers.
What do you know? I just read that article myself for the first time, and learned that Steve Hunter, aka ALice Cooper, was a session guitarist for the Chamber Brothers.
Something new every day. But nothing profound today. Look for profundity elsewhere. Or come back tomorrow and we'll try again.
17 June 2011
In so doing, the Court limited the scope of some of the language of the University and Small Business Patent Procedures Act of 1980, also known as the Bayh-Dole Act.
The IP in question is to a diagnostic test for HIV involving a polymerase chain reaction (PCR), developed by a Stanford research fellow named Mark Holodniy. Under the Bayh-Dole Act, in a provision that was designed precisely to encourage federally-funded universities to engage in cutting-edge research, the rights to the PCR diagnostic would have been Stanford's, but for a contract Holodniy signed with Cetus, a company where he was a visiting scientist, in which he said he does "hereby assign" his rights to Cetus.
The great thing about PCR is that it does more than simply discover the presence of HIV. It measures the amount of the virus in a patient's blood stream, thus determining whether and to what degree he is benefitting from therapy.
In 1991 Cetus was acquired by, and its rights passed to, Roche.
In 2005, Stanford brought a lawsuit contending that Roche was illegally selling HIV test kits that infringed on Stanford's patents. Roche responded that it was a co-owner of the procedure. The matter went to the Supreme Court, with Stanford claiming that Holoniy had no right to assign to Cetus/Roche, because the right belonged by law to Stanford, so the document in which he purports to make that assignation is void.
U.S. patent law gives the initial IP right to the inventor. The inventor can then assign it away, to one party or another or no one, as he deems best. Indeed, the Constitution gives Congress the authority to secure "to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It does not give the Congress the authority to secure that exclusive right to an institution employing the authors and inventors. The rather stark individualistic language refers to the authors and inventors themselves.
This decision was not in a strict sense a constitutional decision. It interpreted the language in Bayh-Dodd in such a way as to avoid any conflict with the relevant clause of the constitution. But it certainly did invoke the policy that the majority sees the document's language as endorsing.
Institutions such as Stanford will not suffer any great wound from this decision. They simply have to tighten up the language of their own employment contracts for their postdocs and others to make sure they have the assignation rights from the Holodniys of the world before anyone else puts a well-drafted document in front of any of them. Yet a principle is affirmed, by virtue of the fact that Stanford takes this loss and has to rework its contracts, the principle that the choice, in the first instance, must lie with the Holodniys.
16 June 2011
This weekend, in the weekend edition of The Wall Street Journal, I read a review of two new books about railroad history. The reviewer, John Steele Gordon, begins thus:
"One technology replaces another only because the new technology is better or cheaper or both." His allusion, in this context, is to the rise of steam engineering as a replacement of the application of muscle power by humans or horses.
Here's a link to that review, though you may need to get a subscription.
Through some random unmotivated googling, I found those same words in another context, in a story published only three weeks before. The website of The American Enterprise Institute ran a story about the death of the old-style printing press and, for that matter, the contemporary dying of dead-tree books.
Here's a link to that one.
I thought I had uncovered a bit of plagiarism until I checked for the author's name at the top of that article on The End of The Book. It was ... John Steele Gordon. He is entitled to re-use his own sentences without quibble from me.
Don't use it too often, though, Mr. Gordon. It's not that great a sentence.
12 June 2011
I want to quit smoking. I am convinced that I ought to quit smoking. Ah, but there is this craving. I am tempted, and fall, give in to my urge, grab a cigarette, etc. This is the language we use in speaking about many of the experiences of our moral life.
Kant said that the only thing good in the world is a good will -- a will to do one's duty. Whatever it is, it is a matter of will, not of sentiment. Not only does sentiment tend to steer us wrong, like those cigarette cravings, but even when (for Kant) when sentiment steers us right, it represents the wrong reason for doing the right thing.
This standing-up-to-temptation idea of the moral life, though, obviously isn't the only way. On January 27, 1986, engineers and managers from NASA on the one hand and from contractor Morton Thiokol on the other met to discuss a simple question: whether the launch of the Challenger the next day should be cancelled due to the low temperatures and given the concern of some of the Morton Thiokol engineers that O-ring difficulties had been connected with low temperatures.
The decision made that day cost seven lives on the morrow.
I suspect the conversation in that room could be described in the failure to-resist-temptation paradigm. But I suspect that any attempt to see it in those terms would be a wild misreading.
11 June 2011
10 June 2011
Bishop's execution was the first. The witch-hunting fever would continue for months. A total of 19 people would be hanged, one would die of the pressing of stones, and several would die in prison.
The trial of Mrs Bishop included the following exchange:
Q: Bishop, what do you say? You stand here charged with sundry acts of witchcraft by you done or committed upon the bodies of Mercy Lewis and Ann Putman and others.
A: I am innocent, I know nothing of it, I have done no witchcraft .... I am as innocent as the child unborn. ....
Q: Goody Bishop, what contact have you made with the Devil?
A: I have made no contact with the Devil. I have never seen him before in my life.
I have to wonder whether the word "contact" in that exchange is a mistranscription of "contract," which is surely what the one party meant to ask about and the other meant to deny.
09 June 2011
Even if you aren't accustomed to reading the financial news, you've probably seen the name in the last few days, because short seller Muddy Waters put out a research report essentially accusing the bosses at Sino-Forest of running a ponzi scheme and dressing it up to look like a timber company.
I've used the matter as a pretext for making a general point in the Forbes blog about how ordinary investors, those who don't have the resources necessary to do "due diligence" on Canadian/Hong Kong companies themselves, should act. Don't be afraid to head for the exits. You aren't a court. You don't owe them due process!
Here, if you're curious is what I had to say
Here is another take on the controversy from Felix Salmon.
But you might want to see the MWR report yourself. Voila!
MWR isn't the only lion looking at this particular zebra.
On the other hand, Sino-Forest has its defenders.
And why would a short seller/negative research operation name itself after this guy?
The psychological appeal of China to the western world, the idea of China, is itself a dream marketers' hook. Since when? Since about THEN.
05 June 2011
She's replacing Bill Keller who is himself staying on as a columnist. Keller became executive editor after the Jayson Blair scandal drove out his precursor, Howell Raines, in 2003.
For those with short memories, in late April of that year the San Antonio Express-News discovered a blatant instance of plagiarism, and The New York Times responded with an internal investigation which led to a voluminous record of the plagiarisms and sheer inventions of one of its reporters, Jayson Blair, fraud which tainted at least 36 articles. There was some back-and-forth at the time about who would take the fall. In early June, though, Raines left, and that July, Keller replaced him.
Felix Salmon has congratulated the publisher Arthur Sulzberger for "orchestrating this necessary handover in a very smooth and professional manner." In Salmon's view, and those of others it was necessary because of Keller's aversion to any technology that doesn't involve killing trees.
Let's get back to Abramson! She has the distinction of having testified, in response to a subpoena, as part of the defense of Scooter Libby. She was The Times' DC bureau chief at the time of the whole sideshow over Valerie Plame. Defense counsel asked her whether she spoke with Judy Miller at that time about reporting on piece on "whether Joe Wilson's wife works for the CIA?"
The defense was apparently hoping she would say "absolutely not," thus discrediting Miller's version of events.
She responded, "I have no recollection of such a conversation," which was less than they wanted. And, of course, Libby was convicted.
04 June 2011
As you'll notice as you read it, he railed against the stupidity of every war he mentions, and found none of them "worth it." I won't argue with him there.
He also says, incidentally, that he dislikes the fact that making this anti-stupidity point might make him seem like a "pro-peace" person. Being pro-peace, he said, is "not what this is about."
I wasn't the only reader of his reflections who wondered why he would insist on a distinction between railing against war and being pro-peace. Doesn't opposing anything usually entail holding out some hope for an alternative? I thought I had come up with an adequate explanation for what he meant, but then started reading the comments section to find my explanation up-ended.
You'll also see, if you go rather deep into the comments thread, that "dinosaurtrader" asks him about this matter too. "Why hate feeling like a 'pro-peace' person? What's so bad about that?"
He replied that this was a good point, and that perhaps a "shame factor" entered into his use of that expression.
That's where I jumped in, and I'll just reproduce here my own comment.
As to the difference between being pro-peace and being anti-stupidity-of-war, I thought you were making a valuable distinction. After all, in 1938 Gandhi wrote a rather fatuous essay on the ongoing persecution of Jews in Germany (which was of course still, as we can say in hindsight, in early stages), and I submit that his essay to which I will link you in a moment shows the limitations of what it means to be a peace person. He said: "But if the Jewish mind could be prepared for voluntary suffering, even the massacre I have imagined could be turned into a day of thanksgiving and joy that Jehovah had wrought deliverance of the race even at the hands of the tyrant. For to the godfearing death has no terror."
If THAT is pro-peace, then pro-peace is pretty stupid., I think in retrospect at least there might be a lot more Jews in the world today than there are had there been more resistence: two, three, four, a dozen Warsaw uprisings.
On the other hand, the wars that you reference don't have a lot to do with the Warsaw ghetto uprising. So, yes, I saw your point (if this was your point) in dissassociating yourself from sentiments like that on one hand, while opposing the stupidity of war on the other.
I hope you don't abandon that distinction entirely.
03 June 2011
Some species have "evolutionary potential" and others don't. Some have come to an evolutionary dead end. That distinction has some support from Ohno.
Among those species with EP, the potential becomes actual when there is a shock from without, a benevolent infection.
"It is interesting that among birds those in which influenza virus has been found -- chicken, duck, turkey, quail, shearwater -- tend to be long-lived species. We remarked above that program changes which are not improvements show up as disease, from which it follows that species susceptible to program changes -- i.e. those stil with evolutionary potentisal -- must exhibit a greater tendency to disease than static spcies without evolutionary potential."
02 June 2011
Knowledge is warranted belief -- it is the body of belief that we build up because, while living in this world, we've developed good reasons for believing it. What we know, then, is what works -- and it is, necessarily, what has worked for us, each of us individually, as a first approximation. For my other blog, on the struggles for control in the corporate suites, see www.proxypartisans.blogspot.com.