Monday, December 31, 2007

Beating the Drum

One thing the Republicans are very good at is reminding the public, again and again and again, of the problems they perceive with Democratic leaders. During the Clinton years, even the smallest scandals -- Travelgate, say -- got mentioned endlessly, again and again, for years on end, even long after they were over.

The Democrats need to take this page out of the Republican playbook. As 2007 comes to a close, the chief scandal of the Bush administration, the Iraq war, seems to be in a somewhat equivocal state. On the one hand, 2007 was the deadliest year of all for U.S. troops, with nearly 900 fatalities; on the other hand, Iraq's security situation has improved considerably over the last few months and the rate of fatalities is down sharply.

But no matter how you look at it, it's still a scandal. The Democrats need to help the public remember:

* In 2003, before the start of the war, Donald Rumsfeld originally said the war would cost less than $50 billion.

* Some weeks later, the Pentagon estimated that the war would cost $60 - $95 billion. Paul Wolfowitz criticized the $95 billion upper end as too high.

* In fact, direct military spending alone already exceeds $368 billion and the total cost may be $1 trillion. Why, the White House just demanded and got another $70 billion.

Perhaps Democrats think the public would get bored if these figures were mentioned over and over again. But if the party situations were reversed, you'd be hearing them every day -- probably more than once.

Sunday, December 30, 2007

What Would We Do?

Pakistan's ruling party says that the country's upcoming elections, scheduled for January 8, may be delayed up to four months in the wake of the assassination of opposition leader Benazir Bhutto.

What would we do if one of our leading presidential candidates were assassinated or otherwise died two weeks before the presidential election? We've been lucky on this score for two hundred years, but even with good security there could always be a plane crash, like the one that tragically killed Senator Paul Wellstone shortly before he was up for reelection in 2002.

The answer is that this is a constitutional accident waiting to happen -- as is the case of the winning candidate's dying shortly after Election Day. The Twentieth Amendment to the Constitution takes care of the case of the death of the President-Elect before his term of office begins, but the successful candidate is not the President-Elect immediately after Election Day, because the real election doesn't take place until the electors (the members of the Electoral College) cast their votes, and even then the candidate is probably not really the President-Elect until the electoral votes are officially counted in Congress. If the apparently successful candidate died before the electors cast their votes, their would be massive confusion and no one would really know what to do or what would happen.

But going back to the case of a leading candidate's dying, by assassination, plane crash, or otherwise, shortly before Election Day, it would on the one hand seem grossly unfair to go forward with the election, but equally unfair to postpone it. Unfair to go forward, because no one would have the slightest idea what to do -- the ballots would already be printed, the computers already programmed, and there would be enormous confusion about the effect of voting for the deceased candidate, whether a replacement could be named, and so on, and even if the legal experts could agree on what should happen (most unlikely), there would be no time to communicate it effectively to the voting public. But unfair to postpone, because campaigns spend hundreds of millions of dollars with the goal of peaking at precisely the right moment. Everything is keyed to the precise date of the election.

And that's not to mention that there's no legal basis for postponing anyway, and no one with the authority to order a postponement. There was some discussion of who could order a postponement in the event of a terrorist attack or natural disaster shortly before the 2004 elections (the U.S. Elections Assistance Commission sent a letter to the Department of Homeland Security asking whether it had a contingency plan), but the subject got everyone so spooked that the discussion was quickly dropped.

Pakistan's terrible assassination should make us rethink this issue. Yes, it's awful to contemplate the possibility. And a postponement authority would be dangerous -- you just know an administration like the current one would trump up some excuse and use it for political gain if it looked like its party was behind in the days before Election Day. Maybe the risk of improper postponement is greater than the risk of having a genuine need for a postponement, in which case we're better off with our traditional strategy of trusting to luck. But it wouldn't hurt to appoint a commission to think about this issue and make some recommendations. The best time would be immediately after the next presidential election, when the issue could be discussed with at least a modicum of neutrality and calm. Meanwhile, cross your fingers and hope.

Saturday, December 29, 2007

Enemies of the State

Just in case you had any remaining doubts about the importance of the writ of habeas corpus, recently declassified documents show that in 1950, FBI Director J. Edgar Hoover floated a plan to detain about twelve thousand people, almost all American citizens, without judicial trial on the ground that they were "potentially dangerous to the internal security of the country." The plan called for suspension of habeas corpus and detention in military prisons. Eventually, those detained would have received a hearing by a Hearing Board consisting of a judge (either federal or state) and two citizens chosen by the Attorney General. The decision of the Hearing Board would be subject to review by the Attorney General, whose decision would be final except for appeal to the President.

Well, isn't that lovely -- throw everyone in jail and allow the Attorney General's handpicked flunkies to decide whether to let them out, with review by the Attorney General.

America's current wave of extrajudicial detentions continues with only muted outcry because it affects people whom most Americans can comfortably regard as the "other." Hoover's extreme plan usefully reminds us that abuse of freedom is everybody's business. Once procedures for locking people up without charge and trial exist, they endanger everybody. The FBI Director had a plan to lock American citizens up en masse. Who knows what plans Alberto Gonzales put together that have yet to be discovered. This isn't just a danger to other people -- our own freedom is at stake.

Monday, December 24, 2007

Weblog Anniversary

Not my blog anniversary or anything like that, but it appears that this is the tenth anniversary of the invention of the term "weblog." (Actually, it appears that the tenth anniversary occurred a week ago but news organizations have just caught up.) The term got shortened to "blog" later.

The anniversary reminds us that weblogs started as, well, logs of what someone was doing on the web. Back in the day, oh so long ago, it was a little harder to find web content than it is now, so people appreciated links to good stuff. And even today a lot of very popular blogs -- certainly many that are thousands of times more popular than this modest effort -- seem to consist largely of links to other content.

The key to success, it seems, is to surf the web, find good content and link to it. My basic error is trying provide content of my own.

In the spirit of the anniversary, here's a little time-waster for you: the top 20 viral videos of 2007. If you only have 10 seconds to spare, be sure to watch "Dramatic Chipmunk."

Yes, I did watch some of them this morning. But hey, it's a University holiday.

Friday, December 21, 2007

Cue Bill Clinton

So Mitt Romney first said that he "saw" his father march with Martin Luther King, Jr. Now he's backing away from that statement. OK, he screwed up. But the most delicious part of the whole thing is that Romeny now says:

"If you look at the literature, if you look at the dictionary, the term 'saw' includes being aware of in the sense I've described. It's a figure of speech and very familiar, and it's very common. And I saw my dad march with Martin Luther King. I did not see it with my own eyes, but I saw him in the sense of being aware of his participation in that great effort."

Could there be a more Clintonesque explanation? (I mean President Clinton here, not Senator Clinton.) Aren't we entitled to one politician who can talk about things in straightforward terms that don't need footnotes and hypertechnical exegesis? Isn't there a politician who's capable of admitting error?

Fair Tax Follow-Up

After writing these posts about the "Fair Tax," which seems mostly like yet another way to repackage a truly stunning tax cut for the very richest, I sent the following question to the "Ask the Expert" section at the Fair Tax website:
You call the Fair Tax "progressive" because the rich would pay more as a percentage of spending. But the rich can save more (which would not be taxed), so wouldn't they likely pay a lower percentage of their income than the middle class?
I sent this in on December 2. No reply yet. Hmmmm . . .

Sunday, December 9, 2007

A Little Strike Relief

If, like me, you're waiting wistfully for the Daily Show to come back following the writers' strike, check this out. And of course come back and follow the blog.

Straining at the Gnat

Yesterday, we took a day off from relentless critique to admit an error of our own. We now return to our regularly scheduled programming.

I don't pretend to understand the national budget, but I do know that President Bush has been one of our most profligate, extravagant spenders ever. The Republicans talked about reining in federal spending for decades, but from 2000 to 2004, when they had control of the White House and both houses of Congress, federal spending increased at twice the rate it had increased under President Clinton (and that's straight from Fox News).

But now, even though Congress looks like it will cave in once again and give him $70 billion in Iraq war funding with no strings attached, President Bush is threatening to veto the omnibus budget bill because it contains $11 billion in domestic spending he doesn't want. Heavens, Bush proposed $623 billion in defense spending alone; he wants to spend almost $3 billion in Iraq and Afghanistan every week, and he can't compromise on $11 billion in domestic spending he doesn't like? We've got $141 billion to spend in Iraq and Afghanistan but not $11 billion to spend at home?

Look, I don't know the details. Maybe there's something specially bad about this $11 billion. But for Bush and the Republicans to claim that they've suddenly discovered fiscal responsibility is absurd. They've been pouring our money down bottomless foreign pits for five years now. They boosted domestic spending to record highs when they controlled the whole show. Now the Dems have Congress and they're going to have to compromise a little.

Saturday, December 8, 2007

Owning Up

President Bush never admits a mistake, but we bloggers have a higher standard: I admit it, I was wrong. In these early posts, I suggested that increasing our troop strength in Iraq by a mere 18% or so (the famous "surge") couldn't make that big a difference to conditions there. I was cautious enough to note that an untrained, armchair general such as myself might easily be missing something. Well, it seems that I was.

Security conditions in Iraq have improved. U.S. troop deaths, the indicator I follow most closely, are way down. We're still losing about 1 per day, which of course is not good, but it's way better than the 3-4 per day we were losing earlier in the year and at times last year. Iraqi deaths are at about 20-30 per day; again, not a happy statistic, but way down from the peak of over 100 per day. We can't be sure these improvements are due to the surge, but they at least coincided in time.

I'm not saying that I've changed my opinion on the war as a whole. Improvement in security conditions in Iraq does not appear to have been matched by much progress in political reconciliation. We're still pouring billions of dollars into the war every week. It's still true that the whole war was based on faulty intelligence, was appallingly mismanaged for years, has harmed our international standing, and hasn't acheived benefits worth its enormous costs.

But I was wrong to say that a modest change in our troop strength couldn't make a difference. Something has made a difference, and it's hard not to give at least some credit to the surge.

Sunday, December 2, 2007

More on "Fair Tax"

One of the comments on yesterday's entry made a good point (actually, several good points but I'm just going to highlight one of them).

The comment by Kipesquire points out that the claim by Fair Tax proponents that the Fair Tax would impose a federal sales tax of 23% is somewhat misleading. To their credit, the Fair Tax people at least acknowledge this point on their website (they don't acknowledge the regressivity point anywhere that I can see). Under the Fair Tax, if you spent $1 at a store, 23 cents of that dollar would be paid by the store to the federal government as tax. This is the basis for the Fair Tax people's statement that the Fair Tax rate would be 23%.

But as even they acknowledge, sales taxes are usually quoted on a "tax exclusive" basis; that is, they are quoted as a percentage of the cost of the underlying goods, not as a percentage of a price that includes the tax itself. What's really happening in this example is that you are spending 77 cents on some item and paying 23 cents in tax on that item. If you went to a store today and bought a 77-cent item and paid 23 cents in tax, we would normally say that the tax rate is 23/77 = 30%, not 23/100 = 23%. So it would be more straightforward (although less politically appealing) to present the "Fair Tax" as a 30% sales tax.

So when I said yesterday that my hypothetical couple Alice and Bob earned $100,000, saved $10,000, spent $90,000, and paid 23% of $90,000, or $20,700 in taxes, it's important to realize that the $20,700 is part of the $90,000 they spent. They got $69,300 worth of goods and paid $20,700 in taxes on those goods. On the more normal "tax exclusive" basis, one would say they paid a tax of $20,700/$69,300 = 29.87%. After their $6,297 rebate, their tax would be 20.78% of their spending. The richer C&D paid 29.70% of their spending (after rebate), and the even richer E&F paid 29.83% (after rebate).

Thus, under the Fair Tax, one's tax, quoted on a "tax exclusive" basis, would asymptotically approach 30% of one's spending, the more one spent.

But yesterday's main point was that it's extremely misleading to call a tax "progressive" when the rich would in all likelihood pay less of it as a percentage of their incomes. As noted yesterday, rich people can save a much higher percentage of their incomes than middle-class people. (Indeed, my hypothetical Alice and Bob's ability to save 10% of their $100,000 income while raising two kids is prodigious, given that real Americans often save less than nothing.) Because the "Fair Tax" would tax only spending, not savings (and it also taxes only consumer spending, not spending that represents business investment), rich people, as shown yesterday, could easily pay a lower percentage of their incomes in tax than middle-class people, thus piling up savings on which they could earn even more income on which to pay an even lower tax rate. I just can't trust people who fail to acknowledge this basic point.

Saturday, December 1, 2007

The "Fair" Tax

Republican Presidential candidate Mike Huckabee recently endorsed the "Fair Tax." The "Fair Tax," which you can read in detail about here, is a proposal to repeal federal income tax, payroll tax, estate tax, and a bunch of other taxes, and replace them all with a 23% federal sales tax. The IRS could be abolished, and people would pay taxes only on what they spend, not on what they save.

Everyone would also get a "prebate" of the tax equal to the amount of tax that a poverty-level household would pay. The prebate is determined solely by household size, not by income -- for example, every married couple with two children would get an annual prebate of $6,297. The alleged advantage of the prebate is that it would, supposedly, make the Fair Tax progressive -- poor people would pay hardly anything, and middle-class people would pay a lower percentage of their spending in tax than rich people.

I'm not really expert enough to evaluate the Fair Tax in all its detail, but I can tell you one thing: the whole concept is based on a big, fat lie. The Fair Tax website prominently states and many times repeats that the Fair Tax is "progressive." Nonsense.

The website makes this claim because, under the Fair Tax, the wealthier you are, the more tax you would pay, when the tax is considered as a percentage of your spending. But they hide the fact that they wealthier would be likely to pay less when the tax is considered as a percentage of income.

The wealthy generally spend less of their income than the poor or middle class, and the Fair Tax taxes only spending, not saving. Therefore, under the Fair Tax, the wealthy would likely pay less tax as a percentage of income. Maybe a lot less.

Let's do an example. Alice and Bob are a two-earner couple with two children. Between them, they make $100,000 per year. Because raising kids is expensive, they have to spend most of their income. Let's imagine they manage to save $10,000 and spend $90,000. They pay 23% x $90,000 = $20,700 in tax. After their rebate of $6,297, their net tax is $14,403. That's 16.00% of their spending, and it's 14.40% of their income.

Now, Carol and David are also married with two kids, but Carol is a partner at an investment bank and makes $10,000,000 per year. David doesn't work. Living rich is expensive, but they've got so much money they manage to save $5,000,000 of their income and they spend $5,000,000 (I could live pretty well spending $5,000,000 per year, couldn't you?). They pay a tax of 23% x $5,000,000 = $1,150,000. The get the same $6,297 rebate (a trivial sum for them), after which their net tax is $1,143,703.

Now, the Fair Tax people want you to focus on how much tax Carol and David pay as a percentage of their spending. And yes, as a percentage of spending, Carol and David pay 22.87% -- notably higher than Alice and Bob. But look at their tax as a percentage of income. Because they can save half their income, Carol and David's tax is just 11.44% of their income! That's substantially lower than Alice and Bob's tax as a percentage of income.

And if Ellen and Frank, another married couple with two kids, are super-rich, make $100,000,000, and spend $25,000,000 (saving $75,000,000), they'd pay 23% x $25,000,000 = $5,750,000 in tax, or $5,743,703 after their rebate. That's 22.97% of their spending but just 5.74% of their income!

So it seems to me that the "Fair Tax" is likely to be highly regressive. The Fair Tax website touts the tax as progressive many times based on tax paid as a percent of spending. But I don't see a word about tax paid as a percent of income.

In my opinion, that's fundamentally dishonest. It causes me to distrust the whole website. When people are promoting a highly regressive tax as progressive, I would say, stop right there. The whole thing is immediately suspect.

Monday, November 26, 2007

The Ron Paul Phenomenon

Media continue to proclaim themselves somewhat bewildered by Ron Paul's "improbably successful" presidential candidacy.

There's nothing bewildering about it, because it's not that successful. Even after all the hoopla, and the one big day of fundraising (Paul raised $4.3 million on November 5), Dr. Paul's national poll rating is a whopping 6%. In New Hampshire, he gets 8%. I haven't seen him out of the single digits anywhere.

Ron Paul is just the Republican equivalent of Ralph Nader's failed presidential bid on the Democratic side. It's not that hard to appeal to 5 or 6% of the voters. You just take extreme positions. Paul has called for abolishing income tax (he's the darling of the anti-income tax crazies) and withdrawing from international organizations. He deplores the Federal Reserve and yearns for the days of the gold standard. He thinks the federal government lacks constitutional power to fund schools. That sort of thing.

Becoming President is not about appealing to 5% of the country. Anybody can do that. You have to take positions and forge coalitions that get you to a majority, or at least somewhere in the high 40s.

Sure, it's refreshing when a politician candidly speaks his mind about everything and takes undiluted positions without worrying about the consequences. But politics is the art of compromise. In a few months Ron Paul will be an amusing footnote in this important election.

Wednesday, November 21, 2007


Despite the upcoming Thanksgiving holiday, the United States Senate was in session yesterday -- for 30 seconds. Senator Jim Webb of Virginia gaveled the Senate into session, had the clerk read a vital communication to the Senate (namely, the one from Senate President pro tempore Robert Byrd, appointing Webb to the Chair for the day), and then announced that under the previous order, the Senate would stand in recess until Friday. Bang went the gavel again, and the Senate officially receded.

Why this little bit of theater? It's all a plan to block President Bush's ability to make recess appointments. Under the Constitution, the President has "Power to fill up all Vacancies that may happen during the Recess of the Senate" by making a "recess appointment." By holding these pro-forma sessions, the Senate, technically, is not in a sufficient "recess" to justify the use of the recess appointment power.

The question of just how long a recess has to be before the recess appointment power kicks in is unsettled. I recall that when I was at the Department of Justice, President Bush the Elder made a recess appointment with just a couple of weeks left in his presidency: following the 1992 elections, the new Congress convened on January 7, 1993, and promptly recessed until January 20, 1993 (Inauguration Day). On January 8, President Bush, purportedly by virtue of his recess appointment power, appointed one Thomas Ludlow Ashley to be a Governor of the United States Postal Service. President Bush was having a titanic struggle with the Postal Service at the time and wanted to get his own people in charge as much as possible.

The validity of a recess appointment during a 12-day recess became another difficult issue in a case filled with hopelessly difficult issues. Fortunately for us, and perhaps for the Republic as well, the issue mooted out and melted away quietly once the Clinton Adminsitration came in. So we still don't know the answer.

But here's my small contribution to the debate: notice that the Constitution provides for the President to have the recess appointment power during "the" recess of the Senate. Could the definite article "the" suggest that the recess appointment power is not meant to apply during something that would merely be "a" recess? After all, once you allow recess appointments during "a" recess of, say, a month, it's tough to avoid noticing that the Senate is frequently in recess for a few days, over the weekend, overnight, or even over lunch. What line distinguishes these recesses from recesses during which the recess appointment power is active? If the answer is "hmmm, hard to say," then perhaps the definite article "the" in the recess appointment clause indicates that the recess appointment power exists only during an intersession recess, not during an intrasession recess of any length.

That's not how Presidents have treated the power, but it's a potential solution to what is otherwise a constitutional conundrum.

Friday, November 16, 2007

Inauguration Day

Quite a rare ceremony at George Washington University today -- the Inauguration of our new President, Steven Knapp. (No, no, not Stephen Knapp, expert on "Spirituality, Vedic Culture, and Eastern Philosophy," Steven Knapp, expert on 18th- and 19th-century English literature and literary theory and former Provost of Johns Hopkins University). Dr. Knapp is our first new President in 19 years and only the 16th in the history of the University.

There was pomp and circumstance aplenty in the ceremony, as faculty and administrators looked splendid in full academic regalia -- all except our immediate past president, Stephen Joel Trachtenberg who displayed his appreciation for the event by wearing a baseball cap with his academic robes. It was, to be sure, a GW baseball cap, but still, one was reminded of the unfortunate parka and ski cap that Vice President Cheney wore to a ceremony celebrating the liberation of Auschwitz. It showed a lack of respect for the importance of the event. A pity our President Emeritus couldn't have dressed properly.

Still, everyone else did a great job and it was a pleasure to hear Dr. Knapp's scholarly address. Good luck, President Knapp.

Wednesday, November 14, 2007

The Great Bridge Scandal of 2007

Quite a story roiling the bridge world: the U.S. women's bridge team, winners of the of Venice Cup, the international women's world bridge championships, held up a sign saying "We did not vote for Bush" at the gold medal ceremony in Shanghai, during the playing the U.S. national anthem. The United States Bridge Federation, the organization that represents the U.S. in international play, wants to ban the winning team from play (including not just USBF play but American Contract Bridge League play as well) for a year. The story has already made the N.Y. Times and of course it's all the rage on the bridge newsgroup.

A little analysis: it's not actually a First Amendment matter, because there's no government involvement. The USBF is a private organization. The NFL bans players from displaying political messages during games and that doesn't violate the First Amendment. So while it seems reflexive (to Americans) to invoke the First Amendment, that's not actually the issue.

No, the issue is whether the penalty makes any sense. I do think the players were naive to imagine that people wouldn't get offended. Injecting politics into a bridge event is naturally going to raise some hackles. We all know what happened to the Dixie Chicks when they mixed an offhand political comment with music -- and that was at their own concert. And of course the 1968 Olympic incident involving Tommie Smith and John Carlos is an even closer parallel. So the team should have known they were asking for trouble.

Still, the penalty seems way over the top. It's not clear, first of all, that the USBF actually has any rule that was violated; the Federation seems to be proceeding under a general rule forbidding "conduct unbecoming a player." That's a bit of a stretch. Second, the USBF's authority to ban players from ACBL play seems mysterious. Finally, the penatly just seems far too harsh. Players may not have a right to express political messages at the awards ceremony, but, being Americans, we should let free speech be a value that informs how harshly we treat it. What kind of message are we sending to the Chinese hosts of the game with such a harsh penalty? "Yes, stamping out dissenting political messages is a great thing"?

Probably what's happening is that the UCBF is run by a bunch of humorless Republicans who can't bear to see Bush criticized and who are flexing their muscles. If I were in charge, I would give the players a talking-to and institute a rule of decorum for awards ceremonies. The players can make whatever statement they want afterwards. But for this incident, let's chill a little.

Monday, November 12, 2007

No Problem

I had lunch at a restaurant with a friend this weekend, and, after each of us ordered, the waiter said, "No problem."

What's up with that? An increasing number of waiters say "no problem" or "not a problem" when you order. Don't they realize what that sounds like?

"No problem" is what you say after someone has apologized for inconveniencing you. By saying it in response to your lunch order, the waiter is suggesting that, by ordering, you are annoying the waiter, and that a lesser waiter might have walked off in a huff, but that he will graciously bear the inconvenience of having you around.

Perhaps some waiters actually feel this way, and there are days when we all feel annoyed at being asked to do our jobs. But a waiter is supposed to make you fell welcome. I don't expect waiters to respond to orders with "At your service," although I loved it when I got that response from a concierge in Nice, but they could come out with something positive or at least neutral, like, "thank you," "certainly," "coming right up," or "OK." "No problem" is a problem.

Sunday, November 11, 2007

Latest Crazy Idea to be Taken Seriously

A certain Giovanni Maria Pala, of Italy, claims that if you draw a musical score across Leonardo Da Vinci's "Last Supper" and put musical notes on the bread loaves and the hands of the disciples and read the result from right to left, you get a composition that Leonardo secretly worked into the painting. This has gotten a lot of press coverage for something so obviously, well, dotty.

Let me be honest here -- I haven't read a word of Pala's book. The news story claims he has some extrinsic evidence that the painting encodes a musical composition. Maybe he does. Maybe the whole thing is as true as, let's say, gospel.

But boy, I have my suspicions. My guess is that if you draw a score across any painting and choose your own rules about where the score goes and what items count as notes and whether you get to read left to right or right to left, you can come up with a pleasing tune. Heck, years ago researchers started making music by assigning notes to DNA strands (the DNA elements are named C, T, A, and G, so three of them are musical notes already, and if I recall correctly the researchers substituted B-flat for T), and it sounded pretty good.

My guess is that this is up there with the Bible Code -- a ludicrous attempt to claim that hidden messages were encoded into the Bible if you only chose the right starting point and read every nth letter, with the research getting to choose the starting point and the value of n, of course.

If anyone reads Pala's book and finds it persuasive, please let me know. But I'm not holding my breath.

Monday, November 5, 2007

Strike Solved

Dear me, the Hollywood writers have gone on strike. How will we get by without our Daily Show fix? Well, it'll be good for the blog -- content-starved viewers will become readers.

Apparently the big issue is payments for DVDs, Internet sales, and other new media. What I don't understand is this: the studios say that they can't increase payments for these media because "it is too early to know how much money they can make from offering entertainment on the Internet and on cell phones, iPods and other devices."

That statement would make sense if the contract had to call for some fixed payment, such as $1 per DVD sold. If it was too early to know whether the studio's profit on the DVD sale would be $10 or 10 cents, the studio would indeed be in a poor position to figure out what the writer's cut should be.

But I presume the studios have heard of percentages? Why can't the contract just provide that the writers get 3% or 5% or whatever percent of the studio's profit? That way, whether the studio makes a lot or a little, the writers get an appropriate share.

I know, I know, Hollywood is beset by bizarre accounting practices that ensure that studios don't earn profits, so everyone has to take a cut of the gross instead, which brings us back to the same problem as a fixed dollar payment. Well, do you want your accounting practices or do you want to solve your labor problem? You'd just have to provide for some fair accounting practices in the labor contract. Probably that would be better for everybody in the long run anyway.

There, I solved the strike. Can we get the Daily Show back now?

Wednesday, October 31, 2007

Tax Protestor Goes Down for the Count

My faithful readers know that I have an eccentric interest in tax protestors, those people who cling to crazy theories about why American's aren't legally required to pay income tax. Because criminal tax prosecutions require the government to prove that the defendant believed he had to pay income tax, every now and then a protestor does manage to get acquitted -- oddly enough, the more you can convince the jury that you really believe crazy tax protestor theories, the better off you are.

Well, the jury must have thought that Sherry Peel Jackson, CPA, ex-IRS agent and notorious tax protestor, whose crazy income tax theories can be viewed here, was smarter than she claimed, because they convicted her on four counts of failure to file.

I particularly liked her response at trial to section 1 of the tax code, which imposes a tax on the taxable income of "every married individual." When asked how she could have believed that this didn't apply to her, she testified "I couldn't find the definition of 'individual.'" Well, that clears that up, doesn't it?

It seems likely that Ms. Jackson will be the guest of the federal government for some time -- possibly up to four years, but I'm guessing about one year.

Protestors, if you read this, I hope you learn an important lesson from Ms. Jackson's conviction. If you don't like income tax, by all means agitate politically to get it repealed, but don't try to claim it doesn't exist. That craziness can land you in prison.

Saturday, October 27, 2007

Too Good to Be True

The Bush Administration has long been defined by its remark that "we create our own reality." Getting bad press? Just make up your own press. The Republicans tried this a couple of years ago with "Jeff Gannon," a fake reporter who asked softball questions at presidential press conferences. Now, they've gone one better.

FEMA, perhaps concerned about the bad press it got for the incompetence it displayed during Hurrican Katrina, decided to make sure it got some good press for its handling of the California wildfires. How to ensure this? Simple: stage a fake press conference in which FEMA's own employees pretend to be reporters asking questions.

The fraud was so blatant, the chutzpah so unbridled, that even the Bush administration has backed away this outrageous stunt. DHS spokesman Russ Knocke called it "totally unacceptable," although White House press secretary Dana Perino contented herself with calling it an "error in judgment."

FEMA has announced that it is "reviewing [its] press procedures." Reviewing the press procedures? Did the procedures previously say "Have agency employees pose as reporters"? Yes, that one will have to be changed. And if the procedures still include "Secretly pay syndicated columnists money to promote government policies" or "Give press credentials to political operatives posing as reporters," perhaps those could be changed too. Sheesh.

Thursday, October 25, 2007


We interrupt our normal cyncial news commentary to note two celebrations I attended, one yesterday and one today.

My old colleage Doug Letter of the U.S. Department of Justice won the Tom Clark award, given once a year by the Federal Bar Association to a lawyer for outstanding government service. Over 80 government agencies nominated lawyers for this award, and the committee selected Doug. Doug has served at DOJ 29 years and is now the Appellate Litigation Counsel and also, more recently, the Terrorism Litigation Counsel in the Department's Civil Division.

Among the many lovely things people said about Doug at the well-attended ceremony, the one that rang truest to me was when Acting Attorney General Peter Keisler mentioned Doug's reputation for ethical lawyering and said particularly that Doug never hesitates when choosing to act ethically. That was absolutely my experience in my four years as Doug's colleague.

Litigation involves constant ethical dilemmas -- at least once a week (probably more often in trial practice, but we only did appeals), you face some situation where you could gain an advantage by skirting the rules or even by doing something that was perfectly within the rules but just a little bit questionable. I can't tell you the number of times where I was in such a situation, and I usually took it to Doug. He never hesitated. Even when no actual violation of any law or rule was involved -- even when I just said that doing the advantageous thing would make me uncomfortable -- he would immediately say that we shouldn't try to win that way. He always plays it straight. He's given up innumerable opportunities to gain some small advantage for the government, but he's developed a reputation for ethical action that causes colleagues, government agencies, and courts to trust him, and that's proven far more valuable in the long run. Well done, Doug, and congratulations on your well-deserved honor.

Today I attended a ceremony commemorating the life of Senator Paul Wellstone and his wife Sheila, who died in a tragic plane crash five years ago today, just 11 days before the Senator was up for re-election. Congressman Keith Ellison hosted the ceremony, and Minnesota Senator Amy Klobuchar also spoke. Excerpts from the movie Wellstone! were shown, and then people shared stories of their memories of Paul and Sheila. It was very moving -- I had a vague understanding of Wellstone as quite a firebrand, but I didn't appreciate just how strongly that was true. His presence is missed.

Tuesday, October 23, 2007

Sign Me Up

I feel frustrated when the capitalist system fails to deliver products or services customers want -- I remember once going into a department store's shoe section and asking for a pair of galoshes, only to have the salesman, a hearty type, say, "Man, I wish I had a dollar for every guy that's been in here asking for galoshes. I'd be a rich man. We don't carry them."

What's wrong with this picture? If everyone was in there asking for galoshes, why didn't the store carry them?

So it's a pleasure to see the market deliver what we all so obviously want, a quiet hotel room. Apparently it's finally dawned on some hotel chains that guests don't like it when they can hear people watching TV in the next room or getting off the elevator or using the ice machine. They're actually thinking about noise as they build the walls, the doors, the electrical outlets.

Now I just need my refrigerator redone the same way.

Sunday, October 21, 2007

Tough Talk

Our Vice President never tires of rattling his sabre. In his latest speech, he declares that the U.S. and other nations will not allow Iran to acquire nuclear weapons.

Just two questions for the Veep:

1. Exactly how will we stop Iran from acquiring nuclear weapons?

2. Given how thinly stretched our military is in Iraq, do we even have a credible threat of carrying out military action against Iran?

Answers accepted any time.

Dumbledore Comes Out

Stop the presses -- it turns out the rumors are true, Albus Dumbledore is gay. He was in love with his great rival Gellert Grindelwald, whom he defeated in a duel years ago.

Fans have long suspected something was up with Dumbledore's sexuality, because there's no reference to a wife or even girlfriend in his past. But wait a minute . . . there's no spouse in the picture for any of the Hogwarts professors. Snape, McGonagall, Flitwick, Trelawney, Sprout -- why are none of them married? They all spend their Christmas at Hogwarts. Even Gilderoy Lockhart, the hearthrob of middle-aged witches everywhere, doesn't seem to have so much as a girlfriend. And you never hear about the spouse of any of the lesser professor characters or the other staff -- Vector, Binns (OK, he's a ghost), Grubbly-Plank, Hooch, Pomfrey the nurse, Filch the caretaker. All single. Hagrid's the only one who so much as goes out on a date, and of course he's not exactly a professor.

On behalf of professors of the world, I object to this slanderous portayal of professors! We have love interests too, you know. Did J.K. Rowling have a bad experience with her professors at school? Is she settling some old scores?

Wednesday, October 17, 2007

Of Local Interest

Step into a DC taxicab, and you're almost guaranteed to feel like you're getting ripped off, whether you are or not. DC is about the only major U.S. city where taxi prices are determined by a "zone" system rather than by time-and-distance meters. Even if you've lived here forever (and I'm now about halfway) it's pretty much impossible to figure out the system. The zone map -- get this -- has northeast at the top, so it looks unfamiliar even to a regular rider. (The taxi commission finally came out with a map that has north at the top about a year ago, but I have yet to see it in most cabs). You're never sure how many zones you've crossed. And then the cabbies are always inventing charges for bags, fuel surcharges, and other charges that might be mythical but that might have been approved in some recent commission action you didn't notice. And of course the per-passenger charge is a longstanding headache.

And yet every now and then you do get the benefit of the system, which was (according to lore) designed to make trips cheap for high-powered lobbyists who need to jet around the capitol area. Just the other day I had to take a cab from the Omni Shoreham hotel to a restaurant in Georgetown at the height of rush hour and the trip seemed to go on forever, but only cost $8.80, I believe, and it might even have been the one-zone fare of $6.50. Whatever it was, I remember being pleasantly surprised. It was rare because feeling ripped off is so much more common.

Well, all of this is to end soon, or so says the mayor -- he announced today that D.C. cabs will have meters.

Let's just say that I'll believe it when I see it. A plan to switch to meters is announced about once every two years, in my experience, and it's never actually happened yet. Somehow the cabbies always manage to block it. They say it's because it will lead to more industry consolidation, but I believe the explanation I heard from a longtime cabbie once:

If cabs have meters, he explained, the meter keeps track of how much you earn. And if there's a record, you have to pay your income tax.

Sunday, October 14, 2007

Sauce for the Gander

As Congress ponders whether to extend presidential power to engage in warrantless wiretapping without judicial supervision, we would all do well to ponder these words from a wise critic of excessive executive power: "In any country, if you don't have countervailing institutions, the power of any one president is problematic for democratic development."

The critic? Secretary of State Condoleezza Rice. Of course, she was speaking about Russia, but her words are equally applicable to the U.S.

Friday, October 12, 2007

A Moderate Moment

Illinois's legislature, overriding the state Governor's veto, has mandated a moment of silence at the start of the school day. Naturally, some people are upset that that new law is "a way to sneak state-sanctioned prayer back into public schools."

Liberals need to take a break from indignation now and then. Sure, the lawmakers are hoping that students will use the moment of silence to pray. Apparently the law even says that the moment is for "silent prayer or for silent reflection on the anticipated activities of the day." So I don't think there's much doubt about the purpose.

But so what? No one is forcing anyone to pray. Students can silently pray at any time, with or without this law. Students are required to be silent at lots of time during the school day -- when the teacher is trying to teach the class, just for example -- so there can hardly be anything unconstitutional about requiring student silence.

Sometimes you just have to accept that something is a perfectly legal work-around even though you don't like the underlying purpose and something slightly different would be unconstitutional. The unconstitutional aspect of school prayer is the state sponsorship inherent in teacher involvement. Just having everyone be silent for a few moments, with no one saying what to do during that time, is fine. Religious students can pray; others can focus their energies on the upcoming day or even think about something funny or mischevous. This isn't a problem.

Thursday, October 11, 2007

Sad Story

I was somewhat disappointed to see the headline "Now I Know the Dead Stay With Us" in the Washington Post. It's a first-person account by a woman who lost her son and was distraught to the point of suicide, but who was comforted by a medium who claimed to transmit messages to her from her deceased son.

On the one hand, of course, it can't be all bad that someone found something that brought peace to someone in such distress. But on the other hand, the fraud is so palpable that it's hard to avoid being offended. Be sure to listen to the audio clip of the medium's session. It contains such gems as "he wants to . . . thank you very much for your act of kindness . . . he says to thank you . . . I've heard you talk, he's saying . . . he's joking with you, he wants to know if you're going to get a tattoo with his face on it, and he winks his eye at you . . . coming here today is not something he's against, because he's open, he's open minded . . . he seems very liberal, yet very conservative at the same time . . . he doesn't want to be remembered for the way he passed, for some reason, he wants to be remembered for life . . . he wants to be remembered if he made somebody laugh, or smile . . . he wants people to find the humor, even in him."

Is there a word in this that could not be delivered as a purported message from anybody's spirit? And this from someone the author called a "reputable medium." The story doesn't say whether the author paid money for these stunning words from her late son, but I'm guessing that even the most "reputable" mediums don't transmit spirit messages for nothing.

These frauds are eternal. Over 100 years ago, in Life on the Mississippi, Mark Twain reported a session of similar pablum from a medium who reported that the deceased friend was living happily in the spirit world, but who couldn't get the spirit to correctly report what year he died, or whether by a natural death or by violence. As Twain concluded, "if this man is not the paltriest fraud that lives, I owe him an apology."

There will always be gullible people who fall for these fraudulent messages, but I might have hoped that they wouldn't include editors at the Washington Post. Why was this published?

Tuesday, October 9, 2007

The Terror Presidency's Lawyer

Just finished The Terror Presidency, the new book by my old friend and classmate Jack Goldsmith. I recommend it -- it's not the tell-all you might wish for, but it's a pretty interesting tell-some. Jack does his best job in explaining the competing pressures the administration is under: on the one hand, those charged with protecting the country are terrified of the next terrorist attack and urgently want to be aggressive in taking every step that might block it, but on the other hand, they face pressure to be prudent and cautious lest they take actions that some later administration, independent prosecutor, or international tribunal might view as criminal. And to top it off, the laws telling them what they can and cannot do are complex and ambiguous. My distaste for the administration's hubris is certainly not erased, but I have a better understanding of the pressures they face.

Saturday, October 6, 2007

Not Free -- At Last!

I always know when something's up with those zany tax protestors, because the hits on my income tax pages start climbing. Yesterday, I had almost 2800 page loads from nearly 1600 different visitors -- a new record.

What's up? The nation's hottest protestors, Ed and Elaine Brown (or, as she likes to call herself, "Elaine Alice: family Brown") were finally taken into custody by U.S. Marshals after evading arrest for nearly a year.

Their strange saga began in January, when they were convicted in federal court of conspiring to avoid paying taxes on nearly $2 million in income between 1996 and 2003. Dissatisifed with the court's failure to accept their arguments that there is no law requiring them to pay income tax, the Browns stopped attending the trial about halfway through. In April, they were sentenced, in absentia, to 63 months in prison.

But the Browns had a strategy for avoiding the judgment: they holed themselves up in their "fortress-like" home with plenty of food, water, and ammunition, and threatened a fiery, Waco-like finish if they feds came after them: ''We either walk out of here free or we die,'' Ed Brown said. A series of colorful supporters, including Randy Weaver of Ruby Ridge fame, showed up at the Browns' New Hampshire place for rallies and press conferences and some provided them with fresh supplies.

With admirable (if somewhat frustratingly long) restraint, U.S. Marshal Stephen Monier decided to wait until he could plan an arrest that could take place without violence. That occurred late Thursday evening. Visitors to the Browns' place had dwindled since the Marshals arrested four of them two weeks ago for aiding and abetting the Browns. They welcomed a few supporters Thursday, but those supporters turned out to be U.S. Marshals, who arrested the Browns without incident. You might think that if you were holed up in your home avoiding arrest you'd be a little more careful about whom you let in, but then if you had that kind of smarts you might not be holed up in your home in the first place.

Throughout their ordeal, the Browns said that if only someone would show them the law that requires payment of income tax, they would pay immediately. Of course the law has been available on my web pages the whole time.

By the way, what's up with "Elaine Alice: family Brown"? Believe it or not, some tax protestors actually believe that inserting a colon into your name somehow protects you from tax liability. But that's considered a little wacky even among tax protestors.

Friday, October 5, 2007

The Man Who Wouldn't Leave

Face it, even if you'd had years of experience as a political consultant, you wouldn't have come up with as brilliant a strategy as the one Senator Larry Craig stumbled into. When the glare of the spotlight was hottest, and his own party was baying for his head, he did the one thing he could to take the pressure off -- he said he'd resign. Then, a month later, he simply announces that he'll stay! Now his story is old news. People don't seem nearly as exercised. The Post says that Republican Senators are "furious," but I think the general public isn't as concerned as it was before. In hindsight, Craig's strategy brilliantly managed to put things off until they'd cooled down.

Should Craig go? The public's also had time to grasp that what he did wasn't that terrible, apart from the hypocrisy involved. I haven't looked up the state law, but I have doubts that simply soliciting sex, even from a stranger, is really a crime at all -- if you say to someone in a bar, "would you like to go back to my place and have sex?" that's no crime, and I doubt the state could even make it one if it wanted to. That the sex involved in this case would have been homosexual rather than heterosexual is irrelevant.

On the other hand, I presume a state could make it a crime to actually have sex in a public place like an airport bathroom -- the state has a legitimate interest in protecting the equanimity of the public, particularly children, who might unwillingly see or hear it -- and therefore, if Senator Craig asked the police officer to have sex in the bathroom, that would be an inchoate crime. Of course, it's a little tough to know exactly what Craig suggested, since everything happened wordlessly. I guess it's possible that the coded signals Craig allegedly sent could mean "let's do it right here" to those in on the code. It would be up to the prosecution to prove that, and for a jury to decide, but personally I'm skeptical -- it would be tough to exclude the possibility that the alleged signals would just have been the prelude to slipping off to a private place like a nearby hotel room.

So it's not clear that the Senator really did anything so terrible that it would be grounds for leaving the Senate. I guess I would say that (if the police officer's allegations are true) it does show very poor judgment for a public figure to reveal his deepest secrets to a random stranger. But in the end, the most important factor seems to be that Idaho has a Republican governor (who would appoint Craig's successor if he left), whereas Louisiana (home of Senator Vitter, who's apparently been up to some other illegal sex) has a Democrat.

Friday, September 21, 2007

Free at Last!

What a pleasure to see the NY Times give up on Times Select and let us all read the Times columnists on line for free. My life is improved 2% right away.

I don't really get my news from the Times anyway. I read all of it sometimes and some of it all the time, but I would say that on the whole I get most of my news from NPR and I read the Times mainly for the editorials. Times Select walled off just the part I most wanted. It was a pain having to find a physical copy, and it wasn't worth subscribing just for the editorial page.

So this is great for me. I hope it's good for the Times too. They deserve to make money. I know newspapers are having a tough time in the Internet age, but I'm afraid they'll just have to figure out how to make money online from ad revenue. You're just not going to convince enough people to pay money to subscribe when too many news sources are giving themselves away for free.

Tuesday, September 18, 2007

D.C. Vote Vote

The Senate votes on cloture today on the D.C. Voting Rights Act. I've already weighed in on this one -- it's a great policy idea, but sadly unconstitutional. Details here. And here. And a little bit here.

Sunday, September 16, 2007

Blood and Treasure

NYT colmumnist Frank Rich becomes the latest to complain about all the "treasure" that America is expending on the Iraq war. He says "troops and treasure," although I've been hearing "blood and treasure" a lot lately.

What is up with this "treasure" business? Are we funding the war with gold dubloons?

Is it too crass to complain about all of the MONEY we're wasting? Google reveals that "blood and treasure" can be found in a quotation from John Adams, so maybe this is supposed to be some kind of highbrow allusion, but really, I'm sensing that people are just a little reluctant to point out that we're spending a shatteringly large pile of cash in Iraq and getting a big mess in return.

Is the problem that complaining about money would make one seem insensitive to the loss of life? I'm all for putting the lives first -- it's tragic that thousands of our troops have died in this misadventure, to say nothing of all the other lives lost. But money is a legitimate concern too, particularly when you consider what else it could buy. We're spending over $100 billion per year, and that's just the direct spending cost. Normally, one might expect fiscal conservatives to holler loudly about the money.

Let's stop calling it "treasure." Americans have a right to complain about many things connected with this war, and one is the waste of good old money. This war is a huge, inefficient government program, and at the moment it looks like we're going to spend hundreds of billions more and in the end have nothing to show for it.

Saturday, September 15, 2007

Sign of the Times

My old torts professor, Guido Calabresi (now the Honorable Guido Calabresi, a judge on the U.S. Court of Appeals for the Second Circuit) always loved to point out how the common law reflected values and how it continually modified itself to keep up with the times and with shifting values and technology. In the old West, in states where farming interests were dominant, a rancher was liable for crop damage cause by a cow that wandered onto a neighboring farm, but in states where ranching interests were dominant, the rancher was liable only if the cow broke through a fence to reach the farm -- and fences couldn't be built because they were prohibitively expensive. But then the invention of barbed wire made fences cheap.

Guido must be savoring the latest news from Virginia: the Supreme Court there has altered the ancient common law rule of tree liability. The case arose when a certain Richard Fancher, of Fairfax County, Virginia, noticed that a large "sweet gum" tree on his neighbor's property was acting awfully aggressive: its roots were bulging through the retaining wall that divided the properties, disarranging his patio, and blocking his sewer pipes. Fancher complained to the neighbor, but the neighbor, who I presume liked that big, old tree, wouldn't. And Fancher ran into his powerlessness under the old law of trees.

The old rule was that if a tree on your neighbor's property started to encroach onto yours, your remedy was limited to "self-help": you could cut back the tree's roots and branches as far as the property line. But you had no right to have the tree cut down and no remedy against the damage it did. The law favored the tree owner. Virginia actually followed a slight variant of this rule -- you had a remedy if the tree was "noxious," but of course that required the rather difficult determination of which trees were "noxious."

Yesterday's decision changed the law -- at least in Virginia. And the change is a lovely reflection of the common law moving with the times. The old rule, the court said, was appropriate to its day, when conditions were rural and the population engaged in agriculture. The rule, however, is unsuitable to modern, urban and suburban life. So the court overruled the old case and held that while you still cannot complain about your neighbor's trees insofar as they block the sun or drop leaves, flowers, or fruit, if they are causing actual harm or are imminently likely to do so, they can be regarded as a "nuisance," which gives you a remedy against your neighbor.

Now, here's your assignment: how would you rule in the next case, in which the plaintiff makes the modern, increasingly heard claim, "my neighbor's tree is blocking my cell phone reception"?

Tuesday, September 4, 2007

My Day in Court

It was time last week for my biannual service to the D.C. government: jury duty. Apparently, half the people summoned deal with it by not showing up, but of course I, being the law-abiding citizen that I am, always go. Besides, I hear they've started to arrest people who don't.

I'm never impaneled. I've always wanted to serve on a jury -- a useful experience for a Civil Procedure professor, I would think -- but as soon as the lawyers hear what I do, it's all over. Sometimes I can see them playing chicken over me -- I'll survive a few rounds in the jury box, as each lawyer waits for the other to use a peremptory challenge on me. I don't try to avoid service -- I answer the voir dire questions properly and I say that I would be fair to both sides and follow the judge's instructions, which I would, but I'm always struck off.

The only problem is that it can take a long time to get told to go home. This time it took 8 hours. The judge summoned a venire of 78 people and interviewed them one by one to get a jury of 12. We were there from 8:30 am to 4:30 pm. It seems rather crazy. I don't think that's how they did it in the old days.

The only fun part is that there's often someone famous on the venire. The first time I served, it was Robert Bork. When the judge asked if anyone had worked at a law enforcement agency, he stood up and said diffidently, "I used to work at the Department of Justice." The best part was that it happened to be the first Monday in October -- the day the Supreme Court always starts its annual Term. I wanted to go up to him afterward and say, "so, back in court on the first Monday in October -- not quite what you had in mind!" But I didn't.

Thursday, August 30, 2007

Easy Act to Follow

As President Bush thinks about replacing AGAG, he needs to find someone of unimpeachable stature, who could get 90 votes in the Senate without breathing hard and who'd run the Department in a way that would make everyone proud.

It's so obvious. But will he do it? If past performance is any indicator of future results, in the end he'll choose someone who'll just be even more controversial and who'll have us yearning for the old days of Ashcroft and Gonzales.

It's a comfort to read that, for once, Bush is at least trying to think about finding a highly qualified candidate. But we'll see if he can come up with one who'd be willing to take the job.

Tuesday, August 28, 2007

The Harder They Fall

D0 all conservative Republicans have secret sex lives? Or is it just the evangelical preachers and government officials?

OK, I'm not serious. But it does seem as though the more morally righteous they are on the outside, the more likely they are to end up admitting to an unnamed "very serious sin" when their phone number turns up in an escort service's records. Of course Democrats have sex scandals too. But it just seems more hypocritical when it happens to moralistic Republicans.

The latest is of course Idaho Senator Larry Craig, who says he's "not gay," as though that were the problem with being caught soliciting sex in a public restroom.

Of course, he also says he wasn't soliciting sex, that the whole thing was a misunderstanding, and maybe it was, although in his official guilty plea to a criminal charge he acknowledged that he "engaged in (physical) conduct which [he] knew or should have known tended to arouse alarm or resentment."

The Senator did get one thing right -- he says he made an error in pleading guilty without seeking the advice of counsel. What was he thinking?

Faithful readers, if you are charged with a crime, get a lawyer. I'm not trying to drum up business here. I'm just pointing out that if a U.S. Senator makes a bad decision in pleading guilty, what chance do the rest of us have?

Monday, August 27, 2007

August Surprise

At least he had the guts to announce it on a Monday. I'm surprised they didn't release the news late Friday, when the decision was, apparently, made.

Friday, August 24, 2007

Culture Controversy

Faithful readers, I know you have been disappointed by the lack of content recently, but I've been unusually busy for a professor in August, and besides, August is silly season, so the news hasn't been attracting my blogger attention. Regular blogging to resume after Labor Day, I hope.

I was, though, struck by this item in today's Times: a public charter school in Florida is attracting controversy by -- gasp! -- teaching Hebrew. Some people are claiming this to be a violation of the separation of church and state.

As always, it's tough to get a full sense of the legal issues involved by reading a newspaper account, although this article does a pretty good job of bringing out important points. But let's note some basics. First, there can't possibly be a constitutional objection to a public school's teaching Hebrew. Schools teach French, Spanish, German, Latin, and all manner of languages. Hebrew can't be forbidden just because it's associated with Judaism.

The article observes that the Hebrew classes would also discuss some aspects of Jewish culture. Again, I would have to say, this is unobjectionable. When I took French classes, the books and classes always had some discussion of French culture. That's just a standard part of language class.

Now, things could go overboard. One of the potential textbooks had students translating the phrases “Our Holy Torah is dear to us” and “Man is redeemed from his sins through repentance.” That does seem to be pushing the envelope. But it sounds from the article as though the school's officials are taking considerable care to keep the instruction secular -- for example, they decided not to post a sign saying "weclome" in Hebrew, because the literal translation is "blessed are those who come." And they don't ask those applying to attend whether they are Jewish -- some of the students are Baptists.

So I would say, let's not get too excited. If there's a demand for bilingual Hebrew / English instruction, it can't be unconstitutional per se to fill it, any more than for Spanish / English instruction. Care will be needed to see that the classes are secular. Outside scrutiny is appropriate, but just as the school shouldn't be allowed to use public money to teach religion, neither should it be punished for offering secular instruction that would appeal specially to members of a particular religious group.

Friday, August 17, 2007

Criminal Justice Working Fine

A jury convicted Jose Padilla of terrorism conspiracy charges yesterday, exposing him to a possible sentence of life in prison.

Well, isn't that nice. After three years of telling us that Padilla was so dangerous that the criminal justice system couldn't handle him, the Bush Administration sends him through the criminal justice system, which handled him just fine and produced the desired conviction.

Naturally, the Administration is touting this as an important victory, which it sort of is. But isn't it evidence against the Administration's theory that it has a vital need to keep all alleged enemy combatants in legal limbo forever?

Friday, August 10, 2007

Shrunken Giant

Picked up the New York Times this week? Not the cyberspace version, but the actual, old-fashioned newspaper? Did it feel funny? Something vaguely different? That's right, it's smaller. The New York Times is smaller. They shrank the newspaper.

I suppose it shouldn't really make any difference. What matters most is what's in the newspaper. The format will change from time to time. I quickly got used to the big change from 8-column format to 6-column years ago. It was a good when they added color. So change is good.

But it is still a little unsettling when one of one's daily icons, one of the anchors of one's life, just feels funny when you pick it up. The editorial page looks off balance. The whole thing doesn't sit right in the hands somehow.

We're all getting older. The Times is feeling the pinch. They'll apparently save $10 million annually with this format. Time marches on. The Times marches on. Soon we won't even notice. But for this week, at least, I'll remember the old format with fondness.

Wednesday, August 8, 2007

Big Small Story

A sleeper story in today's WaPo: retirements of judges has left the U.S. Court of Appeals for the Fourth Circuit evenly split between Democratic and Republican appointees.

Finished yawning yet? It's actually quite important. The Fourth Circuit (covering Maryland, Virginia, West Virginia, and the Carolinas) is the nation's most conservative court on many issues -- more conservative than the Supreme Court. The government takes advantage of the court in many ways, such as sneaking terror detainees into the court's jurisdiction so that this conservative court will be the one to rule on the detention's lawfulness. With the even split suggesting that the court may not be so conservative any more, the government's maneuvering room is reduced.

I remember arguing before the Fourth Circuit once in a pro bono case I took after I started teaching. The case was about state sovereign immunity (the doctrine that you can't sue a state government unless it consents to the suit), which is a big conservative issue. The Fourth Circuit was probably the least friendly place in the whole country to litigate the issue. But it was a close case and a lot depended on which three judges happened to be on the panel (three judges are drawn at random from the dozen or so judges on the full court). An old friend of mine who clerked on the court told me, "you'd better pray you don't get Wilkinson or Luttig." Naturally, I got both of them. It wasn't pretty.

Surprisingly, President Bush hasn't even nominated judges for the five vacant spots on the court. The administration claims to be "actively working" on finding nominees. I've always said that when the White House and the Senate are controlled by different parties, the solution is moderate, compromise candidates for judgeships. But this administration rarely seems interested in compromise. Well, if the result is no appointments until the next president, I won't shed any tears.

Monday, August 6, 2007

Guns Gone Astray

It's become a cliche that the Bush Administration is so intent on vindicating the conservative belief that government is incompetent that it almost seems to screw things up deliberately. But really, this is too much. Of the 355,000 pistols and AK-47 rifles that the U.S. has distributed to Iraqi forces, 190,000 are missing, according to a new GAO report. Pentagon officials "really have no idea where they are." Hmmm, could they be in the hands of the insurgents who are fighting us?

I'm sure it's not easy keeping track of things amid the hubbub of war. But the GAO found no problems accounting for weapons distributed to the Bosnian Federation Army during the Bosnian conflict. So it's not impossible to do these things properly. But one has to believe that a government intent on proving that government is bad is more likely to do a bad job.

And by the way, who was in charge of security training during the period when, according to GAO, "distribution was haphazard and rushed and failed to follow established procedures"? None other than Gen. David H. Petraeus, who's now in charge of the whole shooting match. Let's hope he's keeping better track of things now.

Friday, August 3, 2007

Home Town Call

Henrico County Judge Archer L. Yeatts III declared Virginia's new abusive driver fees unconstitutional, on the ground that the violate the Constitution's Equal Protection Clause because they apply only to Virginia residents, not drivers from out of state who commit the same violations.

Hmm, I can't find the decision on line, but I just don't see it. Suppose a state said, "the annual driver's license fee in this state depends on the number of points you have on your driver's license. It's $25 if you have no points, but then it's an extra $25 for each point you have."

Could there be anything wrong with that? The state's driver's license fee would apply, necessarily, only to people who sought a driver's license from that state. Out of staters wouldn't have to pay it. But so what? Could that possibly violate the Equal Protection Clause? I don't see how a state can be prevented from having a driver's license fee system that varies according to the proven tendency of each driver to violate the state's laws.

Well, I shouldn't really pass judgment without having seen the court's opinion, or even the actual underlying law. The right outcome could depend on exactly how Virginia has the fees set up, I suppose. But it certainly seems to me that Virginia could set up its fees to be perfectly constitutional, by just making them a condition of one's Virginia driver's license. Then they naturally would apply only to people in Virginia.

Wednesday, August 1, 2007

Fare Wars

If you think the Iraq war has dragged on a long time, you should take a look at the war over D.C. taxicab fares. Ever since I've moved to town, there have been proposals to replace D.C.'s bizarre, antiquated zone system with a meter system -- like every other city has. Every couple of years it is announced that we are switching to meters. But it never actually happens.

The latest news is that a meeting to discuss the current meter proposal had to be canceled -- because the likely attendance was too big for the room!

There's nothing like a D.C. cab ride. Not only is the fare too high, but you have no idea what it's going to be. The zone map traditionally had northeast at the top, making it extra difficult to fathom. It's finally been replaced by a map with north at the top as usual, but I haven't seen the new map in an actual cab yet. There's an extra charge per passenger (what other city has that?), cabbies are allowed to pick up another fare while you're in the cab, and cabbies also love to tack on a "fuel surcharge" or "bag charge" that they might or might not have made up.

I used to wonder why cabbies were so intent on keeping the zone fare. Finally, one of them pointed out to me that if you have a meter, it keeps track of your income. And if it keeps track of your income, you have to pay income tax on it. I'm not accusing all D.C. cabbies of not declaring their income, but that sure does sound like a reason for them to want to stick with their zones.

U.S. Attorneys Update

Ah, those U.S. Attorneys . . . it's the scandal that keeps on scandaling. The latest is that John Brownlee, U.S. Attorney in Roanoke, Virginia, received an unusual late-night call from Michael Elston, the chief of staff to the Deputy Attorney General Paul McNulty, asking him to slow down a settlement of a criminal case against the manufacturer of OxyContin. Brownlee went ahead with the guilty plea anyway, and, what do you know, eight days later he found himself on a list, prepared by Elston, of U.S. Attorneys to be removed. (In the end, he kept his job.)

As the Post article explains, it is not inherently suspicious for senior Justice Department officials to have some input on individual cases. But the suspicious thing is, as it has long been, this: according to Elston's lawyer, the list reflected recommendations Elston "had received from others in the administration, not his own views."

Look, this scandal has been going on for months now. Dick Cheney calls it "a bit of a witch hunt" and claims that "there's no charge" or allegation of wrongdoing. But if there were a legitimate explanation for why each U.S. Attorney got fired, wouldn't DOJ have been able to produce it by now? Wouldn't we at least know who made up the ultimate list? Why is the list always the product of recommendations by nameless "others"? Why is the reaons for putting names on the list always something like, "it was the consensus recommendation" or "it was the advice I got from others"?

Sorry, Mr. Vice President, but if you guys can't even tell us who made up the list and why each name got put on it, we're entitled to draw an adverse inference. If there's a legitimate reason why the U.S. Attorneys got fired, let us know. The fact that you can't, after all this time, strongly suggests that they were fired for improper reasons.

Tuesday, July 31, 2007

More Cold Cash

U.S. Representative William Jefferson kept his cash in the freezer; Bill Allen, the chief executive of Veco, handed his out in Alaska to members of the state legislature. The FBI and the IRS have now raided the home of Alaska U.S. Senator Ted Stevens.

My favorite part of the story is that "The Alaska investigation has centered on Allen's efforts to bribe lawmakers by handing out wads of hundred-dollar bills." If you wanted to bribe people, that sure sounds like a good technique.

Stevens asks the public to withhold judgment until all the facts can come out and says that he plans to run for reelection in 2008. Could this be our chance to finally rid the Senate of the famed promoter of the Bridge to Nowhere?

Monday, July 30, 2007

Gonzales and Reality

You know things are getting bad when you need a chart to keep track of the misstatements (or, to put it less politely, lies) the Attorney General is accused of. It's hardly the first time we've had reason to question the candor of Alberto Gonzales (does anyone else think of him as "A.G. A.G.," by the way?), but things are getting out of hand.

The latest news is that a credible source -- well, it's only the Director of the F.B.I. -- contradicts (or, as CNN delicately puts it, "appears to contradict") A.G. A.G.'s account of the infamous night visit to John Ashcroft's hospital room. Gonzales says he wasn't there to talk about the terrorist surveillance program; Mueller says he was. But maybe there are two programs? Could they each be using codespeak for something slightly different?

If Gonzales was a pillar of the community with outstanding credibility, this could all be shrugged off as a misunderstanding. The problem is that he's made so many questionable statements that one hesitates to give him the benefit of the doubt. Senator Leahy has sagely given Gonzales a week to "amend" his testimony. A.G. A.G. should take this last chance to set the record straight.

Friday, July 27, 2007

Not Funny in New Zealand

I'm not one of these people who gets their news from the Daily Show, but sometimes, it is just the most informative place around. If you weren't watching it last night, I bet you didn't know that New Zealand has passed a law prohibiting the use of images captured in its parliament for the purpose of "satire, ridicule, or denigration." Try finding that story in the New York Times or the Washington Post.

So what's more interesting here: that we have to rely on Jon Stewart to bring us international news, or the news itself? I'll go for the news. What are those New Zealanders thinking? (And by the way, I'm sure they have a cute nickname that would have been more appropriate in the last sentence but I have no idea what it is.) I guess it's one of those countries that doesn't really have a constitution (there's another thing I don't know about New Zealand -- Wikipedia to the rescue); it probably revels in its "unwritten constitution," which to us Americans is another word for "not having a constitution at all." Laws like this show why you need a constitution with a Free Speech Clause. It's hard to believe that democratically elected politicians could be so stupid as to pass a law against satiring themselves -- surely if you were such a politician it would occur to you that 71% of the population would disapprove -- but politicians will do anything if they're not constitutionally constrained (and I know, I know, in America some politicians will do anything even if they are constitutionally constrained, but at least it seems better to have the constraint).

Political satire will survive in New Zealand, I'm sure -- I wouldn't want to be the prosecutor who has to bring the first case against New Zealand's equivalent of the Daily Show (I actually looked up some New Zealand nicknames to create an appropriate in-joke name for New Zealand's Daily Show, but believe me, if I had put it in there you wouldn't have understood anyway) -- but it's somewhat amazing to see such a blatant and pointless assault on free speech in a democratic country. I'll stick with the written Constitution, thanks.

Wednesday, July 25, 2007

Those Darned Wizards

Just one thought about Harry Potter and the Deathly Hallows (not a spoiler, don't worry, this is something that was already clear from previous books in the series):

Wizards (and witches) can make some pretty incredible, stunningly dangerous spells come out of their wands. The spells can stun you, cause you horrible pain, make your body swell up, make you do the spellcaster's bidding, slice parts of your body off, or, of course, kill you.

But -- they can't aim themselves.

Apparently the magical community has spent centuries perfecting what the spells do, but never seems to have given a moment's thought to improving the spells' ability to hit their targets. No, they just wave their wands in the general direction of the target and hope for the best. The spell itself apparently appears as a bolt of visible light (green light, if it's the death spell), which zooms toward the target, but not so fast that the target can't see the spell and twist out of the way.

Didn't it ever occur to these folks that if they can make a bolt of light come out of a hickory stick and kill someone or overpower his mind, they might want to equip that light with just a tiny bit more intelligence and have it follow the target as the target tries to run away? It must take a fair bit of mental capacity for a bolt of light to take over someone's brain; surely it could sense where the brain is and follow it? At least give it some heat-seeking desires.

Sheesh. Even we Muggles realized a long time ago that it's no use having a great missile if the missile doesn't hit its target. A couple of heat-seeking servomechanisms help a lot. You'd think somebody might have worked out a magical equivalent.

And if not, could they at least send the students out for target practice once in a while? That skill seems sadly missing from the Hogwarts curriculum.