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February 28, 2005

He Lives!

The elusive Mark Steyn appeared on C-SPAN's 'Washington Journal' program over the weekend. If you have Real Player, open this link to watch (it's long).

Two thoughts:

1) Okay, okay, he really exists. Fine.

2) He exists, apparently, with a British accent. Who knew?

Anyway, watch the interview if you have time; it's very Steyn-esque. And if you haven't had your Steyn fix, read his latest from the Telegraph, wherein he cites both Charles Johnson and Glenn Reynolds. Nifty.

Posted by David Mader at 07:17 PM | Back to Main

You Say You Want a Revolution?

Count me in:

Opposition groups have tapped into the public outrage at Hariri's murder to launch a peaceful campaign to undermine Syria's grip on Lebanon and force it to withdraw its estimated 14,000 troops. Demonstrators are taking their cue from other recent demonstrations in other parts of the world, such as the rallies in Ukraine last November that arose from a rigged election for prime minister. The "Orange Revolution" there resulted in a new election and the eventual victory of a Western-leaning candidate.

Just as Ukrainian students formed a tent city in Kiev and adopted the orange of the opposition's campaign, on a grassy knoll surrounding the Martyrs' Monument, 100 yards from Hariri's grave, some 150 young Lebanese have erected tents and vowed to remain until Syria withdraws its troops. Protesters are wearing thousands of red and white scarves, the colors of Lebanon's flag, which have become the motif of their campaign.

Are we seeing another '48? Will the promise of this democratic moment devolve into bloodshed?

What a time to be alive.

Posted by David Mader at 02:04 PM | Back to Main

Lebanese Government Resigns

Well, this makes things interesting: FoxNews reports that the entire pro-Syrian Lebanese government has resigned amid opposition protests.

Posted by David Mader at 11:17 AM | Back to Main

Anti-Syria Protests Fill Lebanon Streets

Thousands of people have taken to the streets of Beirut in defiance of a government ban, voicing their support for the Lebanese opposition and demanding the removal of the pro-Syrian puppet government. The Associated Press puts the number of protesters at 10,000; ChannelNewsAsia at between 20,000 and 50,000, and one blog report at 200,000.

The Beirut protests follow a weekend of protests by Lebanese expatriots around the world, and two weeks after the assassination of former Prime Minster and opposition leader Rafik Hariri. There has been widespread speculation within Lebanon, and elsewhere, that Hariri's murder was orchestrated by Syria.

With that in mind, consider these stories:

- Israel Says It Has Evidence of Syrian Involvement in Tel Aviv Nightclub Bombing: 'Israel says it has evidence Syria was involved in the bombing at a Tel Aviv nightclub on Friday that killed five Israelis and wounded dozens more. It intends to present the evidence to representatives of the international community.

Foreign Minister Silvan Shalom is to present the evidence to ambassadors of the European Union and all countries now serving on the U.N. Security Council. Israeli officials say, however, that the evidence will not be made public.'

- Syria 'gave up' brother of Saddam: 'Syria handed over a highly wanted half-brother of Saddam Hussein who is suspected of funding and planning the post-war insurgency, Iraqi sources say...

Iraq did not comment on Syria's role but the Iraqi sources said Damascus had acted under international pressure.'

These three stories - the murder of Hariri, the bombing in Tel Aviv and the handover of Saddam's brother - are all connected by their common term - Syria. What, then, is the actual nature of the connection? There are, it seems to me, two possibilities:

1) Syria, or some element thereof (I'm thinking of the security services), was behind the Hariri murder, and was involved in some manner in the Tel Aviv bombing. It is pursuing this course of confrontation for reasons that are not immediately obvious; but it hopes to continue this course by timely 'concessions' to the US, viz. the handing over of Saddam's brother.

This seems to be the snap conventional wisdom. But I remain troubled by that big question mark in the middle of the theory: why, precisely, is Syria pursuing this course of confrontation? The question presented itself after the Hariri murder. That act might have been justified on simple political grounds: Haririr led the opposition to Syria's puppet Lebanese government. But certainly the means demanded international attention. Was it simply a miscalculation?

But even if it was - even if Hariri's murder was a minor political 'event' that turned out to be a spark in a powder-house, why fan the flames by either engaging in or acquiescing in a terrorist attack in Tel Aviv? Again, maybe there is a simple explanation: perhaps the Syrians, having excited Lebanese opposition to their occupation, hoped to redirect attention to the 'common enemy' - the Jews. Upon consideration, this doesn't seem altogether unlikely. But it does seem uncommonly stupid.

And then we get the 'climb-down' - the handover of Saddam's brother, ostensibly as a peace-token, a manifestation of an intent to change course. Let's muddy the waters a little bit:

- Syrian Kurds captured Saddam's brother: 'Syrian Kurds seized Saddam Hussein's half-brother in northeast Syria and handed him to Iraqi Kurds before he was taken into custody by Iraq's security forces, government sources in Baghdad say...

It is unlikely that Syrian Kurds, who are closely watched by the Syrian authorities, would dare get involved in any such operation without at least a green light from Damascus.'

Maybe that doesn't change anything; maybe it changes the whole game. We can fit the Kurds into the CW like this: having seen the Hariri murder spiral into an international incident, and having failed to diver attention with the Tel Aviv bombing, the Syrians make a desparate attempt to quiet matters by turning a blind eye to Kurdish activities in eastern Syria. (If the Syrians did indeed 'green-light' a Kurdish operation, it suggests that the Kurds have known precisely where the Iraqis were for some time.)

Sound a little far fetched? A little Tom Clancy-esque? Yea, I agree. Do I have another theory? Why, glad you asked!

2) The actions of the past two weeks don't seem like the actions of a single government, let alone a tyranny. I don't mean Syria wasn't involved; I mean Syria-as-Syria wasn't involved. I think we're seeing Syria fall apart. We're seeing at least two factions in operation, and I don't know enough about Syria to identify them; I'd think that the security services are one, the military a second, and the 'terrorist community' - your Islamic Jihads and Hizbullas and various other local offices - a third. I'd guess that the security services, with the approval of the Assad regime, were behind Hariri; that the terrorist gang were behind the Tel Aviv bombing, without the approval of the Assad regime; and that the military faction was behind the capture of Saddam's brother, with the approval of the Assad regime but without the approval of the security services.

That's my completely unprofessional and speculative theory, anyway. Time will tell; but I think the Assad regime's day's are numbered, and I think the aftermath will be messy.

Posted by David Mader at 09:40 AM | Back to Main

February 25, 2005

Palestinians Form a New Cabinet

Speaking of the democratic moment, Palestinian President Mahmoud Abbas has formed a new cabinet, drawn from a younger and more professional crowd. It will be interesting to see how much this is a PR move to present a more attractive face to the world, and how much it is a legitimate attempt at reform of Palestinian governance.

Posted by David Mader at 01:29 PM | Back to Main

The End for Sinn Fein?

Interesting developments in Ireland and Northern Ireland. Following a bank robbery, a murder and public accusations that Gerry Adams and Marty McGuiness sit on the IRA's Army Council, British and Irish patience with Sinn Fein appears finally to be running out. A new survey shows the popularity of both Adams and Sinn Fein as having plummeted in Ireland in the past months. Sixty-two percent of respondents also believed that Sinn Fein and the IRA are the same organization - which suggests widespread belief in the allegation about Adams and McGuinness.

It's nice to see these terrorist thugs isolated at long last. Here's hoping that the democratic moment in Eastern Europe and the Arab world will extend to Northern Ireland as well, and that nationalists and loyalists both will finally reject terrorism and renounce the terrorist leaders like Adams and McGuinness, and will chose a more peaceful democratic path.

Posted by David Mader at 01:21 PM | Back to Main

The Churches Begin to Split


Leaders of the global Anglican Communion declared Thursday that they want the U.S. Episcopal Church and the Anglican Church of Canada to withdraw from the communion's councils temporarily, and to explain their attitudes toward gays which have split the church.

The statement was issued by primates a day earlier than planned, following their meetings this week at a Roman Catholic retreat in Northern Ireland.

I'd just been talking about this with my father. It isn't, in fact, the 'beginning;' but it certainly isn't the end, and I think we'll see more and more formal - and less temporary - splits within the various churches, communions and other organized religious bodies in the coming years.

Posted by David Mader at 10:41 AM | Back to Main

February 23, 2005


Adam Daifallah has an article in today's National Post (behind a firewall) recommending a Conservative approach to Quebec. The commenters at Daifallah's blog are giving him a hard time over the specifics, but I think Daifallah's larger - and more important - point is simply that the Conservative Party needs to get serious about Quebec, and needs to develop a policy - any policy - that actually speaks to Quebec voters. Anti-Quebec western banter will not only fail to win the party any Quebec support, but will also prove to be a liability among Ontario voters who (for reasons that are increasingly beyond me) continue strongly to want to placate Quebec for the good of their notion of Confederation. In other words, without a solid Quebec policy, the Conservatives aren't going to make gains in Ontario. I'm with Daifallah.

Posted by David Mader at 12:32 PM | Back to Main

It's Natural.

Meant to blog this yesterday:

When Austin High School administrators removed candy from campus vending machines last year, the move was hailed as a step toward fighting obesity...

The candy removal plan, according to students at Austin High, was thwarted by classmates who created an underground candy market, turning the hallways of the high school into Willy-Wonka-meets-Casablanca.

Soon after candy was removed from vending machines, enterprising students armed with gym bags full of M&M's, Skittles, Snickers and Twix became roving vendors, serving classmates in need of an in-school sugar fix. Regular-size candy bars like the ones sold in vending machines routinely sold in the halls for $1.50.

"There was no sugar in the vending machines, so (student vendors) could make a lot of money," said Hayden Starkey, an Austin High junior who said he was not one of the candy sellers. "I heard kids were making $200 a week just selling candy."

Here's the punch-line:
In response, the school has restored some candy to the vending machines by declaring it nutritious: "According to the state, milk chocolate, for example, meets minimal nutritional standards because it does have milk in it. Candy with peanuts contains protein. The vending machines still don't carry Starburst, Skittles and other so-called pure sugar products."
At least they didn't respond by punishing the kids.

Critics of free-market economics often approach it as a scheme for ordering the economy. This makes sense, since critics of the free market are most often proponents of some degree of economic command or centralizations - that is, they are often themselves advocates of an organizational approach to the economy. But the true proponent of the free market will believe, I think, that free market economics does not organize but rather describes the operation of the economy. In fact, I happen to believe that free-market economic principles describe most all aspects of human behavior and interaction. It provides a common language to explain the various 'inputs' - considerations - that result in certain 'outputs' - behavior.

The reason it's so successful as a descriptive language is that it aligns with natural or organic human behavior. Unless Austin is, despite my immediate observations, a bastion of free-market thought that is reflected in elementary school curricula, these kids weren't guided by textbook economics. They were guided by their own natural and reasonable expectations of how their fellows would behave in reaction to the deprivation of candy. Neither nefarious economics professors nor evil corporations told these kids to sell candy for a profit; they just figured out that the elimination of supply left a significant demand that presented an opportunity for satisfaction (or 'exploitation,' if you're not squeamish).

It's a beautiful thing.

Posted by David Mader at 11:37 AM | Back to Main

Social Security

It's not really my bag, to be honest, but David Frum chimes in to the current debate to note that "it does not do the US government much good to own a big bunch of its own bonds." His point is eminently sensible - perhaps I should say, rational - and is worth a look.

That's not to say that I'm sold on the Bush plan, mind; only that I disagree with those who say there's no problem to be fixed.

Posted by David Mader at 10:57 AM | Back to Main

February 19, 2005

Welcome News from Montreal

Adam Daifallah has a first-hand account of the recent 'Canada in the World' conference hosted by McGill's Institute for the Study of Canada. Here's Daifallah:

[There is a] deep division within that same [foreign-policy] establishment on where Canada should be going with its foreign and trade policy. Everyone agreed that the status quo is not an option, but there are two distinct camps on how to proceed. One believes the future is in more north-south integration with the Americans, including freer trade, common border patrol and harmonized regulatorary regimes. The other group is advocating less "reliance" (I hate that term) on the Americans and a closer alliance with the EU and European states, including more bilateral trade agreements.
First, I'm very happy to see that a public dialogue is finally taking place regarding this most important of policy areas. Many, many cheers to McGill and the ISC for putting it on, and to the participants for speaking out.

Second, with regard to this split, you can guess from my zipcode which approach I favor. But the two need not be entirely irreconcilable. There's no real reason, I think, why closer intergration with the American market should preclude an increasing number of bilateral relationships across the globe. In fact, seeing as the current American administration appears more consistently committed to free trade this time around, greater access to US markets could be a major attraction to foreign investors. In other words, a 'Euro-centric' Canada is probably a less attractive venue for investment than a US-oriented Canada.

Just a thought. Oh, and I'm very, very happy to hear this: 'there is near-unanimity in the foreign policy establishment that the decision of the Martin government to split International Trade from Foreign Affairs is totally dumb.' There are not sufficient words in the English language to describe the stupidity of this idea. Hopefully the decision of so many to speak truth to, uh, 'power' will cause the Martin government to back down.

Posted by David Mader at 07:14 PM | Back to Main

'That's Part of My Shtick'

There isn't much of interest in the 'Bush tapes,' but that one line is marvelous:

When Mr. Wead warned that he had heard reporters talking about Mr. Bush's "immature" past, Mr. Bush said, "That's part of my shtick, which is, look, we have all made mistakes."
He had it down two years before he ran for president, and his opponents still haven't figured it out. Remarkable.

Posted by David Mader at 07:08 PM | Back to Main

February 18, 2005

Term-Limiting the Court

As news comes that Chief Justice Rehnquist will not sit with the court when it meets next week, Randy Barnett publishes a proposal that's been going around to effectively impose term limits on Supreme Court Justices by making them redundant through the appointment of an additional justice every Congress.

I'm not sure what I think about the proposal, though it has the endorsement of a number of prominent constitutional scholars (including the left and right extremes of the Texas ConLaw faculty, Sanford Levinson and Lino Graglia). I wonder if Rehnquist wouldn't undermine this movement, however, simply by resigning. I have tremendous respect for him, but the announcement that he won't be participating in oral arguments but will be voting on cases is unacceptable. Either he's fit to be a justice or he isn't. And he isn't. It's time for him to go.

Posted by David Mader at 03:59 PM | Back to Main

But of Course!

Though I'd never thought about it, the fact that Peggy Noonan reads James Lileks makes perfect sense, and contributes to my notion of order and balance in the world.

Posted by David Mader at 10:43 AM | Back to Main

February 17, 2005

Speaking of Communists Matt...

Kidding, buddy, kidding.

Matt challenges my qualified favorable comments about Senator McCarthy, asking:

So at a time when communism was one of the dominant ideologies in the world there were in fact people who believed in, or appeared to believe in, said ideology living within the United States? Okay, I'm shoked. And this is an argument for... what exactly?
Well, I think it's an argument for not claiming some mass political repression when members of Congress initiate public hearings into the influence of an ideology and political movement that actively sought the overthrow of the liberal democratic order in the United States.

No, McCarthy wasn't right about everything, and I've no doubt that a number of individuals were quite negatively impacted, to use a vague and inexpressive euphamism, by accusations of communist sympathy. But the attitude that being a communist shouldn't have mattered reflects, I think, the double-standard that's been applied to this murderous ideology in the west. Remember, HUAC and McCarthy's senate committee weren't looking into whether individual Americans privately believed that the state should redistribute wealth and nationalize industry. They were looking into whether certain Americans were organizing, in tandem with an international political organization and movement, with the purpose of actively undermining the liberal democratic order, with, in turn, the end of bringing about either the defeat of that order in an open conflict or the overthrow of that order in a revolution.

And my point in my original post was simply this: there were such people. As Steyn argues - persuasively, I'd say, based on my own experience - Miller's comparison to the witch trials was premised on the notion that a hysteria was orchestrated by authorities notwithstanding the fact that the threat was entirely imaginary. The inference must be that the communist threat was also entirely imaginary. But it wasn't.

That's all I'm saying - no more, no less. As for why communism mattered - well, I think that goes to the distinction I draw above, between communism as a political ideology and communism as an active program of revolution or treason. That sounds shocking, but I tell you what: Ronald Reagan came to the same conclusion in the 1940s, due to his encounters with organized communists in Hollywood while president of the Screen Actor's Guild. And a whole pile of American liberals came to the same conclusion in the 1950s and 1960s - those liberals who would come to be disparaged as 'neoconservatives.' As long as we continue to tell ourselves that Soviet Imperial Communism was in fact benign, and that the tensions of the Cold War were the fault of American aggression, suggestions of an actual communist threat will seem outlandish. I just don't think that's correct.

Posted by David Mader at 08:09 PM | Back to Main

Problems at the Lester B.

Paul Wells notes the discontentment at Canada's Department of Foreign Affairs. Having grown up with two parents at External Affairs/DFAIT/FAC-ITC, I have a particluar interest in the department. Wells credits the Parliamentary opposition for drawing attention to the crisis in the foreign ministry. I just wish more people would point out that separating Canadian foreign policy from Canadian trade policy through a division of the departments is, from a Canadian perspective, ludicrous.

UPDATE (20:06 CST): When I say 'more people,' I obviously mean more people like Matt:

[S]eparating Foreign Affairs from International Trade was a stupid idea to begin with. It is stupid because, first, issues of trade are central to conducting foreign affairs and, second, because this kind of beuracratic tinkering rarely, if ever, accomplishes substantive change.
Hear, hear.

Posted by David Mader at 07:56 PM | Back to Main

God Bless Cockney Barrow Boy Spivs

This story, which has gone around the blogosphere today, is easily the feel-good story of the year to date. (Well, ok, the Iraqi Election is. But this made me smile almost as much). What I can't get over, though, is the amazing chutzpah of the Greenpeace shmucks:

WHEN 35 Greenpeace protesters stormed the International Petroleum Exchange (IPE) yesterday they had planned the operation in great detail. What they were not prepared for was the post-prandial aggression of oil traders who kicked and punched them back on to the pavement [that's British for 'sidewalk' - ed.].

“We bit off more than we could chew. They were just Cockney barrow boy spivs [that's British, but I'll be darned if I know what it means - ed.]. Total thugs,” one protester said, rubbing his bruised skull. “I’ve never seen anyone less amenable to listening to our point of view.”
The emphasis is mine, and here's why:
When a trader left the building shortly before 2pm, using a security swipe card, a protester dropped some coins on the floor and, as he bent down to pick them up, put his boot in the door to keep it open.

Two minutes later, three Greenpeace vans pulled up and another 30 protesters leapt out and were let in by the others.

They made their way to the trading floor, blowing whistles and sounding fog horns, encountering little resistance from security guards. Rape alarms were tied to helium balloons to float to the ceiling and create noise out of reach. The IPE conducts “open outcry” trading where deals are shouted across the pit. By making so much noise, the protesters hoped to paralyse trading.

In Texas we call that 'Criminal Trespass' - see the Texas Penal Code §30.05. And yet this guy complains that the traders weren't 'amenable to listening to [his] point of view'?! Stupid git.

Don't worry, though - as I said, the story has a happy ending:
But they were set upon by traders, most of whom were under the age of 25. “They were kicking and punching men and women indiscriminately,” a photographer said. “It was really ugly, but Greenpeace did not fight back.”

Mr Beresford said: “They followed the guys into the lobby and kept kicking and punching them there. They literally kicked them on to the pavement.”

Last night Greenpeace said two protesters were in hospital, one with a suspected broken jaw, the other with concussion.

My heart bleeds. The rest of me will raise a glass tonight for the traders of the International Petroleum Exchange.

UPDATE (19:42 CST): I've been trying to figure out whether there might be criminal charges other than criminal trespass which might apply to this scenario. (Yes, they broke my brain, and this is how I think now. Plus, cmon, tell me you wouldn't be trying to figure out how many ways you could throw these [censored]s in jail.) The interesting thing is that while the protesters had the stated intent to disrupt trading, which would necessarily cost traders and their clients a certain value, they would have (and may have) achieved this end without doing any physical damage to any tangible property.

To the degree that a disruption of trade has a depreciative effect on stocks and other instruments, there may be a charge of reckless damage or destruction ("A person commits an offense if, without the effective consent of the owner, he recklessly damages or destroys property of the owner"), §28.04.

Criminal mischief wouldn't apply because no tangible property was damaged (although certain courts have held clean-up costs to be among the range of 'damage to property,' so the removal of balloons might create the necessary injury).

Theft doesn't apply, because there was no actual or purported transfer of title, and it wouldn't be attempted theft because there was no intent to so transfer property.

I haven't studied the laws of disorderly conduct, but a riot charge seems appropriate, as does disruption of meeting, a class B misdemeanor (fine not to exceed $2,000; jailtime not to exceed 180 days; or both).

It intruiges me, though, that interference with a financial transaction or marketplace doesn't fall under an explicit property crime category, even though such a disruption almost certainly has a negative impact on the value of the transactions occurring at the time of the disruption. Is the problem that such a value is impossible to measure?

If anyone has ideas, I'd love to hear 'em.

Posted by David Mader at 07:28 PM | Back to Main


Lizzy brings to my attention the transcript of Harvard President Larry Summers' remarks on the disparity between the sexes in the fields of higher maths and sciences. This is the speech that touched off so much controversy; read it yourself and see whether you think Summers ought not to have spoken words like these:

It does appear that on many, many different human attributes-height, weight, propensity for criminality, overall IQ, mathematical ability, scientific ability-there is relatively clear evidence that whatever the difference in means-which can be debated-there is a difference in the standard deviation, and variability of a male and a female population. And that is true with respect to attributes that are and are not plausibly, culturally determined...

I looked at the Xie and Shauman paper-looked at the book, rather-looked at the evidence on the sex ratios in the top 5% of twelfth graders. If you look at those-they're all over the map, depends on which test, whether it's math, or science, and so forth-but 50% women, one woman for every two men, would be a high-end estimate from their estimates. From that, you can back out a difference in the implied standard deviations that works out to be about 20%. And from that, you can work out the difference out several standard deviations. If you do that calculation-and I have no reason to think that it couldn't be refined in a hundred ways-you get five to one, at the high end. Now, it's pointed out by one of the papers at this conference that these tests are not a very good measure and are not highly predictive with respect to people's ability to do that. And that's absolutely right. But I don't think that resolves the issue at all. Because if my reading of the data is right-it's something people can argue about-that there are some systematic differences in variability in different populations, then whatever the set of attributes are that are precisely defined to correlate with being an aeronautical engineer at MIT or being a chemist at Berkeley, those are probably different in their standard deviations as well. So my sense is that the unfortunate truth-I would far prefer to believe something else, because it would be easier to address what is surely a serious social problem if something else were true-is that the combination of the high-powered job hypothesis and the differing variances probably explains a fair amount of this problem.

And remember, the charge against Summers was not that his ideas were wrong - that was presumed - but rather that he ought not to have even given voice to them.

Posted by David Mader at 05:44 PM | Back to Main

But There Were Witches

Eulogizing Arthur Miller in the Spectator, Mark Steyn makes an invaluable point:

It was a marvellous inspiration to recast the communist ‘hysteria’ of the 1950s as the Salem witch trials of the 1690s. Many people have pointed out the obvious flaw — that there were no witches, whereas there were certainly communists. For one thing, they were gobbling up a lot of real estate: they seized Poland in 1945, Bulgaria in ’46, Hungary and Romania in ’47, Czechoslavakia in ’48, China in ’49; they very nearly grabbed Greece and Italy; they were the main influence on the nationalist movements of Africa and Asia. Imagine the Massachusetts witch trials if the witches were running Virginia, New York and New Hampshire, and you might have a working allegory.
That is, I think, the lasting damage of the hysteria over McCarthy: he was a bastard, probably an anti-Semite, certanly no liberal democrat - but he was right. There were Communists; there were witches. Puts the idea of a 'witch hunt' in a different light.

Posted by David Mader at 12:35 PM | Back to Main

February 16, 2005

Terrorism, Fatalism and Good Government

I was discussing Iraq the other day with a particularly intelligent guy who advanced the proposition that the war had made a major terrorist attack in the United States more likely than it would otherwise be. (He countered the neoconservative argument that democratization would reduce terrorism with the simple assertion that democracy doesn't work everywhere.) It occurred to me that one of the reasons I don't think this is true is that I already think that the possibility of a major terrorist attack in the United States in the next, say, fifteen years is in the neighborhood of 100%. Because I think we will be attacked again, I can't logically accept the proposition that the Iraqi campaign will increase the likelihood of an attack.

I was minded of that thought when I saw that Reihan at the American Scene had written, essentially in passing, that "I strongly suspect that there will be some sort of massive societal collapse in the next forty to fifty years (we're long overdue), a collapse that will involve tax avoidance on a massive scale." Now I happen to share that belief, although I haven't thought about it enough to discuss, say, the consequences of the collapse on a federal tax collection scheme. But that combination of beliefs got me thinking about how a belief in a substantial certainty of a future eventuality affects one's risk assessment in the present.

It's more or less undeniable that my belief in the substantial certainty of a future terrorist attack makes me more willing to risk potentially inciteful action. I guess my question is: is this bad? For instance, if you really do believe that Social Security as it currently exists will collapse (or rather, will make the nanny-state collapse) in about two decades, is it wrong to allow that belief to influence your willingness to propose reforms that would fundamentally alter the governmental order? Ultimately beliefs in the certainty of a future event are subjective, although they may be based on a host of objective considerations; and there's always the possibility of unaccounted-for events to throw expectations off. On the other had any proper governing philosophy will necessarily be based on some sort of expectation. How to square the circle?

Just a thought.

Posted by David Mader at 08:08 PM | Back to Main

February 15, 2005

Act the Part

Eugene Volokh suggests that actors who have heretofore been so spectacularly unsuccessful in the field of persuasive politics ought to approach the task as a role. He points to Ronald Reagan. All I have to say is: yea.

Posted by David Mader at 05:50 PM | Back to Main

More on Journalistic Privilege

Orin Kerr explains the DC Circuit's decision a little more, and his comments have convinced me that I need to read the case, which I'll hopefully do tonight. Kerr clarifies that the majority opinion found no First Amendment privilege, and found that if a common law privilege did exist, it was overcome in this case by other circumstances. Interestingly, the judge who wrote for the majority concurred in his own opinion to express his view that no common law privilege exists. Kerr excerpts from the concurrence to highlight the discussion of bloggers and their impact on the idea of journalism and a journalstic privilege. Swing on over and have a read; this is interesting stuff, and I wouldn't be surprised if it led to the first discussion of 'bloggers in pajamas' at the Supreme Court itself.

Posted by David Mader at 05:42 PM | Back to Main

More on Class Action

This article appears in today's New York Sun. It raises a point which my Civil Procedure prof raised yesterday - the fact that it's difficult to know what practical effect the bill will have when passed into law. It's quite possible that, from a practical perspective - that is, from the perspective of plaintiffs and defendants - there will be little change. That does not mean, of course, that the law won't have procedural effects - it manifestly will - or that those procedural effects won't lead to substantive changes in the legal order.

One trial lawyer quoted in the story does raise a separate practical issue, however:

Mr. Lerach said the bill’s wording will encourage state-by-state lawsuits, which may ultimately prove more onerous to businesses. He predicted new alliances among plaintiffs’ firms across the country.

“Be careful what you ask for, you might get it,”the attorney said.“ Do you really want to defend 35 state-court class actions?”

Mr. Lerach noted that nationwide settlements give companies a finality they cannot achieve in state-by-state litigation.“When a defendant has a big problem on its hands,they become very happy about a national class action to solve their problem nationwide,” he said.

This seems to jibe with my suggestion that moving these suits to federal courts which are nonetheless bound to apply state law will result in, at best, 13 regions of law rather than fifty; Lerach suggests that 50 separate jurisdictions will remain. That would seem to totally undermine the argument that a 'national problem requires a national solution.' It leaves proponents with little other than a political argument that when the national legislature disapproves of the various state judiciaries' application of the various states' laws, the legislature should remove such issues to a more politically-favorable federal judiciary.

This continues to sound like a bad idea to me.

[Via Howard Basham]

Posted by David Mader at 11:38 AM | Back to Main

DC Circuit Says No Journalist Privilege

In grand jury cases, that is. Howard Basham excerpts the opinion:

The District Court held that neither the First Amendment nor the federal common law provides protection for journalists' confidential sources in the context of a grand jury investigation. For the reasons set forth below, we agree with the District Court that there is no First Amendment privilege protecting the evidence sought. We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court.
Now I don't know anything about first amendment law, and I haven't read the case, and my superficial reading of this paragraph suggests to me that there is in fact some sort of privilege in some instances which may require special findings even in grand jury settings in order to be set aside; still, this sounds like a good thing to me. Journalists aren't special; the conceit that they are some sort of special 'estate' is at best corrosive of their profession, and at worst inconsistent with the principles of liberal government; and this decision would seem therefore to bring us closer to a notion of a journalistic responsibility than we've heretofore been.

Posted by David Mader at 10:59 AM | Back to Main

Hitchens v. Ali

Have a look at this debate between Christopher Hitchens and Tariq Ali. Hitchens, like Andrew Sullivan, is a thinker who demands an audience, even if one doesn't agree with his positions. I don't read Ali regularly, but this interview makes him look little more than a knee-jerk anti-American. Here's the money exchange:

AMY GOODMAN: Christopher, you've written in a piece in Slate talking about Michael Moore, Naomi Klein, Tariq Ali as "fellow travelers" with fascism.

CHRISTOPHER HITCHENS: Yes. I think that the ideology espoused by people like Zarqawi deserves the comparisons with fascism. It's fanatical, it's irrational, it's dictatorial, it's racist, and it's a product of a terrible psychological and sexual repression. It gashes me more than I can easily say, or probably even have time to say, to hear it called a resistance or an insurgency, or to have people call, as Tariq, I'm sorry to say did in the pages of New Left Review some time ago, for solidarity with it. That is something that I've never heard properly justified or explained. Michael Moore in his film compares these people in Iraq, who as you know are the murderers and rapists and torturers, to the founding fathers of the American revolution. This to me is inexplicable. Well, I'm sorry to say in the case of Michael Moore, it's not inexplicable. But in the case of Tariq, I thought you would offer a better explanation.

TARIQ ALI: I think words like fascism shouldn't be thrown about lightly, leave alone accusing people you disagree with of being "fellow travelers" with fascism. I mean, Christopher, from that point of view, is a fellow traveler with imperialism. He's a fellow traveler with people who are carrying out tortures in Iraq. The side he's on has killed several thousand innocent Iraqi civilians. But he supports that war, so you take, you know, what you get. You support a side of the war and you accept all of this as collateral damage, including the tortures, which are part and parcel of every single colonial war.

Hitchens makes a substantive point about the nature of the Zarqawi forces (what ever happened to him, by the way?), drawing a legitimate comparison between one racist tyrannical movement and another, and then concludes the syllogism by calling out those who have voiced support for Zarqawi. Ali responds by asserting, rather than arguing, that America is involved in imperialism, and then draws an inference, without the structure of syllogism, to conclude that Hitchens supports the consequences of the alleged imperialist policy.

But here's the thing: even if America is indeed an imperial power, it seems obvious, based on American conduct regarding the democratization of Afghanistan and Iraq, that American empire is at least conducive towards, and at best constructive of, local democracy and individual liberty. The 'tortures' and 'kill[ing of] several thousand innocent Iraqi civilians' may be a consequence of the imperial policy; but it is the aim or object of Zarqawi's policy. That's no small distinction; and it's instructive that Ali's first response to an accusation of supporting a tyrannical end is to accuse his accuser of supporting tyrannical consequences, though the consequences occur in the pursuit of a democratic, rather than a tyrannical, end.

Anyway, read the whole thing.

[Via Arts & Letters Daily]

Posted by David Mader at 12:48 AM | Back to Main

February 14, 2005

More on the Lebanon Bombing

Earlier I mentioned the assassination of Rafik al-Hariri in a bomb attack in Beirut this morning. Both the Daily Telegraph and the Times of London have lead articles on the subject. Perhaps surprisingly, the Times' is the stronger of the two, pointing the finger at Syria and noting that both America and the UN Security Council have, in the past couple of years, put Damascus on distinct notice to behave. If Assad is indeed behind the murder, he would be playing with the worst sort of fire.

Posted by David Mader at 11:54 PM | Back to Main

Speaking of Being Back...

Not just me, not just Coyne, but even the great Mark Steyn has kicked his site back into gear.

Posted by David Mader at 12:19 PM | Back to Main

More on McGuinty

Regarding my earlier post on Dalton McGuinty's astounding negative numbers, my brother Dan forwards links to a couple of site that have, in fact, been pushing the 'McGuinty-Liar' line: Fiberal.ca and Promise Breakers' Club. Not sure if these are Tory initiatives - if they are, I'd imagine they're arm's-length - but they do demonstrate that the meme is not entirely organic. Not that that's a bad thing.

Posted by David Mader at 11:33 AM | Back to Main

Bomb Kills Lebanon Opposition Figure


Former Prime Minister Rafik Hariri, a billionaire who helped rebuild his country after decades of war but resigned last fall after a sharp dispute with Syria, was killed Monday in a massive bomb explosion that tore through his motorcade. At least nine other people were dead and 100 wounded in the blast...

Hariri moved toward the opposition camp after leaving office in October in large part because of a dispute concerning Syria's controversial role in Lebanon. Hariri had rejected a Syrian-backed insistence that a rival politician, President Emile Lahoud, remain in office as president for a longer period.

Debka provides some context: Hariri was apparently tagged for a role in the future democratization of Lebanon, a process that was hoped to proceed as the Syrian influence in Lebanon shrivelled. Apparently Boy Assad isn't quite ready to give up. Every finger that I can see is pointing to Syria. The question is this: will the murder of the main opposition figure make the opposition more or less likely to win public support in upcoming polls? Or does this assassination indicate an unwillingness on the part of the Syrian tyranny to have polls go ahead at all?

Just in case you didn't think there was a war on.

Posted by David Mader at 08:21 AM | Back to Main

Larry Thompson Profile

My law school chums, and other court-watchers, may find this profile of Larry Thompson interesting. Thompson is - well, read the profile. It's rare to read a profile of a potentially prominent nominee where the most damning thing critics can come up with is some weak guilt-by-association. That alone makes Thompson seem like a promising candidate for the court.

Although there's this:

Liberal groups say they are concerned that he is a member of the Federalist Society, and that he has sat on the board of the Southeastern Legal Foundation, a conservative litigation group.
Liberal groups are concerned that he's a conservative? Yet another example of a growing trend, I fear: to far too many American liberals, simply being of a conservative mind makes one unfit for public office.

By the way, my Lisgar Collegiate readers may be interested to note the byline on the story. I'm pretty sure the 'Ch.' in the middle of the author's name stands for Chwialkowska.

Posted by David Mader at 08:13 AM | Back to Main

It's a Trend

Andrew Coyne makes a triumphant return to blogging. Huzzah!

Posted by David Mader at 08:09 AM | Back to Main

February 13, 2005

Class-Action and the Federal Judiciary

One of the stories that got me back into the blogging game was the news that Congress is preparing to pass a bill which would move class action law suits from state to federal courts. Following the bill's passage in the Senate last week, articles on the matter have appeared in the New York Times, the Christian Science Monitor and the U.S. News. The 'Class Action Fairness Bill' (can we please get rid of these goofy-sounding feel-good names? I mean, they just make Congress sound even more ridiculous than usual. Get serious.) would automatically move any class-action suit involving more than 100 plaintiffs and damages of more than $5 million to federal court. A class action, simply put, is one in which a number of plaintiffs who allege a common injury consolidate their lawsuits against a single defendant and share any damages. Because class actions tend to have so many plaintiffs, the damages awarded, when the plaintiffs are successful, tend to be, uh, gigantic.

I don't like this bill. And to understand why, we have to start with a basic premise - one which I'm pretty sure of, though I may be mistaken. That premise is simply this: there's no such thing as Federal common law tort law. Just doesn't exist. The federal judiciary has created some tort law in hearing cases arising under various tort-related statues, such as those governing claims by employees against a federal government employer for job-related injuries. Generally speaking, however, common law tort has been left to the states, with the result that the Supreme Court will not adjudicate on common law tort matters in the absence of a federal statute creating jurisdiction.

That has a pretty significant impact here, and the impact is this: even though class action suits will now be heard by federal courts rather than state courts, those federal courts will still be applying state law - being state statute and common law as previously interpreted by the state courts.

That seems rather to undermine the chief (rhetorical) argument in favor of the bill, which the USNews reports like this:

Supporters say it is more rational to have cases with nationwide implications heard by the federal bench, instead of by a few pro-plaintiff state courts around the country that have become magnets for litigation, such as Madison County, Ill., where a judge returned a $10.1 billion verdict in 2003 against Philip Morris in a lawsuit claiming its "light" cigarette label was deceptive.
There are two points to be made here. First, if these businesses don't like the way Illinois courts are interpreting and applying Illinois law, that's a problem to take up in Illinois. By forcing the removal of such cases to the federal courts, proponents essentially say 'I don't like the way your judges apply the law, so I'm going to give the cases to my judges, whose judgment I like better.' Remember, the same law is being applied; the argument for 'removing' the case to a different court system applying the same law therefore comes down to little more than preferential politics.

Second, and on a similar note, just how, exactly, do these cases have 'nationwide implications'? There is exactly no way in which a decision of any Illinois court could be binding on the courts, and therefore the laws, of any other state. Yes, a decision in Illinois inivolving a national corporation and litigants from many states can have a national impact - in the sense that it will affect the lives, and business, of individuals around the country. But an Illinois decision could never, to the best of my knowledge, affect the laws of any other state.

It's not entirely clear to me what sort of national impact decisions under this bill will have, because in truth state-law decisions made by federal courts are not binding on even those states whose law is applied. That would suggest that if the Fifth Circuit, say, decided a line of Texas cases, those cases would serve to create caselaw only for Texas suits, and could not be applied by the Fifth Circuit to suits arising under Louisiana law. That sounds good in theory, but in principle I'm not sure that the same justices sitting as the same court but under a different state law rubric will take the time to draw fine distinctions; the real result may be the creation of thirteen areas of class action tort law - corresponding to the circuits - rather than fifty. And that's assuming that the Supreme Court doesn't recognize in this bill a grant of jurisdiction to settle conflicts of law among the circuits on this point of law.

But my bottom line is this: tort law, even class-action tort law, is a state matter. Yes, there have been some outrageous damage awards in various states, and yes, many trial lawyers shop around for the best venue to make the most money off the backs of their clients. But that doesn't make it any less of a state matter. Using the coercive power of the federal government to nationalize class-action tort law is simply a bad idea. I'll leave supporters with a question: now that you've set a precedent for removing one area of state law to the national tribunal, what argument will you make when your ideological opponents gain a national majority and try to nationalize another? If class acton tort, why not... I dunno... death penalty?

Just asking.

Posted by David Mader at 11:11 PM | Back to Main

Positively Negative

Get a load of these numbers on Ontario Premier Dalton McGuinty, from the folks at SES Research:

Question – What words would you use to describe what you LIKE, if anything, about Dalton McGuinty? [Unprompted]
Unsure 44%
Like nothing 23%
Honest 5%
Works hard 4%
Doing the right thing 4%
A nice man 3%

Question - What words would you use to describe what you DISLIKE, if anything, about Dalton McGuinty? [Unprompted]
Lied 41%
Unsure 33%
Weak 5%
Doing a bad job 4%
All talk 3%

That's brutal. I'd thought McGuinty was being wise when he broke a number of election promises last year, since the promise were foolish in the first place, and it seemed a good idea to get the bad news out of the way in the first year of a mandate - as far from the next election as possible.

But the charge of 'liar' seems to have stuck, even though it hasn't, as far as I know, been pushed particularly aggresively by the opposition Conservatives. Of course, I don't live in Ontario, so I might be way off on this one; but my impression is that Dalton is just the kind of guy who generates these sorts of negative impressions. Is it too late to salvage his reputation among Ontarians? He'd better hope not.

[Full poll available here.]

Posted by David Mader at 10:47 PM | (0) | Back to Main

Okay, I'm Back

Long story. The nice part is that this has been by far the easiest re-installation of Movable Type I've yet had to do. (I've been running it since version 1.61, I think, and this is 3.5, so that should give you some idea). The downside is that the comment system is still a little messed up. And seeing as how it was the comments that gave me so much trouble in the first place, you'll forgive me if I'm not exactly leaping to fix the problem. For now, comments on new posts are turned off, and comments on old posts require a password via TypePad.

I know, I know, this isn't exactly the best way to win back my readers. You're right. And I will get around to fixing the system; really. For now, though, I'm happy just to have a platform to rant once more. Hoorah! We can all be happy about that... can't we?

Oh, and in the absence of a comment system, please feel free to e-mail me your thoughts at mader - at - maderblog.com. I'll read them, and post many a la Instapundit. And we'll see how that goes.

Posted by David Mader at 06:13 PM | (0) | Back to Main


Let's see if this works.

Posted by David Mader at 05:58 PM | (1) | Back to Main

February 02, 2005

Is North Korea Collapsing?

That's the suggestion of this article from the Times of London, which went around the blogosphere earlier this week.

Posted by David Mader at 01:44 PM | (3) | Back to Main

Posner on Summers on Sex

For those of my readers still interested in the subject, Judge Richard Posner of the Seventh Circuit - one of the leading rational thinkers in America today - addressed the Larry Summers controversy. Posner makes (at least) two interesting points. First, he argues that even if Summers' comments weren't inappropriate in the abstract, they were inappropriate in context:

Were Summers an expert on the reasons for gender-related occupational patterns, and as a result had special insight into the issue of women’s lack of proportional representation in science careers, there might have been a real cost in his failing to speak to the issue. However, since he is not an expert in this area, there would have been no great loss to human knowledge had he kept silent and let the experts engage with the issue...

So the benefit of Summers’s speaking out was small. The cost would have been small, too—were he not the highly visible president of the nation’s most famous university. For as a practical matter, chief executive officers do not enjoy freedom of speech.

As with his comments on pre-emptive war, Posner seems to be applying the traditional tort measure of 'breach' in assessing Summers' comments. In tort negligence, a fact-finder, in determining whether a defendant has breached a duty of care to the plaintiff, considers the probability of an injury (P), the extent of the loss resulting from the injury (L), and the burden on the defendant in acting to avert the injury (B). If the burden on the defendant is less than the product of the probability and the loss - if, in other words, B is less than PL - and if the defendant has somehow not undertaken that burden, he is found to have breached his duty of care.

Here, Posner seems to suggest that the probability of loss as a result of Summers' speech was, as a consequence of his position, quite high, while the burden on him of remaining silent on the issue was, as a consequence of his lack of expertise on the subject, quite low; having nonetheless commented, Summers might therefore be said to have breached his 'duty of care,' and so would be (in a simplified sense) liable for the consequent damage.

Second, Posner addresses the substance of Summers' talk:
The critics misunderstood Summers to have been claiming that female scientists are inferior to male scientists. Not at all. He made no comparison between male and female scientists. He was venturing possible explanations other than discrimination (the politically correct explanation) for why there are fewer female scientists than male. The ratio of female to male scientists is unrelated to the average quality of female and male scientists, and indeed is consistent with the average female scientist’s being abler than her male counterpart.
There's more in that vein. My impression has been that many of Summers' critics have been quick to point to the first issue - the negative consequence of Summers' comments - at the expense of the second issue - the possible sensibility, if not validity, of those comments. Posner's post is as good a place as any to start thinking about number two.

Posted by David Mader at 01:37 AM | (1) | Back to Main

For My Law School Homies

And a cautionary tale for all of us: Justice Alice Robie Resnik of the Ohio Supreme Court has been arrested for DUI:

A state Supreme Court justice was pulled over and charged with driving under the influence after several motorists called to report an erratic driver on an interstate.

"A strong odor of alcohol was detected" on Justice Alice Robie Resnick, and police believe alcohol was the reason for the erratic driving, Lt. Rick Zwayer, a State Highway Patrol spokesman, said Tuesday.

Resnick, 65, of Toledo, was arrested Monday afternoon on Interstate 75 near Bowling Green in northwest Ohio, Zwayer said.

She failed field sobriety tests and refused to take a blood-alcohol content test, Zwayer said. She also was charged with driving outside marked lines.

Driving while intoxicated is a misdemeanor that carries a possible penalty of three days to six months in jail and a fine of $250 to $1,000. Resnick's driver's license was suspended for a year for refusing the breath test, although a judge can revise the suspension to a shorter period or up to three years.

In one of those wonderful instances of synchronicity, we happen to be discussing DUI (well, DWI, I think) in criminal law right now, and so should be able to prosecute Justice Resnik under the Texas Penal Code - as an intellectual exercise, of course.

And here's your fun fact from the story: the Ohio Supreme Court has only one Democrat.

Well, uh, had.

Posted by David Mader at 01:27 AM | (1) | Back to Main

We Have Your Action Figure

I'm sorry, this is just ridiculous - in the sense that the perpetrators are deserving of nothing more nor less than ridicule. Kaus pre-empts any good feeling by pointing out that there will be more hostage-takings, and not fake ones. He's right; nonetheless, coming hard on the heels of what appears to have been a massively succesful eleciton in Iraq, this cannot but suggest once more the fundamental weakness of the so-called insurgents. It's not that they won't continue to be a potent force; it's that they are fundamentally weak, relative to Iraqi society as bolstered by American might, and that they will therefore, in the long run, fail.

Posted by David Mader at 01:23 AM | (0) | Back to Main

*tap*tap* Is this thing on?

Okay, here I am. Sorry. Truth is I just haven't been following the news as closely as I once did. I do hope you keep coming back to see what's new, and I hope you enjoy what I do post, but there may be less of it than there once was.

In the meantime, my favorite blog at the moment is the Highway 401 Blog published by my friend Charles. He's quite quickly mastered the combination of current events and personal asides that makes so many blogs so enjoyable. Today he's been blogging - with photos - about his recent trip to Nevada. Go check it out.

Posted by David Mader at 01:19 AM | (1) | Back to Main