Saturday, July 6

More Links

Over the last few days I've noticed a number of visitors coming here by way of Denise Howell's Bag and Baggage. Denise, a California lawyer, devoted a long post last week to a subject near and dear to my heart, the federal appellate courts' use of unpublished opinions. Denise also has a comprehensive list of what she calls "blawgs": blogs by lawyers, legal academics, court clerks, law librarians, and so on. Onto the blogroll she goes.

Tom Tomorrow should need no introduction, but in case he does: he creates some of the most pointed political cartoons around today, a number of which adorn the work area in my office. He also has a sharp, unabashedly left-wing blog.

Update: Oops, I meant to add Mac Thomason's as well. There.

Friday, July 5

Blogger Woes

Blogger had a major breakdown, which made posting impossible today. That made me realize how much a part of my life this site has become, as I found myself checking Blogger's status again and again throughout the course of the day (I'm not addicted. Really. I can quit any time I want. Just let me make one more post… Come on… just… ONE… MORE… POST!!!).

Anway, I've now ponied up for Blogger Pro, since its servers are functioning. In general, Blogger has proved worth supporting financially. My posts for the day are below, in the order I wrote them.

Remember, the first hit is always free.

The Splendid Splinter

Ted Williams, Hall of Fame former outfielder for the Boston Red Sox, is dead at the age of 83. Baseball's last .400 hitter—he batted .406 in 1941—Williams's most remarkable feat may have been leading the majors in batting average with a .388 mark in 1957, at the age of 39. Williams ended his career with a batting average of .344 and belted 521 home runs despite dedicating almost five full seasons in his prime to military service in World War II and Korea.

Williams spent much of his career locked in a spirited rivalry with the Yankees' Joe DiMaggio. My mother, who spent her prime years of baseball fandom in New York in the late 1940s, adored DiMaggio, but while she passed on her love of baseball to me, I always preferred Williams. I'm not sure why. It wasn't personal experience—Williams hit his final home run, in his final career at-bat, nearly four years before I was born. Maybe it was because I grew up a Mets fan (a preference to which my mother graciously acceded) and therefore a Yankee hater (although I certainly didn't hate DiMaggio). Maybe it was because of an innate preference for the second-place finisher who deserves better (I use a Macintosh, after all). Maybe it was because, while DiMaggio became more and more of a recluse over time, Williams remained deeply appreciative of and involved in the game until the final years of his life, when his health failed. Williams used his 1966 Hall of Fame induction speech to push for recognition of Negro League stars; in the past decade he befriended modern stars like Tony Gwynn and Nomar Garciaparra. And any remaining rift between Williams and the Boston fans was healed for good at the 1999 All-Star Game, when Williams, surrounded by past and present baseball greats, threw out the first pitch at Fenway Park.

I only ever saw Williams play on film, of course, but his swing remains etched in my mind. So many power hitters overswing. I think of the classic picture of Reggie Jackson, a Sports Illustrated cover from his early days as a Yankee: Jackson coiled like a corkscrew on his follow-through. He had missed the pitch: when he connected, the ball went a long way, but when he didn't, he looked bad. Williams didn't swing like that. He had great strength, of course, and a whiplike motion in his swing that generated considerable power. But he was controlled, disciplined. One modern player whose swing resembled Williams's was Darryl Strawberry—both were tall, lanky men, and Strawberry's swing had the same whiplike motion. But Strawberry lacked discipline, at the plate and in life, and ultimately squandered his enormous talent; Williams, on the other hand, worked relentlessly to improve himself. He always wanted it said of him, and ultimately he got what he wanted:

There goes the greatest hitter who ever played the game.

The Iraq Plan

N.Z. Bear asks some interesting questions about today's New York Times article (free registration required) purporting to detail the military's plan for invading Iraq. Questions like: Why did the Times base such an important article on a single source, and a disgruntled source at that? And, more to the point, why is the Times publishing an article about the plan for possible future military action? Doesn't that, um, HELP THE ENEMY?


There's something very peculiar about the way the public identification of yesterday's LAX shooter was handled. We now know that he was 41-year-old Hesham Mohamed Hadayet, an Egyptian national who came to the United States ten years ago and who ran a limousine service in Irvine, California. Yesterday, however, we were not given a name, but were being told that he was a 52-year-old man of unknown nationality. Note the age: 52. Not "middle-aged," not "early 50s," but 52. That's a very precise number for an unknown individual who apparently carried no identification.

I can think of a couple of possible explanations for the odd bit of initial information. It's possible that the FBI thought they had identified the shooter as a 52-year-old man of whom they knew, an identification that later proved to be mistaken. If so, the provision of the man's age could simply have been a slip-up, or it could have been meant as a signal to the public that, even though a name was not yet released, the FBI had indeed made an identification. If the latter, it's hard to imagine why the FBI would have thought this was a helpful course of action, as the release of the man's age without a name prompted fevered speculation on the web and elsewhere about what was going on.

Another possibility is that the statement that the shooter was 52 years old was misdirection, intended to permit the FBI to investigate others potentially connected with the shooter without acknowledging publicly that the FBI knew who the shooter was. If so, the possible short-term gain must be set against the potential long-term damage to the public trust, which is already fairly weak when it comes to government pronouncements on events like this.

In any event, the public's trust is now being further tested by the government insistence that there's no indication the shooting was an act of terrorism. If what is meant is that there is no indication yet that Hadayet was working in concert with others, that may well be true. At another level, though, it is difficult to credit any argument that this premeditated shooting (and it must have been premeditated, given the number of weapons and amount of ammunition carried), by an Arab Muslim at the counter of the Israeli national airlines on America's Independence Day, in the context of everything that has happened since September 11, was not meant to elicit terror.

Thursday, July 4

Independence Day

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

-The Declaration of Independence

Everyone has his or her own Fourth of July ritual, whether it be fireworks or barbecue or flying the flag. In my household, the Fourth includes a viewing of 1776, the 1972 movie musical about the drafting and signing of the Declaration of Independence. It's wonderfully acted, with the acerbic William Daniels as John Adams at its core, and the final scene of the signing always gives me chills. And it features one of the funniest moments in movie musical history, as Adams tries to persuade Thomas Jefferson to try his hand at writing the Declaration. Jefferson demurs, claiming that his longing for his absent wife has driven him to sexual distraction:

Jefferson: But I burn, Mr. A.
Adams: So do I, Mr. J.
Others:: You? You do? John! Who'd have thought of it.
Adams: Mr. Jefferson, dear Mr. Jefferson
I'm only forty-one, I still have my virility,
And I can romp through Cupid's grove with great agility,
But life is more than sexual combustibility!

Great stuff.

We are truly lucky to live in this place at this time. Yes, the United States has its flaws, as do all human institutions and endeavors. Yes, we fail in important ways to live up to the ideals of the founders (ideals that the founding generation itself failed to meet). Still, the vision of the founders represented a dramatic break with the past, and that vision continues to sustain us and to drive our national prosperity more than two centuries later. And that's worth celebrating.

Happy Fourth, everyone.

Wednesday, July 3

Middle East Update

It was an interesting day in the West Bank and Gaza, with reports of a power struggle within the PA, a clash between a Hamas mob and PA security forces, and a rally in support of Arafat that raised serious questions about the ability of a viable Palestinian opposition to emerge in time for the elections Arafat has scheduled for early next year. Ha'aretz reports:

At the Gaza rally, one activist from the Al-Aqsa Martyrs Brigades, an armed group linked to Fatah, pledged over a loudspeaker that any Palestinian openly challenging Arafat's leadership would be a dead man.

"Any collaborator who would represent himself an alternative to [Arafat] will be executed in the public square," said the message, which echoed through the streets as armed men fired in the air.

One of the many questions never answered during the Oslo process was the internal Palestinian question of what a Palestinian state and Palestinian civil society would look like. Now, in the wake of the spring's wave of suicide bombings, the subsequent Israeli military actions in the West Bank, and President Bush's call last week for new Palestinian leaders, the issue seems to be coming to a head. Its resolution is likely to be bloody.

The President and Corporate Ethics

As accounting scandals continue to rock the business world, the president is preparing a major speech calling for increased corporate accountability and corporate responsibility. His ability to lead credibly on this issue, however, has been called into question by columnist/economist Paul Krugman in a New York Times column (free registration required) and by a follow-up article in today's Times. These pieces report that in 1989, while serving as a director of Harken Energy, Bush sold a large amount of Harken stock at a time when the company was reporting falsely-inflated earnings, and just a few weeks before Harken revealed the truth about its situation, causing Harken's stock to plummet in value. Bush reaped roughly $848,000 from the sale. Bush compounded the problem by failing to report his sale for 34 weeks, in violation of SEC insider-trading regulations.

I'd been planning to write about this, but Charles Murtaugh beat me to it:

So here's the beauty part for the Democrats: it doesn't matter whether or not Bush broke the law in his insider trading. The scandal here is moral, rather than legal: Bush was intimately connected with a corporate accounting scandal precisely akin to those now in the headlines, and costing tens of thousands of jobs. If the Democrats focus solely on the legalistic question of how Bush made his eight hundred large, they'll be making a Starr-esque error. It really didn't matter whether or not Clinton lied to the grand jury about his affair, the real Lewinsky scandal was that he'd been having the affair at all. The conservatives were right: character matters.

In Harken-gate, it makes little difference whether Bush broke the law by waiting thirty weeks to alert the SEC of his stock sale, instead of the required two or three (yawn... eyes... glazing... over... must... follow... the money...). What will be harder for Bush to shake off between now and 2004, particularly if the corporate accounting scandals continue to drag down the economy, is his guilt-by-close-association with a book-cooking energy company.

The Harken story first broke during the 2000 campaign, but—like so many other critical looks at Bush's history—it failed to connect with the electorate. It will be interesting to see whether, with the public's interest primed by the shenanigans at WorldCom and elsewhere in the corporate world, the story sticks this time.
Media "Censorship"

Matthew Yglesias, continuing his bid to fill the shoes of Glenn Reynolds during the latter's vacation, blasts the Nation for its criticism of the New York Times's decision to remove links to cartoonist Ted Rall. The Times acted following Rall's controversial cartoon that mocked those whom Rall called the "terror widows." The Nation labeled this move "censorship." Matthew's apt response:

Let's try this once again folks. When the government tells you what you're allowed to read or write, that's called "censorship," when the editors of a newspaper make decisions about what material they're going to print, that's called "editing."

Nicely put.

Trifecta Update

George Bush has taken a fair bit of heat recently (including a bit from me) for his claim that he said during the 2000 campaign that he would only run a deficit in the event of a recession, war, or a national emergency. Now, however, an enterprising reporter at the Washington Post has found a statement from 1998 that says exactly what Bush claims he said:

Barring an economic reversal, a national emergency, or a foreign crisis, we should balance the budget this year, next year, and every year.

So Bush's claim has been vindicated, and he is owed an apology, right? Not quite. The source of the 1998 statement: Al Gore.

(Link via Alex Frantz and Kevin Raybould).

Jefferson on Religion

As we approach the Fourth, and with talk of last week's Pledge of Allegiance and voucher decisions still filling the air, Jason Rylander today posts the text of the Virginia Statute for Religious Freedom, authored by Thomas Jefferson. It is a remarkable document, infused with a religious spirit yet generous in its respect for disparate religious views, and it's worth contemplating as we celebrate our nation's birthday.

Tuesday, July 2

How Truly Appealing

Much of my scholarly work relates to the workings and decisionmaking processes of the federal courts of appeals. Generally speaking, a party that loses in federal district court (the trial-level court) has the right to appeal to the federal court of appeals, and the appellate court has to resolve the appeal. The Supreme Court, on the other hand, gets to pick and choose the cases it wants to hear and the issues it wants to resolve. As a result, the federal appellate courts, rather than the Supreme Court, are where most of the real legal action is: the federal courts of appeals decided 28,840 appeals on the merits during the twelve months ending September 30, 2001, while during the same period the Supreme Court issued full or per curiam decisions in 87 cases (these statistics, and many more, may be found in a series of tables in the library section of the U.S. Courts website). To be sure, many of the cases that the courts of appeals decide are routine and uninteresting, but the vast majority of legal development at the federal level, including development of the most important issues of the day, occurs at the appellate level. Yet most non-lawyers have little sense of what the appellate courts are, what they do, and how they work.

I was surprised and pleased, then, to discover Howard Bashman's blog of appellate litigation, How Appealing. I've mentioned and linked to his site before, but it bears repeating: Howard's site is a tremendous resource for lawyers and non-lawyers alike about the most significant developments in the courts of appeals.

Howard's coverage of the Ninth Circuit's Pledge of Allegiance decision has been superb: in the past two days, Howard has explained, thoroughly and in clear, accessible language, how the case came to be assigned to the three judges who decided it and how the Ninth Circuit will (probably) go about rehearing the case en banc, taking into account the ways in which the practices of the Ninth Circuit (the largest circuit both geographically and in terms of the number of judges) differ from those of other circuits. This is enormously valuable information for the non-lawyer who wants to understand the case, and information that the mainstream media fail to provide. And the details that he provides will be of interest to lawyers as well.

Howard's coverage is remarkably comprehensive without being overwhelming. Today, for example, he noted a hearing in the House Judiciary Committee (actually the Subcommittee on Courts, the Internet, and Intellectual Property) on the appellate courts' use of unpublished and non-precedential opinions. This is a subject of deep interest to me, one about which I've written several articles, and I learned about the hearing on Howard's site. And while I don't always agree with Howard's case analysis, his arguments are always well-reasoned and well-presented. I don't exaggerate when I say that How Appealing is a tremendous resource. It is an astonishing piece of work.

You'd Think That People Would Have Had Enough of Silly Lawsuits

Lest anyone think the United States has a monopoly on ridiculous litigation: Alex Frantz took note yesterday of a story in the Independent about perhaps the silliest intellectual property case in recent memory, and NPR supplied further details on All Things Considered this evening (the audio isn't up yet on the website; it was the final story of the second hour). It seems that when English producer Mike Batt was putting together an album for the Planets (a group of classical musicians), he wanted to separate the album's bonus material from the main body of work. He therefore included a minute of silence. And then, feeling a bit cheeky, he gave the track a title, "One Minute's Silence," and credited it to "Batt/Cage." The Cage in question, Batt explained on All Things Considered, was Cliff Cage, a figment of his imagination. The estate of composer John Cage was not amused, however; they claim that "One Minute's Silence" represents an infringment of Cage's work 4'33", which consists of, well, four minutes and 33 seconds of silence. Batt, not surprisingly, wonders exactly which portion of the Cage work he is supposed to have lifted.

All this inspires my artistic muse. I shall create a piece of artwork, drawing on the depths of my creative talent. It shall consist of a single sheet of brilliant white paper, 8 1/2 by 11 inches in size. The piece will represent a brilliant commentary upon the infinite, the boundaries that limit humanity's expression, the blandness of modern culture, and so on. I will copyright the work. And I will then sue the Mead Paper Company for infringement. Yes. It sounds like a winner.

Two more for the blogroll: Avedon Carol and economist Brad DeLong.
Oooooooooh, My Head

Yet another consequence of getting older: I can't handle large quantities of cabernet like I used to.

Monday, July 1

Happy Birthday To Me

Thirty-eight. At that age:

* Mozart was dead. But he'd written some of the most amazing music in humanity's history during his short life.
* Martin Luther King had won the Nobel Peace Prize for his leadership in the civil rights movement.
* John F. Kennedy was a member of the United States Senate.
* Bill Clinton had already served multiple terms as governor of Arkansas.
* Willie Mays was closing in on 600 home runs.
* Pelé had led Brazil to three World Cup championships and, as a member of the Cosmos, had ignited the popularity of soccer in the United States.

So should I accept that it's now clear that I'll never amount to much? Or should I take comfort in the fact that, when he was 38, George W. Bush was still a drunk?

I hate that my increasingly creaky knees keep me from running, the only form of exercise I've enjoyed in the last ten years. I hate that my forehead and my waistline are the only parts of me that are still growning (okay, my nose and my ears are still growing, too, but that doesn't give me much comfort either). I hate that I can no longer eat whatever I want, whenever I want, and can no longer stay up until all hours with no real consequences the next day.

On the other hand, I like being a father. I like the fact that I'm no longer mistaken for a student around campus. I like that I have a sense of who I am and where I belong. And that's not too bad.

More Pledging

Jason Rylander, just back from a week's vacation, exposes the absurdity of the 1954 act of Congress that added the words "under God" to the Pledge of Allegiance. Welcome back, Jason; you were missed.

AP: Gore Vows More Spontaneous Campaign

Al Gore vowed over the weekend that his 2004 campaign will be more spontaneous than his ill-fated 2000 run: "My advisors and I, after careful deliberation, have formulated a fifteen-point plan for running a more spontaneous, authentic campaign, and I look forward to the opportunity to implement this plan on a systematic basis."

Please. Look, I voted for Al Gore. I wanted him to win, and I still fall into a rage when I think of the Supreme Court's unprincipled per curiam opinion handing the election to Bush (if it were a principled decision, the Court wouldn't have declared it effectively non-precedential). But I absolutely dread the thought of another Gore campaign. No matter how Gore presents himself in 2004, he made so many artificial changes of clothes and personality in 2000 that anything he does now is bound to seem calculated and inauthentic. What's more, while it wasn't uncommon in the 19th century for a losing candidate to come back four years later and avenge his initial defeat (see Thomas Jefferson vs. John Adams in 1800, Andrew Jackson vs. John Quincy Adams in 1828, William Henry Harrison vs. Martin Van Buren in 1840, and Grover Cleveland vs. Benjamin Harrison in 1892), in each of the two rematch elections since 1892 (McKinley vs. Bryan in 1900; Eisenhower vs. Stevenson in 1956) the candidate that lost the initial matchup fared worse the second time around. Yes, I know Gore "won" the 2000 election, at least as measured by the popular vote. But given his general ineptitude as a candidate and Bush's apparent personal likability (which I personally can't fathom but which, given the polls, is hard to deny), it's very hard to imagine that Gore would emerge triumphant from a rematch. Gore's ship has sailed and sunk; it's time for the Democrats to find a new vessel.

Armed Liberal notes Israel's imminent removal of twenty small settlements in the West Bank and suggests that it would have been nice if Israel had explained the decision by stating that these settlements were illegal, rather than simply saying that they were too hard to defend. It turns out that most of these outpost settlements were abandoned or all-but-abandoned anyway, so it’s hard to read much significance into their removal.

Given the continuing suicide bombings, this isn’t an appropriate time for large-scale removal of settlements, as any such action would likely be seen as proof that terrorism works. And the settlements present a practical political problem for Sharon, whose governing coalition depends in part on those who support the settlements. At some point, though, it’s going to have to be made clear—both as a carrot to the Palestinians and as a message of reality to the Israeli far right—that the majority of the settlements ultimately will have to be dismantled.

Filling the Void

With center-of-the-blogosphere Glenn Reynolds on vacation this week, it's the duty of every blogger to write as many brief posts as possible, lest the entire system collapse from the void at its core.

Matthew Yglesias promises to do his part. Of course, if he really wants to fill in for Glenn, he'll have to ensure that at least fifty percent of his posts include cheap shots at anyone to the left of Bill Safire. But I doubt he's willing to go that far.

Update: My goodness, he's gone and done it!

Canada Day

Happy Canada Day to our northern neighbors.

Damian Penny, a Newfoundlander, comments on the mixed feelings that those in his home province have toward this day.


Eric McErlain (who has been remarkably prolific this morning) celebrates Mark Messier's return for one more season with the Rangers at the age of 41. As far as I'm concerned, after bringing home the 1994 Stanley Cup, Mess can stay as long as he wants.

Sunday, June 30

Wine of the Week

Voss Vineyards Alexander Valley Zinfandel 1992
Voss has an Australian owner who also produces wine in his native country, and it shows. Normally one wouldn’t think of Australian winemakers of the early 1990s as showing a restraining hand, even in comparison to their American counterparts, but that seems to be the case here. Zinfandels from 1992 commonly suffered from overripeness and excessive alcohol levels; it was a hot, fierce vintage, and many of the wines aged awkwardly, never pulling themselves into balance. Whether because of the experience of making wines in the hot Barossa Valley or for some other reason, though, Voss seems to have avoided the vintage's major flaws: the alcohol is a comparatively mild 14 percent, and while the fruit is fully ripe, it lacks the hot notes so common in the vintage. There’s lots of black pepper, and as a result the wine does quite nicely with spicy foods—it held up well to dirty rice, which overwhelms most wines. Not quite shiraz, but more shiraz-like than most zinfandels, this has to be considered a success for the vintage.

The Bear Truth, Relaunched

N.Z. Bear has a snappy new design to complement his blog's excellent content. I helped a bit with the beta test of the new design, so I have a sense of how much thought and hard work went into the new design, and I must say it's paid off (Mac users should stick to Internet Explorer 5.x, Netscape 6.x, or Mozilla—OmniWeb and iCab have problems with the site's cascading style sheet). The new look comes with a new address: Check it out.

World Cup Today

It wasn't a brilliant final, but it was entertaining, as Brazil won its fifth World Cup with a 2-0 victory over Germany. The Germans dominated much of the first half. I'd expected them to try to use their superior size and strength to knock the Brazilians off their game, and they did. But it went beyond that: it was Germany, not Brazil, that put together combination passes; Germany that showed individual artistry; Germany that played the more aesthetically pleasing soccer. On those occasions when Brazil did challenge, Kahn was able to turn it back. Kahn's strength has not been his ability to make the spectacular save, although he has certainly had his share; rather, it's been his superior sense of position and space—he's always been in the right place at the right time. And so it was here, as Kahn's positioning forced Ronaldo to rush or misdirect several shots.

And then, in the second, half, Kahn, flawless for so much of the tournament, made a terrible mistake, allowing a rebound off a medium-strength Rivaldo shot, and that was that: Ronaldo pounced and scored easily, and Brazil was up. Ronaldo added a clinching goal twelve minutes later, taking a long, rolling cross from Kleberson (which Rivaldo deftly stepped over) and directing the ball past a helpless Kahn.

This may not be the best Brazilian team ever, but they proved themselves worthy champions in this topsy-turvy tournament.