Tee Hee

A little funny, courtesy of McSweeney's.

Walt Whitman

I have heard what the talkers were talking, the talk of the beginning and the end,
But I do not talk of the beginning or the end.

There was never any more inception than there is now,
Nor any more youth or age than there is now,
And will never be any more perfection than there is now,
Now any more heaven or hell than there is now.

Urge and urge and urge,
Always the procreant urge of the world.

Out of the dimness opposite equals advance, always substance and increase, always sex,
Always a knit of identity, always distinction; always a breed of life.

To elaborate is no avail, learn'd and unlearn'd feel that it is so.

Bush Budgetary Shenanigans

The Washington Post reports (via MSNBC) some interesting information about the budget.

First, a big surprise. Let me imitate the Heritage foundation mouthpiece, "There is a massive budget shortfall, so we need to cut spending. Why oh why is there a budget shortfall?"

But the cuts are politically sensitive, targeting popular programs that Bush has been touting on the campaign trail. The Education Department; a nutrition program for women, infants and children; Head Start; and homeownership, job-training, medical research and science programs all face cuts in 2006.

Republican initiatives all, no doubt.

But the predictable "we made a tax cut and now we need to cut the budget" activities aren't the most disgusting part. That would be this:

The administration has widely touted a $1.7 billion increase in discretionary funding for the Education Department in its 2005 budget, but the 2006 guidance would pare that back by $1.5 billion. The Department of Veterans Affairs is scheduled to get a $519 million spending increase in 2005, to $29.7 billion, and a $910 million cut in 2006 that would bring its budget below the 2004 level.

...

The $78 million funding increase that Bush has touted for a homeownership program in 2005 would be nearly reversed in 2006 with a $53 million cut. National Institutes of Health spending would be cut 2.1 percent in 2006, to $28 billion, after a $764 million increase for 2005 that brought the NIH budget to $28.6 billion.

They are proposing to increase 2005 funding for all these agencies so that during the campaign they can shout "We are committed to these programs! Look, we increased funding." They get reelected, and then they slash the programs they touted during the campaign.

Ah, politics.

Mwa Ha Ha!

My desk is clean for the first time since before finals.

And I reorganized my bookshelves.

And I (mostly) cleaned out my laundry/storage room.

Now I just have about 12 days to stew until I get to start work.

Back of the Envelope?

In this Slate article, Steven Landsburg argues the premise that it might be more economically advantageous to execute people who write computer worms than to execute murderers.

He calculates the value of a human life based on the sort of actuarial calculations that make the insurance industry widely despised. Then he evaluates the relative societal economic impact of executing murderers and hackers.

My beef? He bases the value of executing murderers on a "consensus" figure that estimates that executing a murderer deters ten murders. The problem is, it has not, to my knowledge, been empirically shown that the death penalty deters murders at all.

Not at all:

According to the FBI's Preliminary Uniform Crime Report for 2002, the murder rate in the South increased by 2.1% while the murder rate in the Northeast decreased by almost 5%. The South accounts for 82% of all executions since 1976; the Northeast accounts for less than 1%. Read the report. (FBI Preliminary Uniform Crime Report 2002, June 16, 2003).

Landsburg then inadequately attempts to answer those opposed to the death penalty:

Some might argue that capital punishment has moral costs and benefits beyond its practical consequences in terms of lives lost and lives saved. Those who make such arguments will want to modify a lot of the calculations in this column. As for myself, I hold that the government's job is to improve our lives, not to impose its morality. In this, I take my stand with the president of the United States, who, in a 2000 debate against Al Gore, said quite explicitly that nothing other than deterrence can justify the death penalty.

(emphasis added).

If Mr. Landburg were to accept that capital punishment deters no one, do you think he would change his stance?

Law Review 4: Fatigue

I managed to finish my law review note and get it in ahead of today's deadline. Could it have been better? Sure, if I had another week. I think it is pretty good anyway.

The note case, now that the deadline has passed, was a New York case where the plaintiffs tried to sue gun manufacturers for negligent marketing of their handguns. There were a couple of interesting legal theories at play, including market share liability for the gun companies.

I surprised myself a little bit by coming down on the side of the gun companies, with whom I definitely do not sympathize. After reviewing the cases, I felt the connection between victims of gun crime and the manufacturers of guns was too attenuated. What's more, market share liability divides the plaintiff's damages among defendants by that defendant's market share, but in this case, it wasn't clear that all the defendants were equally negligent, or even that all the defendants were at least somewhat negligent.

I ended up making a "lack of judicial capacity" argument after I synthesized the material. The underlying problem is that gun manufacturers dump guns into low-regulation markets in the southeast, knowing that those excess guns will make their way to more regulated states via gun shows and illegal sales. Sounds like a problem for a uniform federal regulation, if I ever heard one.

Congressional Yahoos

Rep. Lewis (KY) along with numerous co-sponsors, has proposed a bill giving Congress the power to overrule judgments of the U.S. Supreme Court if those judgments declare an Act of Congress unconstitutional. You're fighting this fight about 200 years too late, Mr. Lewis.

Maybe we should open up Congress for public paintball games. (links via Fark)

Afghanistan Revelations 2

Several Afghan witnesses have come forward to identify the unit that tortured people in Abu Ghraib as the unit that tortured people at the Bagram Collection Point in Afghanistan. (Link via NY Times).

"Two men arrested with one of the prisoners who died in the Bagram Detention Center that month said in southeastern Afghanistan on Sunday that they were tortured and sexually humiliated by their American jailers; they said they were held in isolation cells, black hoods were placed over their heads, and their hands at times were chained to the ceiling."

I know it is not currently in vogue to talk about hearts and minds. I know we are supposed to be mercilessly crushing the terrorists and not worrying what the world thinks about us. But does anyone really believe that torturing a 22 year old Afghan taxi driver reduces terrorism in some way?

Law Review 3: Late night crisis!

I have this problem. You see, you have to cite various Restatements of the common law in law review articles. Our trusty bluebook tells us that we must cite the Restatement in a footnote using large and small capitals.

I, however, am still using Word 97, cheapo that I am. I can't figure out how to make large and small capitals. I am not certain that this version can make large and small capitals. If not, I will have to finish all the other particulars of the note, and then take it to a computer lab to finish it on a more updated version.

Igh.

Law Review 2

Boy, am I glad I did well in Torts. Thank you Professor Barkan.

A Kindred Spirit, Found by Accident

Uppity Babe posts a list of 20 things you have to believe to be a Bush supporter. It's pretty funny.

She just happened to be on the "ten most recently updated blogs" list, which I look at periodically for variety. So maybe my accidental discovery was by design. I'll be checking back periodically to see if she has more stuff like this, though.

Update: Uppity Babe commented on the post, saying that it was an e-mail forward. It doesn't surprise me and I still like her anyway for posting it.

Law Review

I expect that my posting volume will fall off for about a week, as the pressure to finish my law review submission is really starting to mount. Still, there is a good chance that I will need to get away from it for a few minutes once in awhile.

At any rate, I want to apologize to both of my loyal readers.

Gay Marriage = Terrorism?

African American ministers rallied in Tampa Bay, Florida, denouncing what they called the "moralistic terrorism of today's society." (Link via How Appealing).

The minister, Mr. Wiggins, went on to argue, "God is not against my being black, because this is how he made me."

I would think that Mr. Wiggins would be sensitive to the fact that religious arguments were brought to bear against African Americans in the Civil Rights movement (Sons of Ham, and all that). Without biblical support, his argument about the differences between the civil rights struggles for blacks versus the civil rights struggles for gays falls apart. Of course, had the people who fought for civil rights for African Americans accepted the curse of Ham, we would still be drinking from different water fountains.

God made gay people too, Mr. Wiggins.

Fremont, Washington's "Waiting for the Interurban" (Seattle Post-Intelligencer). 

The Boys Next Door

I've been having problems with the boys next door. My family lives in a townhouse which is part of a block of about 6, and the two townhouses next to ours also have children, all boys (5 or 6 total).

These boys range from about 9-12 in age. They really enjoy messing around with my 7 year old girl, taking away her bike or whatever various toys she has. I went outside once today about 3:15 to ask one of them in particular to "play nice." Then I just had to go out there again, and take one of her toys from him and tell him, "we are going to have a problem if you don't leave her alone." I was very calm but firm.

Next I go to the boy's parents. Am I old fashioned to think that parents should teach their children to respect others, but particularly to teach their young boys to respect young ladies? It seems that with all the problems I always read about in the campus newspapers, teaching young men to respect young women is one of the most important things a parent can do.

Bachelor Party

This Friday, we are going to State Street for a bachelor party for yet another of my friends who is soon to marry. Our bachelor parties are all G-rated, since many of us are married and have strong feelings about traditional bachelor party activities.

Nevertheless, I am very excited about getting a chance to socialize with my friends, share drinks and laughs, and to talk as men do. Perhaps I will even sound my barbaric YAWP, if the Guiness flows freely.

UPDATE: It occurs to me that Whitman might have been upset at my drinking an import. Sorry, Walt.

Krugman editorial on Iraq

Paul Krugman editorializes on President Bush's recent supplementary budget request for $25B to aid in the Iraq war. After summarizing the history of past budget requests, he says:

Now Mr. Bush is back for more. Given this history, one might have expected him to show some contrition — to promise to change his ways and to offer at least a pretense that Congress would henceforth have some say in how money was spent.

I would think, for a prolific critic of this administration, Mr. Krugman would not have expected anything like contrition from a President who recently was unable to give an answer when asked what his biggest mistake in office was. You can't be contrite if you've been right every time.

He concludes that sooner or later, Congress will "disown" the debts of the Iraq conflict, and the U.S. will face defeat and a huge blow to its international prestige.

This is so wrongheaded it hurts me, as a sincere admirer of Mr. Krugman. To hell with our prestige and our political situation. We removed a brutal dictator from power and destroyed his power base, and now the best outcome in Mr. Krugman's mind is that the U.S. would withdraw, leaving a power vacuum and utter chaos in Iraq? Yes, the situation is a mess, but it is a mess at least partly of our own making, and we are nothing but a bunch of hypocrites if we let our politics and our budget pull us out of Iraq, only to see it dissolve into internecine warfare, chaos, and possibly religious and ethnic cleansing on a scale that has prompted us to intervene in other regions in the past.

Iraq is a mess, and quite possibly an intractable problem. It's been said before, and by people smarter than I am, that we need to get the U.N. more involved and to change the character of the troop presence in Iraq from occupation to peacekeeping. We need to really focus our resources and the resources of the world community on rebuilding the critical infrastructure that would make life more tolerable, like clean water, electricity, telephones, schools, and hospitals, just to name a few. At the farthest extreme, the international community might have to enforce a partition of Iraq.

"Grab whom you must. Do what you want."

A secret directive from Secretary Rumsfeld to "get tough" on terrorists? It's not clear yet, but Sy Hersh is certainly a credible voice, breaking both the My Lai massacre and, more recently, Paul Wolfowitz's conflict of interest between his DOD duties and his membership on the board of Trireme partners, an investment company specializing in defense stocks.

Spring (ACHOO) Cleaning

My wife and I spent the whole weekend cleaning out our garage, our laundry room, and our basement. I'm allergic to dust, so now I can't talk. I'm going to have to tip the garbage men tomorrow.

Also, I did a top-to-bottom on the bathrooms. When it comes to bathrooms, I am a sanitation fascist.

Check out Jamie Cullum

Awhile ago, a friend of mine said "this is the kind of music I would make if I were a musician." That's how I feel after I've spent the last few hours listening to Jamie Cullum (via Real Rhapsody). Check him out if you have the chance.

It's the kind of music I would make if I were a musician.

Disturbing NY Times Story

Apparently the Justice Department and the CIA have adopted a series of rules to help the CIA toe the line between "high pressure" interrogation and torture. High level detainees are taken to unknown international locations and subjected to interrogation. I have a couple concerns:

1. The article said "[I]t is not clear whether the White House approved the specific rules for the interrogations." The next sentence is "The White House... declined to comment on the matter."

I think it is pretty clear that the White House approved the rules, at least implicitly, since they failed to condemn them when asked for comment.

2. These interrogation facilities are sited in other countries, and the article says that President Bush told the CIA that "he did not want to know where they were."

I believe there may be a Constitutional problem with the President delegating total responsibility for foreign relations to a subordinate department. Granted, he can negotiate treaties with 2/3 consent of the Senate. Granted, there is ample precedent justifying the use of so-called "executive agreements" with foreign powers (treaties in a tutu). I'm not sure about delegating the authority to create something like an executive agreement; I am concerned about any sort of accountability whatever. Certainly, career CIA officials are not politically accountable. With the degree of secrecy they operate under, criminal and civil accountability may also be impossible.

Of course, ahem, I am just a law student, so, grain of salt.

3. This is a more basic moral point. Do we, fighting a culture war of sorts, really want to operate under a set of rules that toes the line with torture? Where are the warning flags when the former intelligence official says, "[t]here was a debate after 9/11 about how to make people disappear"? Do we want our government to be able to make people disappear in the name of national security?

Mr. Berg is lucky his wife doesn't work for the CIA

Nick Berg's father blamed Bush and Rumsfeld for the death of his son at the hands of Islamic militants. I thought he was being a bit dramatic, until I read this. Now I am not sure that a little drama is not understandable. You be the judge.

"Berg's body arrived Wednesday at Dover Air Force Base in Delaware. His parents had requested permission to be at the base when the coffin arrived, but that request was denied. Sen. Arlen Specter, R-Pennsylvania, said Thursday that refusal came from the Department of Defense."

(Both links via Drudge.)

A Letter to Ralph Nader

Dear Mr. Nader,

I recently read your letter to President Bush. I have to say, it was spot on.


I also agree with you, more than I agree with John Kerry, on many of the issues. But I have to say, I think your campaign is irresponsible. It simply is not a tenable position that your capturing approximately 4% of the vote in 2000 was not a deciding factor in an election decided by less than 1% of the vote.

Yes, Al Gore didn't run a perfect campaign. John Kerry isn't running a perfect campaign. But your campaign argues that what is really needed is a "two-front" campaign against Bush. I would wholeheartedly agree if your strategy was to give speeches, try to move the Democrats left, or to somehow affect Democratic policy thinking. Unfortunately, it seems that you mean that the best way to defeat Bush is to divide the roughly 50% of the voters that would vote for a Democratic or Progressive candidate between you and Kerry, which is only a recipe for defeat.

I urge you, a man who has devoted his life to progressive activism, not to help reelect a President whose administration has been far more destructive to our environment, to women's rights, to free speech, and to our international standing than anyone who argued that Democrats and Republicans are nearly indistinguishable on many issues could have imagined. This time around, it doesn't take much imagination.

My poor baby girl

I feel for my youngest daughter Winter, who is 10 months old. For the last three weeks, I have done little but study for exams, and now I am starting this Law Review packet which will tie me up for the next 10 or so days. Meanwhile, her older brother and sister get to roam the house and the yard (such as it is), playing together. It just breaks my heart when I think that this little girl has been so patient with me while I go through this high pressure moment in my life.

(Winter is pictured below).

Winter. 

Am I a Sucker?

My free trial to Real One Rhapsody just ended, and much to my surprise, I actually subscribed to keep the tunes coming.

Brief plug: this thing is awesome. You can stream over 600,000 songs at will for a monthly charge of $9.95 (with an additional charge to burn them to a CD). My only complaint is that some artists have chosen to withhold songs that are currently pretty big (like "Yeah" Usher, feat. Lil' Jon and Ludacris). I guess maybe they hope by withholding one big song from the CD, it will force people to still go buy their CD. But with 600,000 other choices, I can pretty adequately ignore any one song I might want to play once or twice.

A New Message for John Kerry

Some suggestions here.

Excerpts:
"John Kerry: A man who has chaired a lot of committees."
"Kerry: A voice of reason who's killed, like, 20 dudes."

(The Onion: America's Finest News Source)

Doyle's Compacts Shredded

"The state Supreme Court on Thursday struck down key portions of a gaming compact that allowed an American Indian tribe to run Las Vegas-style games such as craps and roulette."

You can get the full story via Newsday.com, right here.

I'm torn between partisan loyalty and a dislike of institutionalized gambling, to be honest.

Interesting Article on Prison Guard Psychology

Posted on Slate Magazine:

"The emerging spin is that the [1971] Stanford [Prison] experiment explains, based on science rather than assumption, what happened at Abu Ghraib. But science, particularly social science, isn't free of assumptions."

Read it, I command you.

Abolish the Wisconsin State Constitution!

Let's call a State Constitutional Convention and toss the whole thing out.

Why? Because the only realistic way that this country will ever get rid of its two-party, winner-take-all federal election system is for the states to redefine the way that is done on a state by state basis. Article One, Section 4 of the U.S. Constitution provides that the States shall decide the "Times, Places, and Manner of holding Elections for Senators and Representatives..."*

We could reorganize the state government in the following ways:

1. The state legislative houses will be changed to allow proportional representation. A political party receiving 5% of the popular vote would receive 5% of the votes in the legislative bodies. The legislative bodies would then choose an executive by simple majority vote. In essence, the state government would be a parliamentary system.

2. Federal elections for the House of Representatives would continue to be held biannually, with seats being awarded proportionally to the participating parties that receive a certain minimum percentage of the vote. Wisconsin, with its eight representatives, would probably need to require something like 12.5% of the vote to get a seat.

3. Federal elections for "winner take all" offices (i.e. President and Senate) would implement so-called "instant runoff" voting. Rather than selecting a single candidate, voters would rank candidates in order of preference. If a particular voter's first choice is not one of the top two candidates after the first round of votes are tabulated, his vote is reassigned to the next candidate by rank on his ballot. The voters benefit by not having to make tactical calculations when voting for elected officials, and candidates from non-duopoly parties could run strong campaigns without the fear that doing so would result in the election of their own ideological opposite.

Anyway, it's just an idea I am kicking around. If you have thoughts, e-mail me at mpwhite@wisc.edu.

You can see the current Wisconsin Constitution here. (Requires Adobe Acrobat Reader).

*Of course, the same article provides that Congress may overrule state legislative Time, Place, and Manner decisions, and the Supremacy Clause means that any such statutory enactments would trump state Constitutional law. It could be a problem.

UPDATE: I just read a FindLaw article talking about a recent US Supreme Court Gerrymandering case. Proportional representation would fix that, too!

Criminal Procedure Exam 2

I had my Criminal Procedure Exam today, the final exam of the semester. It was a three and a half hour exam, and I did it in about two. Either I really nailed it, or I missed some major issues and will now have to alert my family that I am a failure.

Now I have ten days to write a Law Review case note if I want to be considered. After that, I will have four or five blessed days before I begin my summer internship.

Afghanistan Revelations

It's going to be hard to keep making the case that the systematic abuse of prisoners in Iraq is the action of a few bad apples, if an investigation reveals similar prisoner abuses in Afghanistan.

What is the conservative press saying we should do? Check out this story from opinionjournal.com.

"The war's domestic opponents are too obviously eager to expand the misdeeds of a few into a general repudiation of the war and all involved in it. For example, we are now reading that Geneva Convention status should be accorded to illegal combatants such as those at Guantanamo."

The implication, of course, is that anyone we designate an "illegal combatant" has no rights at all. After all, U.S. personnel (rightly) are not subject to the jurisdiction of any foreign or international court. Since the designation of enemy combatant will invariably filter down through the command structure, and since there is no jurisdiction for any court anywhere to review the designation, the designation can effectively be used to shield U.S. personnel from any accountability. Obviously, the politicians who run the military are subject to political accountability, but is that really enough for an adminstration that has still managed, three years later, not to reveal who Mr. Cheney consulted with when formulating an energy plan? I think not.

Object permanence #1

Instead of talking about important things, like the President's 9/11 testimony or the administration's reckless economic management, the mainstream media allowed itself to be distracted by a discussion of whether the ribbons John Kerry threw were his own.

See, for example, this.

When I was an undergraduate, my journalism professor talked about the agenda-setting power of the media. The media get to use our airwaves for free, and in the last twenty years they seem to have gotten their public service ethic mixed up in partisanship, both to the right and to the left. If the media allow themselves to be distracted by phony controversies, the rest of the country gets taken along for the ride.

This is the object permanence problem.

Watch This Kid

A Michigan student, mockingly told to tell the ACLU about his free speech problem, did just that.

"When Gies contended that he had a First Amendment right to express himself, one administrator informed him that the Constitution does not apply to Bay City students."

Whoops. Looks like it was the school that got a civics lesson.

Be Sure to Read the Fine Print!

From a recent credit card offer I received:

"The initial minimum credit limit will be $250 and the following fees will be billed to your first statement: Annual Fee of $48.00, Program Fee of $95.00, Account Set-Up Fee of $29.00, monthly Participation Fee of $6.00, and an Additional Card Fee of $20.00 (if applicable). If you are assigned the minimum credit limit of $250 your initial available credit will be $72 ($52 if you choose the additional card option)."

In other words, "We are going to charge you $178 (or $198) to give you $72 of credit."

What's worse? They charge $11 for each payment made by autodraft, $7 to pay by phone or Internet, $3.95 to get Internet access to your account, and $25 if they raise your credit limit.

Criminal Procedure Exam

I am finishing my first year of Law School, and tomorrow at 8:30 I have my final exam, in Criminal Procedure. For those of you who don't know about law school exams, they are probably unlike anything you have ever experienced. They are almost universally open-book exams, but you don't really have time to look at your notes anyway.

The exams usually take from 3 to 4 hours, and consist of five or less questions, each of which is an elaborate hypothetical fact situation. The skills involved in taking law exams are different from other types of exams. First, you have to identify the legal doctrine that is in play. Second, you look back at the extensive facts and decide which are relevant. Third, you have to resolve, in your mind, how the rules of law that you have in your head are applied to the facts on your page. Then you generally prioritize all the issues in descending order of importance, dealing with each in succession.

You can see a sample law exam question here.

Welcome to Object Permanence!

Hello, hello!

I have been reading Blogs lately, and I thought I would give this a try. It's got to be better than studying for my exams.

My name is Matt White, and I am a law student at the University of Wisconsin, Madison. I am a husband and a father of three children. I'm not particularly computer literate, although that feeling may be due to the fact that my brother-in-law and several of my good friends are professional computer programmers.

I graduated from UW-Madison with a B.A. in English. I love modern American literature, particularly early 20th century poetry and late 20th century novels.

Good News from the U.S. Supreme Court

Friends,

I am moved nearly to tears this morning by the Court's decisions in Hamdi and Rasul (The Guantanamo Detainee case). I have thought for a number of weeks that the outcome of these cases was, to a certain extent, obvious, although in my mind Hamdi (and Padilla, not yet decided), are much more obvious than Rasul. Nevertheless, I am very relieved and proud of the vibrancy of our system when I see how it stands up to a Constitutional challenge that, in my opinion, threatened to undercut the separation of powers. That separation is not so fragile as I had feared.

Perhaps I am being too dramatic.

The issue in Rasul was whether U.S. courts have jurisdiction to hear a petition for habeas corpus when the petitioner is a foreign national in military custody who have no presence "in any territory over which the United States is sovereign." The lower courts had dismissed the claims of the Gitmo detainees, citing a case called Eisentrager, which was a World War II-era case denying a U.S. court remedy to German citizens captured by U.S. forces in China. Guantanamo Bay is under the exclusive control of the U.S. by treaty, but the U.S. does not have "ultimate sovereignty" since the base is leased, not owned. This makes a neat little loophole, if we accept the administration's reasoning: U.S. courts don't have jurisdiction under Eisentrager because the U.S. is not the "ultimate sovereign," but neither does any other power, since the detainees are under the "exclusive control" of the U.S. military.

To me, the interesting question of Rasul is extra-judicial: to what extent was the majority influenced by revelations of torture at Abu Ghraib? I can easily see one or more justices mistrusting the SG's protestations of good executive intentions in light of that bit of news.

Hamdi was an American citizen captured in Afghanistan and, until recently, denied even access to counsel, much less a remedy in the court. This case seems much more obvious than Rasul, in that Hamdi is an American citizen and he is being held in a navy brig in the territorial U.S. (where the U.S. is the "ultimate sovereign"). Yes, the court said that he could be held without charges or trial, but they did say he should have the right to contest the factual basis for the determination that he is an enemy combatant before a neutral decisionmaker.

The text of Rasul is here. The text of Hamdi is here. (Links courtesy of SCOTUSBlog).