The Watcher Cat

The Watcher Cat

Friday, January 31, 2014

A Commercial Announcement--But Not For Me

Those who enjoy the novel, theater and other cultural posts over here might enjoy reading The Quill and I, the new blog of my friend and editor Karen Clark.

More purely literary, less slapdash than this blog (which I often write in the interstices between long-form writing, work, diaconal formation--yeah, not terribly well proofread, here, ya follow?), Karen's blog promises to be a good place to leave behind politics, and law, and focus on the more cultural possibilities of the web.

Although--you might not find Venusian lullabies over there…

Fall of the House of Buckley?

We are seeing some speculation that the defamation action brought by climate scientist Michael Mann against National Review and conservative gadfly Mark Steyn may end the magazine's existence. From The Week:
Climate scientist Michael Mann is suing National Review and Mark Steyn, one of its leading writers, for defamation. It's a charge that's notoriously hard to prove, which is no doubt why the magazine initially refused to apologize for an item on its blog in which Steyn accused Mann of fraud. Steyn also quoted a line by another conservative writer (Rand Simberg) that called Mann "the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data." (Simberg and the free market think tank for which he works, the Competitive Enterprise Institute, are also named in the suit.)

The lawsuit has not been going well for the magazine. In July, Judge Natalia Combs Greene rejected a motion to dismiss the suit. The defendants appealed, and last week D.C. Superior Court Judge Frederick Weisberg rejected the motion again, opening the door for the discovery phase of the lawsuit to begin.

That's not all. On Christmas Eve, Steyn (who regularly guest hosts Rush Limbaugh's radio show) wrote a blog post in which he excoriated Greene, accusing her of incompetence, stupidity, and obtuseness. As a result of this outburst, the law firm that had been representing National Review and Steyn (Steptoe & Johnson) has dropped Steyn as a client and reportedly has plans to withdraw as counsel for the magazine as well. (Now representing himself in the lawsuit, non-lawyer Steyn continues on the attack here and here.)

[Update: National Review publisher Jack Fowler says that it was Mark Steyn who initiated the break with the law firm of Steptoe & Johnson, not the other way around.]

Now, the lawsuit may well be dismissed down the road. But the longer it continues, the more likely it becomes that Mann will eventually prevail, either by forcing an expensive settlement or by prevailing in court and winning a substantial penalty from the

So, let's see. Steyn has posted the most recent ruling from the court on his website, and the Court's reasoning is fairly straightforward:
Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably several of defendants' statements fall into these protected categories. Some of defendants' statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff on Counts I-VI, including the Intentional Infliction of Emotional Distress alleged in Count VI...
Now, I'm not an expert on the law within the District of Columbia, but the only count as to which the court's analysis seems even potentially open to question, on a motion to dismiss, is intentional infliction of emotional distress. As is the case in New York State, where I have handled several cases alleging that cause of action, that claim requires a showing of "[e]xtreme or outrageous conduct [which] is that which is intolerable to society." In my experience, that is a very heavy burden to lift.

However, that is pretty much all the comfort I have to offer National Review or Steyn. The court's reasoning on defamation is sound, as far as it goes.

The principal difficulty from the defendants' perspective is, according to Newsweek, multiple investigations and reviews of Mann's "hockey stick" graph showing a sudden spike in recent years of global temperature, have concluded that Mann's findings were in no way faked. Unless Steyn has something pretty weighty to establish that these reviews and investigations are wrong, that's the first prong of defamation established.

The Supreme Court has just this week reaffirmed the actual malice requirement in the context of defamation, particularly its prior holdings that a statement is made with actual malice if it is made with "knowledge that it is false or with reckless disregard of whether it was false or not."

Timing is important here; as the first order denying the motion to dismiss makes clear, the series of six investigations which cleared Mann of any inappropriate behavior took place in 2009-2010. (pp. 2-3) Steyn, in 2012, published his blog post accusing Mann of scientific fraud and comparing him to Jerry Sandusky (a piece of hyperbole the court did not find to be potentially defamatory).

The fact that, to quote Newsweek, "multiple investigations - at Penn State, the University of East Anglia, the United Kingdom's House of Commons Science and Technology Committee, the U.K. Secretary of State for Energy and Climate Change, the Environmental Protection Agency (EPA), the National Academy of Science - have independently concluded that there was no basis for claims that the emails show Mann and the other climatologists had engaged in misconduct or fudged the data," is going to go a long way toward establishing that Steyn made his statements with reckless disregard for their falsity. He either did not read these reports, despite the considerable publicity they received, or disregarded them, or--and here's the potential joker in the pack--has some evidence to the contrary upon which he could found a reasonable belief that his allegations were true, and thus did not act recklessly in ignoring the plethora of reports to the contrary.

National Review's response to the demand for a retraction and an apology was a column by editor Rich Lowry, which brushed the whole thing off as a "nuisance lawsuit," stating that "In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong. I consider Mann’s prospective lawsuit fraudulent. Uh-oh. I guess he now has another reason to sue us." (However, it is interesting to note that Lowry's column contained links to copies of Mann's attorney's letter, and NRO's response, neither of which is functioning as of this writing.) NRO must be concerned that its main defense in Lowry's column, that the statements could not be considered factual, have been rejected by not one but two courts.

Of course, all of this is at the motion to dismiss stage, and discovery (zestfully threatened in Lowry's column) may well turn up facts that weaken Mann's case or strengthen Steyn's and/or that of NRO. Still, for the moment, it looks grim for the House that Buckley Built.

Tuesday, January 28, 2014

Walking on Broken Glass

There has been a fair amount of commentary on the decision by the Supreme Court of California denying Stephen Glass's admission to the bar of that state.

Fairly typical is this response, from Slate's David Plotz:
Stephen Glass, the disgraced New Republic journalist, and once my friend, lied to me most of the times we spoke. My wife Hanna Rosin was one of his closest confidantes at the New Republic, and he played her for a fool, too, and even tried to get her to defend his lies to the magazine's editor. In The Fabulist, the dreadful, self-justifying novel Glass wrote a couple of years after his disgrace, he depicted the Hanna-like character as conniving, sleazy, and disloyal, and the Hanna-like character’s husband as even worse.

So, needless to say, I don’t like Steve. And I don’t trust Steve.

Even so, today’s California Supreme Court decision denying him admission to the California bar is misguided and cruel, a verdict that embodies what is wrong with American law. The Supreme Court spends 35 smug, self-righteous pages finding him morally unfit to be a lawyer in California. His “turpitude” required him to show overwhelming evidence of rehabilitation, but the court found his apologies self-interested, his confessions incomplete, and his pro bono work insufficient. Lawyers must be utterly devoted to “honesty,” the justices assert—a claim that only lawyers could make about law with a straight face—and Glass isn’t.


Admitting Stephen Glass to the bar would help the people of California who need lawyers. He has proved that for 10 years. But the Supreme Court and the California Committee of Bar Examiners don’t care about that. They care about telling themselves that their profession is saintlier than it is, and they’re superior to the reformed liar who wants to work with them. But law isn’t holy orders. It’s a job.
Andrew Sullivan agrees, and the decision itself quotes former New Republic editor Martin Peretz describing the process as "an act of stalking." (Opinion at p. 20)

Now, I'm equivocal on the appropriate outcome here, but let's just be clear about Plotz's reasoning: He's not actually engaging with the rationale offered by the Court. The Court grounded its reasoning in the fact that the evidence of rehabilitation was severely undercut by the evidence that Glass had given misleading and incomplete information to the New York State Committee on Character and Fitness in his (unsuccessful application for admission to the New York State bar in 2002, and, further, that Glass's testimony at the hearing before the California authorities regarding the New York proceedings and his efforts to redress the harm he had done was likewise evasive and misleading by turn, concluding that "[t]he record also discloses instances of dishonesty and disingenuousness occurring after Glass's exposure,up to and including the [California] State Bar evidentiary hearing in 2010." (Opinion at 28.) Thus, Plotz's condemnation of the California Supreme Court on the basis the evidence established Glass's rehabilitation is at variance with the grounds set forth in the opinion, undermining his rhetorical questions, "Exactly how much longer would he need to work in this dedicated way for the justices to forgive? One more year? Five? Ten? How’s never? In the Bible, Jacob served 14 years: Would that be enough?"

So why am I equivocal?

Well, I believe in forgiveness, and in second chances, and, while Glass has not been (assuming the Court's summary of the record before it is correct) truthful about his past, it is impressive how many people in his new chosen profession believe in him now. (Of course, this may just mean that he's a better con man than those lawyers and other professionals think.)

But on the negative side, look: Lawyers have many, many chances to mess people's lives up, if they go into any of the fields that deal with them. It isn't enough to say, with Plotz, that case citations and record citations can be looked up and verified. Often, yes. But in oral arguments? Or with an overburdened trial part judge who is often hard-pressed for time, or relying on clerks? And factual submissions may not be tested until trial, which doesn't take place in the overwhelming majority of cases in California--95% in 2001. Not to mention Glass's own clients--will their cases be viewed with special skepticism based on the identity of their lawyer, even if they don't know about his past? And, even more mundanely, what about billing? With all the ways attorneys can overcharge clients, either any firm or any client he works with would be at serious risk. So it's not so simple.

I'm not saying the California Supreme Court reached the only reasonable result here. But it is hard, frankly, to see it as unreasonable, either.

Sunday, January 26, 2014

My Way or the High (Culture) Way?

One of the big decisions to be made in having written Phineas at Bay--I can say that because the second draft has come back from my peerless editor, Karen Clark--and the end of the drafting is nigh--was how to publish.

Or, shall we say it differently--to seek an agent, and to try to break down doors, and to go through the traditional path with my Victorian novel, or, to take arms against a sea of troubles, and by self-publishing, end them?

My first instinct was: Do it. Cut the Gordian knot, and self-publish.

Now, I'm generally one for believing my gut instinct. But I also hedge my bets and seek advice. I spoke to several friends who are published novelists,met another, and all of them spoke as one: Unless you're a star or the new hot thing, there is almost no support to be had from a publisher. Do it on your own.

Phineas at Bay has been a pleasure to write; did I really want to turn it into a source of anxiety and stress, seeking an agent to get a publisher to maybe get it out in a couple years?

But what of the claims of high culture? The publisher's role as gate-keeper, and all that?

All that, of course, seems to be falling even as I write.

Still, I'm interested in any thoughts, feedback….

And watch this space!

Saturday, January 25, 2014

Happy Burns Day!

Today is the birthday of Robert Burns (1759-1796), the national poet of Scotland.

His poem A Man's a Man For A'That was used to open the Scottish Parliament in 1999, and to commemorate that opening:

The poem:
Is there for honest Poverty
That hings his head, an' a' that;
The coward slave-we pass him by,
We dare be poor for a' that!
For a' that, an' a' that.
Our toils obscure an' a' that,
The rank is but the guinea's stamp,
The Man's the gowd for a' that.

What though on hamely fare we dine,
Wear hoddin grey, an' a that;
Gie fools their silks, and knaves their wine;
A Man's a Man for a' that:
For a' that, and a' that,
Their tinsel show, an' a' that;
The honest man, tho' e'er sae poor,
Is king o' men for a' that.

Ye see yon birkie, ca'd a lord,
Wha struts, an' stares, an' a' that;
Tho' hundreds worship at his word,
He's but a coof for a' that:
For a' that, an' a' that,
His ribband, star, an' a' that:
The man o' independent mind
He looks an' laughs at a' that.

A prince can mak a belted knight,
A marquis, duke, an' a' that;
But an honest man's abon his might,
Gude faith, he maunna fa' that!
For a' that, an' a' that,
Their dignities an' a' that;
The pith o' sense, an' pride o' worth,
Are higher rank than a' that.

Then let us pray that come it may,
(As come it will for a' that,)
That Sense and Worth, o'er a' the earth,
Shall bear the gree, an' a' that.
For a' that, an' a' that,
It's coming yet for a' that,
That Man to Man, the world o'er,
Shall brothers be for a' that.

Friday, January 24, 2014

"…And a Wheat Thin the Size of Lake Tahoe…"

As all true fans of The West Wing know:

LEO: Andrew Jackson, in the main foyer of the White House, had a big block of cheese. The block of cheese was huge.... The block of cheese was two-tons, and was there for any and all who might be hungry. It was there for the voiceless, the faceless...

And the line between fantasy and reality is again crossed:

The official poop:
President Obama has always been dedicated to the idea that the White House is truly "The People's House" and has worked to make 1600 Pennsylvania and his administration open and accessible.

This isn't a new idea, the same can be said of President Andrew Jackson. On February 22, 1837, President Jackson hosted an open house featuring a 1,400-pound block of cheese that sat in the main foyer of the White House. This original "Big Block of Cheese Day" opened the doors of the White House to thousands of citizens to interact with cabinet members and White House staff – and carve off a slice of the four foot by two foot thick slab of cheddar.

On Wednesday, January 29th, with a nod to history (and maybe the TV show the West Wing), the Obama Administration is hosting the first-ever virtual "Big Block of Cheese Day," during which dozens of White House officials will take to social media for a day long 'open house' to answers questions from everyday Americans in real-time on Twitter, Facebook, Tumblr, Instagram and via Google+ Hangout.

So be sure to visit to watch the State of the Union Address live on January 28, 2014 at 9 p.m. ET and stay tuned for a complete schedule of engagement events for virtual "Big Block of Cheese Day." You can start asking questions now using the hashtag #AsktheWH.
Somewhere, John Spencer has big grin on right about now.

Only one criticism--wrong hashtag. It should, of course, have been #CodeGouda

(Hat Tip--old friend Anthony Clark)

Thursday, January 23, 2014

D'ough? D'oh!

I admit it; I have cordially disliked Dinesh D'Souza since his nasty screed, The Enemy at Home, in which he argued that the American Left was to blame for 9/11, because, you see, the jihadist critique of the decadence we have fostered was correct. (No, really; that's what he argued.) And his contention that
the anticolonial ideology of Barack Obama Sr. is espoused by his son, the President of the United States….


Incredibly, the U.S. is being ruled according to the dreams of a Luo tribesman of the 1950s. This philandering, inebriated African socialist, who raged against the world for denying him the realization of his anticolonial ambitions, is now setting the nation’s agenda through the reincarnation of his dreams in his son. The son makes it happen, but he candidly admits he is only living out his father’s dream. The invisible father provides the inspiration, and the son dutifully gets the job done. America today is governed by a ghost.
So, when D'Souza became the President of a Christian College near my office, I, in the words of Gonzalo in The Tempest, inly wept, but held my peace. Which was just as well, because it didn't take; he resigned "two days after World Magazine, a Christian-oriented publication, reported that he had checked into a Comfort Suites in South Carolina in September with a woman he introduced as his fiancée, despite the fact that he was already married."

Again, I held my peace. Oh, I was tempted, I admit to write a snarky piece about his rather high-handed response (“I had no idea that it is considered wrong in Christian circles to be engaged prior to being divorced,” he said, in one of the only funny lines I have ever heard attributed to him). But, no. I held back.

However, this is worthy of a little analysis:
Dinesh D’Souza, a best-selling conservative author and filmmaker, was indicted on Thursday on charges that he used straw donors to illegally donate to a 2012 Senate campaign.

Mr. D’Souza is an outspoken political commentator who directed “2016: Obama’s America,” a scathing anti-Obama documentary released in the final months of the president’s re-election campaign.

Federal prosecutors in Manhattan said that Mr. D’Souza encouraged others to give $20,000 to a Senate candidate and reimbursed them for the donations. Election law prohibits such arrangements and caps donations at $5,000 per donor to any one candidate.The Senate candidate was not identified in the indictment. Mr. D’Souza donated to only one federal candidate in 2012, giving $5,000 to Wendy Long, a New York Republican who lost her challenge to Senator Kirsten E. Gillibrand, a Democrat.

“Mr. D’Souza did not act with any corrupt or criminal intent whatsoever,” his lawyer, Benjamin Brafman, said in a statement. “He and the candidate have been friends since their college days, and at most, this was an act of misguided friendship by D’Souza.”

Prosecutors also charged Mr. D’Souza with causing the unidentified candidate’s campaign to unwittingly file false campaign documents. He is scheduled to be arraigned on Thursday in federal court in Manhattan.
That's the defense? That he didn't know that it was wrong to, after making the maximum individual contribution to his old friend, fund others' donations? In plain English, his own lawyer is saying that D'Souza "misguidedly" did an end-run around the statute by laundering donations beyond the maximum through other people?

Um, that's perilously close to an admission of guilt.

Meanwhile, Matt Drudge (remember him?) is claiming that this and the indictment of former Governor Bob McDonnell is Obama persecuting his critics.

Yeah. And if Brafman (Or, for that matter, the McDonnells) hadn't essentially conceded the truth of the facts underpinning the indictments, while challenging their interpretation, you could almost, by squinting, and using a prism, see it.

I have to admit it, I find the notion that Obama has been biding his time before the Great Purge of Dissent vaguely hilarious. I think Drudge and his ilk have him confused with someone else:

(At 1:20)

One Final Tale of the City

My copy of The Days of Anna Madrigal by Armistead Maupin arrived Tuesday, and I have already finished it. (For a perceptive and appreciative review, see Laura Miller's). My own critique, in sum: Too short.

No, no; I don't really mean that. It's just that this book concludes the third trilogy in the series that began with Tales of the City, and almost inevitably, ends the series as a whole. This final trilogy is the most shot-through with melancholy underlying the humor of the three--all of our friends from 28 Barbary Lane demonstrably older, mortality knocking at several doors through each of the three books, and yet is also a celebration of life while it goes on. Michael Tolliver Lives begins the trilogy in an affirming way--Michael, well, lives, despite AIDS; former landlady Mrs. Madrigal survives a close call with death, and Mary Ann Singleton (now married, wealthy and bored in Connecticut) returns briefly to her old friends whom she had terribly wounded by her departure in Sure of You, the rather dark ending of the second trilogy--in which the denizens of 28 Barbary Lane are scattered, and Mary Ann herself, from having been our viewpoint character, becomes startlingly, but credibly, unsympathetic.

In Mary Ann in Autumn, Maupin continued Mary Ann's return journey to her friends. It closed a circle with the first volume, and while Mary Ann's innocence is lost, we see that her original self is not. She's glossier and more heavily varnished than she once was, but she has some of that scraped off her in the course of the novel, in part because of her need for her friends, but also by revisiting one of the darker facets of the very first novel. Mary Ann is, by the end of the book, re-integrated into the "logical family" of Mrs. madrigal, although her ex-husband Brian Hawkins, so vital a presence in Michael Tolliver Lives, is marginalized to a cameo.

It's Mary Ann whose appearances in Days amount to a cameo, and Brian's story that moves forward, re-uniting him with an old "almost lover", and with Mrs. Madrigal--whose story moves back and forth in time. At 92, Anna is making up her final accounts with the man she once was, and the conflicted boy Andy Ramsay had been even earlier.

It's tender, funny, and, in places, sad. This book belongs to the core characters who have populated the series, though the younger characters are well used, especially Shawna, Brian's adopted daughter. The fact that the action is set largely outside of San Francisco, that Michael's gardening business is sputtering, and that all of our friends are showing their age, adds a touch of nostalgia to this closing volume of the third trilogy. It's an elegy for the San Francisco that made Anna Madrigal and her "logical family" possible, while noting the the City ain't what it used to be--as witness 28 Barbary Lane itself, now owned by "dot commers" who have "made it look like a five-star B and B."

Even the most wonderful party must, at some point, come to an end.

Sunday, January 19, 2014

Dysfunction, Unction, No Compunction

Further proof, as if any were needed, that the U.S. Senate is simply not doing its job
Sen. Richard Burr (R-N.C.) avoided question after question on Tuesday about why he's blocking a long-stalled judicial nominee who he previously recommended to President Barack Obama.

Burr said in July 2009 that Jennifer May-Parker had "the requisite qualifications to serve with distinction" as a nominee for the U.S. District Court for the Eastern District of North Carolina. Obama submitted her nomination to the Senate in June 2013, but she hasn’t moved since because Burr is withholding his "blue slip" to the Senate Judiciary Committee. The blue slip process is a courtesy, not a rule, honored in the committee that allows a home-state senator to advance or block a nominee. Fellow North Carolina Sen. Kay Hagan (D) has already submitted her blue slip.

HuffPost caught up with Burr in the Capitol and asked him why he's holding up May-Parker, who, if confirmed, would fill the longest-standing district court vacancy in the country. The North Carolina judicial seat has been empty since 2005.


An administration official who requested anonymity to speak candidly said the White House is just as perplexed as anyone about why Burr is unilaterally blocking his own nominee.

One thing that's a little unusual in May-Parker's case is that four years passed between the time that Burr recommended her and when the White House sent her nomination to the Senate. A source familiar with her nomination process, who also requested anonymity, said that administration officials and North Carolina senators spent those years going back and forth to find nominees on whom they could all agree. The White House finally vetted May-Parker and agreed to nominate her, expecting Burr's support. The GOP senator has been blocking her ever since.
What is the nihilistic gamesmanship nonsense? The President accepts a Republican Senator's suggestion for a nominee to the District Court within his state, only for the Senator to then block her nomination? It's right out of Lewis Carroll. Or, perhaps, I should say, Groucho Marx:

See why i went on a political sabbatical? And why I'm going back on one again?

Friday, January 17, 2014

Let's Hear it for the Man with the Gun!

Remember when Hawkeye Pierce was cool? A hero who disdained guns, looking on them as a confession of failure of imagination and of intellect. An attitude shared by the Doctor, in Doctor Who, by the way, whose occasional use of them generally indicates desperate measures indeed being called for.

And they are not alone in this attitude.

But in America, I'm afraid, we love our guns.

So much so that rather than regulate them, and instill a culture of same gun use, we are training our children to hide from mad gunmen like we were trained to cower against nuclear blasts:
For students across the country, lockdowns have become a fixture of the school day, the duck-and-cover drills for a generation growing up in the shadow of Columbine High School in Colorado and Sandy Hook Elementary School in Connecticut. Kindergartners learn to hide quietly behind bookshelves. Teachers warn high school students that the glow of their cellphones could make them targets. And parents get regular text messages from school officials alerting them to lockdowns.

School administrators across the country have worked with police departments in recent years to create detailed plans to secure their schools, an effort that was redoubled after the December 2012 shootings in Newtown, Conn. At the whiff of a threat, teachers are now instructed to snap off the lights, lock their doors and usher their students into corners and closets. School officials call the police. Students huddle in their classrooms for minutes or hours, texting one another, playing cards and board games, or just waiting until they get the all clear.

“They kept saying, ‘Lock your doors and keep everyone away from the windows,’ ” said Rebecca Grossman, a 10th grader at Watertown High School, outside Boston, where students have been forced to “shelter in place” three times this school year, a less serious version of a full lockdown.
Isn't that just bloody marvelous?

Now let me point a few things out, about our current toxic love affair with the gun.

First, I am not talking about gun owners who use them for hunting, or even recreational competition. I'm talking about people who are political activists, trying to force guns into every facet of American life, like the Open Carry Movement:
Some two dozen men and women from the gun rights group Open Carry Texas, armed with rifles and shotguns, sat outside a Dallas-area restaurant earlier this month while four women—members of Moms Demand Action for Gun Sense in America, a small gun control advocacy organization—ate lunch inside at the Blue Mesa Grill. The group posed for photos in the strip mall parking lot, brandishing their weapons and the American flag. After 15 minutes, they packed up their protest and headed to Hooters.

“It was very unsettling. It was very disturbing,” one of the moms explained two days later in a televised interview. The groups’ founder, Shannon Watts, said patrons were “terrified by what appeared to be an armed ambush.” The hashtag #gunbullies was born.

The incident is the latest headline-grabbing showdown involving open carry activists, who want the unconcealed carrying of firearms to be as normal as holding a cell phone. In groups armed with rifles and Gadsden flags, they’ve demonstrated at the site of President Kennedy’s assassination. They walk alone through state capitol buildings, and Home Depots, baiting police officers and frightening workers and ordinary citizens.
I'm also talking about the NRA which responded to the Sandy Hook shooting by calling for "a good guy with a gun" as the answer to "a bad guy with a gun. (That the argument had previously been made by Uncle Duke might have slowed down a less fanatical organization, but not the NRA.)

Second, the same judicial decision that found an individual right to keep and bear arms also found that the right was not absolute:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
(District of Columbia v. Heller, per Scalia, J.)

And yet, any effort to apply these permissible regulations of guns, whether on the state or federal level, leads to swift retribution.

This even though, according to research published this year in the Law Enforcement Bulletin, conducted by two scholars employed by the Advanced Law Enforcement Rapid Response Training Center, in examining what the authors call "Active Shooter Events" from 1999-2013:
The dotted trendline shows a definite increase over the past 12 years. In fact, the number of events drastically increased following 2008. The rate at which these events occurred went from approximately 1 every other month between 2000 and 2008 (5 per year) to more than 1 per month between 2009 and 2012 (almost 16 per year). The authors’ tracking also indicates that this increased rate has continued into 2013—more specifically, there were 15 events. While it is possible that this increase is an artifact of the search strategy (perhaps, archiving of the news reports has improved in recent years), the authors believe that the observed rise represents a real increase in the number of events in recent years. Figure 2 shows the number of people shot and the number of people killed for each year. Here again the trend line shows a definite increase.
(To be fair, the authors call for, among other recommendations the sort of civilian training the necessity of which I am deploring.)

In short, the norming of guns and gun violence into every facet of society continues. It's like the mocking lyric from Aspects of Love: "Everybody loves a hero! Let's hear it for the man with the gun!"

Who am I to protest, after all?

Thursday, January 16, 2014

Megan McArdle is, in Fact, Wrong About Everything

Congratulations to Jonathan Chait for demonstrating that this reliable axiom still holds true:

Yup, Chait's right; it's just what she titled her 2009 column. But she didn't really mean it, did she? Well, yeah:
Basically, for me, it all boils down to public choice theory. Once we've got a comprehensive national health care plan, what are the government's incentives? I think they're bad, for the same reason the TSA is bad. I'm afraid that instead of Security Theater, we'll get Health Care Theater, where the government goes to elaborate lengths to convince us that we're getting the best possible health care, without actually providing it.

So in the absence of a robust private US market, my assumption is that the government will focus on the apparent at the expense of the hard-to-measure. Innovation benefits future constituents who aren't voting now. Producing it is very expensive. On the other hand, cutting costs pleases voters this instant.

The other major reason that I am against national health care is the increasing license it gives elites to wrap their claws around every aspect of everyone's life. Look at the uptick in stories on obesity in the context of health care reform. Fat people are a problem! They're killing themselves, and our budget! We must stop them! And what if people won't do it voluntarily? Because let's face it, so far, they won't.
McArdle, in short, feels that Chait has defamed her by attributing to her views that she has publicly espoused in a column under her own byline.

Awesome. She wins the "Billy" for January:

Monday, January 13, 2014

The Senate is in Session Even When It Isn't

The transcript of the oral argument in NLRB v. Canning, in which the legitimacy of recess appointments made while the Senate is in pro forma sessions, at which no business is done, is not encouraging for the Obama Administration's position. Or, indeed, for future presidents, as well as the legitimacy of a century of governmental practice. From The Times:
Much of the argument concerned how to reconcile the text of the Constitution with more than a century of tradition.

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said presidents of both parties have made many appointments in breaks during sessions of Congress. He warned the justices not to “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”

Justice Antonin Scalia responded by indicating that the text of the Constitution was more important than contrary practice.

He added that the practical consequences of a ruling against the administration’s position were unlikely to be significant. “You don’t really think we’re going to go back and rip out every decision made,” Justice Scalia told Mr. Verrilli.
Ah, Scalia. The practice cannot be used to illuminate the intent and the meaning of the text--clarifying the ambiguity between formally declared recesses and recesses in fact but not in name (that would be unprincipled, d'you see!), but the illegitimate decisions made by illegitimate appointees (because they were appointed consistent with the practice all the way back to Washington, and that tells us nothing since Congress can be summoned on a dime now), why, those must stand, because any other outcome would be impractical.

And, yes, we are talking about allowing the Senate to eliminate recess appointments without eliminating actual recesses:
But Justice Ginsburg said that position has far-reaching implications. “Your argument would destroy the recess clause,” she said. “Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments.”

Mr. Francisco said that was indeed the implication of his position. “The recess appointment power is a contingent one,” he said. “It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.”
What's interesting is that the Court seems to have a broad consensus on this issue, with Justice Kagan describing the Clause as a "historic relic" and Justice Breyer finding no historical evidence that the owed existed to allow the President to break a logjam. So the Senate can be in perpetual session--even when nobody's home.

Sunday, January 12, 2014

Theater of Cruelty

Amanda Hess' essay Why Women Aren't Welcome on the Internet has justly received a great deal of attention, even from unlikely sources. (Imagine me posting a link to Douthat without snark!) A careful blend of statistical analysis, personal experiences--Hess's own and those of other female bloggers--she builds a strong case that the treatment women undergo has the effect of silencing all too many female voices.

Hess then suggests a civil rights response:
Federal civil rights law can punish “force or threat[s] of force” that interfere with a person’s employment on the basis of race, religion, or national origin. That protection, though, doesn’t currently extend to threats targeted at a person’s gender. However, other parts of the Civil Rights Act frame workplace sexual harassment as discriminatory, and requires employers to implement policies to both prevent and remedy discrimination in the office. And Title IX of the Education Amendments of 1972 puts the onus on educational institutions to take action against discrimination toward women. Because Internet harassment affects the employment and educational opportunities of women, laws could conceivably be amended to allow women to bring claims against individuals.

But it’s hard to get there from here. As Citron notes, the Internet is not a school or a workplace, but a vast and diffuse universe that often lacks any clear locus of accountability. Even if online threats are considered a civil rights violation, who would we sue? Anonymous tweeters lack the institutional affiliation to make monetary claims worthwhile. And there is the mobbing problem: One person can send just one horrible tweet, but then many others may pile on. A single vicious tweet may not clear the hurdle of discriminatory harassment (or repetitive abuse). And while a mob of individuals each lobbing a few attacks clearly looks and feels like harassment, there is no organized group to take legal action against. Bringing separate claims against individual abusers would be laborious, expensive, and unlikely to reap financial benefits. At the same time, amending the Communications Decency Act to put the onus on Internet platforms to police themselves could have a serious chilling effect on all types of speech, discriminatory or otherwise.

Citron admits that passing new civil rights legislation that applies to a new venue—the Internet—is a potentially Sisyphean task. But she says that by expanding existing civil rights laws to recognize the gendered nature of Internet threats, lawmakers could put more pressure on law enforcement agencies to take those crimes seriously. “We have the tools already,” Citron says. “Do we use them? Not really.” Prosecuting online threats as bias-motivated crimes would mean that offenders would face stronger penalties, law enforcement agencies would be better incentivized to investigate these higher-level crimes—and hopefully, the Internet’s legions of anonymous abusers would begin to see the downside of mouthing off.
Now, this has the potential to raise all kinds of First Amendment problems, as even Hess and the legal scholars she cites acknowledge, and, depending on the breadth of the definition such a law could implicate the some of the concerns I expressed years ago about the MacKinnon-Dworkin anti-pornography civil rights law.

But as Hess and the legal scholars upon whose work she draws suggest, the analogy to workplace discrimination provide a template that seeks to limit the reach of the law to protect the free exchange of ideas, while protecting the right of women to participate in equal terms online. The limitation of the hostile work environment doctrine to speech that constitutes a verbal act--that is, not the expression of ideas, but the functional equivalent of an act, seeks to respect the boundaries drawn by the First Amendment. Any law that tries to regulate online speech will have to be especially carefully drawn to respect that demarcation. And I am especially concerned by a criminal law approach, especially in view of the very lack of internet savvy-ness of many law enforcement agencies detailed by Hess. Still, Hess has made a strong case that the alternative--doing nothing--will perpetuate a greater degree of censorship, and an especially invidious kind: silence by intimidation.

Saturday, January 11, 2014

Time, Time, What Has Become of Me?

Proof that Brooklyn truly is a borough where anything can happen, the above picture was taken by my esteemed fencing coach.

But no, I haven't been traveling.

So, it's been a little sparse around here in terms of posting, no? Apologies all around;2014 is shaping up to be a year of much change, which will, inevitably, give my much to write about here, but which is still in the planning stage.

Up first, Phineas at Bay is just about finished, and I anticipate publishing this year. There will be a lot more about that in the weeks ahead, as the launch date is fixed, and then approaches. In fact, my online presence will probably focus much more on the book around that time, and hopefully those who come for theological matters, law and gratuitous Who-age may find their patience tested. I hope you stay; we're in a legal/political silly season now, but more interesting things will soon come, and I hope to have some things to share in all those areas.

(Photo by Judy Cummins)

Monday, January 6, 2014

In the Bleak Midwinter

So here's the thing about clinical pastoral training--it's stark. Moments of heartbreak mixed in with stretches of tedium, and every now and again a moment of inspiration--wait; that's too Hallmarky. A moment when God grabs you by the scruff of the neck, and shakes the complacency out. That's a little closer.

A moment where, for example, a patient who is slowly running out of options, told me that she was not worrying about dying--that she figured that, when it came, there would not be too much for her to do, so she would let it go.

That rings true to me, and shows a kind of courage I only hope I have when my own time comes.

The courage I see every day I go astonishes me.

It's the sort of thing that makes the bleak midwinter less bleak--a gentle, practical response to the Great Fear--and one that cuts that great fear down to size.

So what has this got to do with Holst's setting of Christina Rossetti's poem? I'm not sure; but recently, when I needed an image of the simple light of goodness flickering without expiring, despite the dark, that's what came to mind. No great vaunting claims; no supernal word spinning. Simple words, simply sung, with conviction and truth.

A gentle, pragmatic acceptance that we can do only that which we can do, in the face of the great mysteries and experiences of life, and trust that the result will be a worthwhile thread in the great tapestry.

A Happy Epiphany, one and all.