A Stitch in Haste

If my greedy Swiss bank employer wants to offer me a free flu shot, on the theory that absenteeism is bad for business, then good for them, and good for me. Private parties engaging in private transactions for mutual private benefit — neat-o!

But can someone please explain to me why the City of New York has any business providing free taxpayer-subsidized flu shots?

If you want a flu shot, then why not pay for it yourself, the same as you should pay for your own aspirin or NyQuil? The externalities of mass immunization are not so great in the case of the flu (note: not the avian flu) as to make it a public good in need of taxpayer underwriting.

And even if it did, then why should free taxpayer-subsidized flu shots be provided at the local level? Shouldn't it be a national, or at least a state program? The City should stick to providing city services. Warm-fuzzy-feeling socialized preventative medicine doesn't qualify.

Incidentally, you don't need to be poor to partake of the free taxpayer-subsidized shots, so even that pseudo-justification doesn't exist. You don't even need to be a city resident — just show up and stay flu-free, courtesy of my city income taxes, city sales taxes, city property taxes, etc.

And that makes me ill...

Some bloggers are expressing concern over two decisions written by Supreme Court nominee Samuel Alito, each of which concerns litigation involving the status of gay or gay-perceived schoolchildren.

I've read both of the decisions, and neither really involves "gay rights" directly. More importantly, neither is troubling from a libertarian perspective.

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Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) is not so much a gay rights case as a First Amendment case. In short, a Pennsylvania school district passed a combination "no harassment" and "hate speech" policy that essentially forbade any and all conduct, including mere verbal expression of disapproval (e.g., "homosexuality is wrong"), by any student that offended any other student. Hardly an uncontroversial proposition.

Christian parents in the school district sued, claiming (correctly) that the anti-harassment code would prevent their children from expressing their view that homosexuality is immoral. The trial court judge sided with the school, on the notion that there is a well-settled "harassment exception" to the First Amendment. There is, in fact, no such thing.

The unanimous Third Circuit panel, in a decision written by Judge Alito, merely reiterated the patent inaccuracy of the lower court's First Amendment analysis and reinstated the distinction between physical harassment, which of course can be prohibited and punished in a school setting (or anywhere else, for that matter), and verbal conduct — which, like it or not, is generally protected speech, even in a school setting.

The decision did not decree that there is a "right to tease, taunt or bully" and did not disturb the "fighting words" exception to the First Amendment. It merely reiterated the now well-settled doctrine that school speech codes are constitutionally suspect, that there is a difference between mere verbal expression and physical violence (or between mere verbal expression and threats), and that schoolchildren do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (see Tinker v. Des Moines, 393 U.S. 503 (1969)).

A judge taking an expansive, pro-liberty view of the First Amendment — why exactly am I supposed to be upset?

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Shore Regional High School Board v. P.S., 381 F.3d 194 (3d Cir. 2004), is even more of a yawner. A male middle-school student in Oceanport, New Jersey, was relentlessly and viciously teased for, to put it mildly, "perceived effeminacy." The bullying was so intense that it seriously interfered with the boy's education and psychological development.

When it came time for the boy to enter high school, his parents applied to a nearby private high school, which admitted the boy. The parents then sued the public school district to pay his tuition under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. §§1400-1487.

The case went to an Administrative Law Judge ("ALJ"), who heard various expert witnesses from each side and ruled in favor of the parents. The school district then appealed the decision to a regular federal district court judge, who overturned the ALJ based solely on a different weighing of the expert witnesses' testimonies.

This is (apparently) a rather flagrant violation of administrative law rules, and Justice Alito's Circuit Court opinion does nothing more than reinstate the ALJ's decision based solely on those rules. The underlying substantive law regarding the right to an education free of anti-gay harrassment was in no way part of Alito's decision.

In other words, this was a boring old administrative law case that happened to involve an unfortunate young victim of extreme anti-gay bigotry. That is not the same as a "gay rights case."

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Summaries of Judge Alito's other noteworthy cases, with links, are at Nomination Blog.

If someone can give me a reason to oppose the nomination of Third Circuit Court of Appeals Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O'Connor, then I'd like to hear it. Because, so far, I got nothing.

While I may disagree with his dissent in Planned Parenthood v. Casey, I can't get too indignant about believing that it might not be a bad idea for a wife to tell her husband that she is planning to get an abortion. Again, not my view, but not an unreasonable view.

I see nothing from him on gay rights. Since his Circuit includes New Jersey, and the Third Circuit must therefore often decide questions based on New Jersey state law, I might be interested, were I a senator on the Judiciary Committee, whether he had any thoughts regarding Boy Scouts v. Dale, 530 U.S. 640 (2000), in which the New Jersey Supreme Court and the United States Supreme Court disagreed about whether the Boy Scouts could discriminate against gays while enjoying the use of public facilities. Dale, remember, is a key precedent in the upcoming Solomon Amendment / "Don't Ask - Don't Tell" case, Rumsfeld v. FAIR.

He seemed to like "rational basis with bite" Commerce Clause jurisprudence, voting to extend U.S. v. Lopez, 514 U. S. 549 (1995), back in 1996 — see his dissent in U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996):

Was United States v. Lopez ... a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

I love it, but whether that's at all relevant after the recent medical marijuana case, Gonzales v. Raich, No. 03-1454 (2005), is unclear.

In any event, unlike Harriet Miers, Judge Alito is indisputably qualified for the Supreme Court, whether one agrees with his jurisprudence or not. Barring any smoking guns, he deserves to be confirmed. For once the president got it right.

I find it hilarious that some radical Christians, in the U.S. and throughout the world, are growing increasingly disturbed about the impact that Halloween is having on young, impressionable, pre-Christian minds.

Just like how Harry Potter is going to turn children into Satanists (or, worse, Wiccans).

The truth is that Halloween is a patently Christian celebration (although, like many Christian holidays, it happens to coincide with pagan harvest celebrations).

In fact, Halloween was once so important a part of Christian ritual that it even played an indirect role in American politics.

The only reason we have Halloween ("All Hallows Eve") is because of All Saints Day ("All Hallows Day"), a Roman Catholic holiday that falls on November 1st. Like Fat Tuesday (and Mardi Gras) before Lent, Halloween began as a preparatory celebration in anticipation of All Saints Day.

Today, All Saints Day is not a major religious holiday and not at all a secular event the way Christmas and Easter are. But such was not the case in the early days of the Republic. In fact, so important was All Saints Day that Congress intentionally designated Election Day to be "the Tuesday after the first Monday in November" rather than simply "the first Tuesday in November." They wanted to ensure that Election Day would never fall on All Saints Day, which would keep people from the polls. (They also feared that merchants would stay home on November 1st to perform their end-of-month bookkeeping.)

Fast-forward to the modern era. We now witness yet another classic example of fundamentalist Christian legerdemain: A Christian-inspired bit of harmless fun is suddenly neither Christian nor harmless. Just like how the United States is a "Christian nation," except when Jews are within earshot, in which case we magically transform into a "Judeo-Christian" nation (or whatever). Anti-gay discrimination is "only about marriage" — except when it isn't. And so on.

Now that's spooky.

More on the history of Halloween here and of All Saints Day here. More on the history of Election Day here.

Have fun.

The Supreme Court of Alaska has unanimously ruled that the state must grant same-sex domestic partners of public employees the same employment benefits that it provides to married heterosexual spouses of public employees. The decision is available here; the ACLU's press release is available here.

Some highlights of the decision:

--While it may be reasonable to deny partner benefits to unmarried heterosexual couples (since they have the option of getting married), it is not automatically reasonable to also deny those benefits to unmarried same-sex couples, since gays are expressly forbidden to marry under Alaska's bigot amendment (Section 25 of the state Declaration of Rights).

--The denial of benefits fails even the lowest form of scrutiny, commonly referred to as "rational basis review." So on the one hand, gays maintain their perfect track record of not being deemed a "suspect class" entitled to heightened scrutiny as a matter of constitutional law. But on the other hand, the increasingly potent touchstone of Romer v. Evans, 517 U.S. 620 (1996) (namely that mere animus toward gays is not a "legitimate government interest" and does not withstand constitutional scrutiny) has once again been the basis for striking down a discriminatory policy. As I've maintained for some time: as inspiring as Lawrence v. Texas, 539 U.S. 558 (2003), was for gays, full marriage equality is not going to come from that case, but rather from the increasingly precendential Romer and its "this a state may not do" line in the sand regarding bigotry for the sake of bigotry.

--The Alaska Supreme Court was applying a provision (two if you include Alaska's bigot amendment) of that state's constitution. The case is therefore not subject to appeal to the United States Supreme Court. (The Alaska court refused, however, to engage in "judicial activism" and left it to the legislature to decide how best to end the state's discriminatory policy, so there are still unanswered questions as to what happens next.)

--Be sure to watch the response of Alaska's bigots after this decision. Remember, the Alaska Supreme Court did not disturb Alaska's ban on same-sex marriage in any way. Those who claim that "it's only about marriage" have nothing to complain about — "traditional" marriage is safe (for now) in Alaska. So if they disapprove of the decision, it must be because, when they say "it's only about marriage," they are lying.

Congratulations to Alaska's same-sex couples and the Alaska Civil Liberties Union for this important victory.

The case is Alaska CLU v. State of Alaska, No. 5950 (October 28, 2005).

UPDATE: An Alaska Republican legislator (who is, of course, "not a bigot") intends to introduce (yet another) state constitutional amendment overturning the Alaska Supreme Court decision. Because (again), when they say "it's only about marriage," they lie.

M. Night Shyamalan, maker of scary movies ("scary" in the sense that some people actually think they're good -- that terrifies me), posits another fear-inducing plotline: the end of the "moviegoing experience" --

"When I sit down next to you in a movie theater, we get to share each other's point of view. We become part of a collective soul. That's the magic in the movies."

Gimme a break. That's not a movie theater -- it's a kibbutz.

In any event, the setting in which Shyamalan's plot unfolds is the debate over whether to simultaneously release movies in theaters and on DVD, a proposal that some moviemakers and studio executives are floating in order to improve the industry's bottom line.

Whatever. If movie theater chains (which almost rival the airlines in their ability to repeatedly go bankrupt) want to get people back into their theaters, it's really quite simple:

--Stop pricing tickets on the elastic portion of the demand curve.

--Ditto for concessions.

--Have adult-only showings (not adult movies, but adult showings) for those of us who neither have nor like children.

--Bring back ushers to expel cell phone users who are "ringer-off challenged."

--Oh, and make some good movies for a change.

It never ceases to amaze me how willfully oblivious to economics some artists can be. The reason people are abandoning the "moviegoing experience" is because the moviegoing experience sucks. Shyamalan should worry more about improving that and a little less about lamenting the loss of our "collective soul."

I'll take my 42" plasma TV, surround sound system and Netflix subscription over Shyamalan's overpriced, child-infested, cell-phone polluted "moviegoing experience" any day. Even if it costs me my "collective soul."

The State of Louisiana wants the federal government to pay for the rebuilding of state facilities:

Louisiana Gov. Kathleen Babineaux Blanco (D) is asking federal officials to pay the vast majority of the $2.3 billion in damage to state facilities wrought by hurricanes Katrina and Rita, including at least $125 million to restore the state-owned Louisiana Superdome in New Orleans.
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While many people think of FEMA as an agency that mainly helps individuals, historically its greatest single disaster expense is to reimburse state and local governments for their losses and emergency costs.

Color me confused, but is there any reason why state and local governments can't be expected to buy their own property and casualty insurance for their own buildings, roads, parks, playgrounds, etc.?

It's debatable enough whether "poor homeowners" (can there even be such a thing?) shouldn't be expected to pay their own insurance premiums just as we expect them to pay their own heating and electric bills. But the City of New Orleans? The State of Louisiana? Just how "poor" can a government get?

The concept of FEMA as "forced charity" or "forced insurance" might -- might -- have some paternalistic quasi-justification presupposed by the premise that people are fundamentally stupid (a premise I and most libertarians reject). But an even more basic premise is that our elected leaders are not fundamentally stupid and should be able to run their jurisdictions appropriately.

Somewhere there's a contradiction here. I know where I think it is. How about you?

Anyone remember the Saturday Night Live commerical spoof, I think a parody of Citiblob, in which an employee describes the bank's highly competitive changemaking services? It went something like this:

We're so flexible that if the customer gives me a dollar, then not only can I give him four quarters, but also ten dimes or even one hundred pennies.

How do we make money doing this? Simple: Volume!

Now why do people understand the humor of that sketch but not this simple arithmetic:

[ExxonMobil] announced profits of $9.9 billion on sales of $101 billion. For those who cannot divide, that is a profit margin of 9.9% of sales. Since when is a profit margin at a cyclical peak of 9.9% considered "staggering"?

Microsoft makes 30%, in good times and bad, with a fraction of the investment or risk [ExxonMobil] takes. ... Procter [&] Gamble makes a margin of nearly 13% of sales selling toothpaste and detergent but we are going to begrudge oil companies 7.6% on average and 10% in their best quarters?

Exactly. "Big" is not the same as "excessive." Stated differently, "big divided by big" can equal "small."

Go read Coyote Blog's whole post. It's good.

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Meanwhile, En Passant asks a question about profits that are not too positive, but far too negative:

Song is almost as good as JetBlue, so Delta is phasing it out? The only legacy carrier to get it right is abandoning its venture.

It seems to me that perpetually losing money and "getting it right" are mutually exclusive. Go figure.

The Wall Street Journal ($):

According to the indictment, Mr. Libby lied to FBI agents twice in 2003 and then committed perjury in his grand jury testimony in March 2004. Intentionally disclosing the identity of an undercover intelligence agent can be a crime under a 1982 law. Significantly, Mr. Fitzgerald didn't allege any violation of that law but instead chose to focus on assertions Mr. Libby wasn't forthcoming with investigators.

As the saying goes: "The cover-up is always worse than the original act."

And let's remember that an indictment is not a conviction. Even lawyers seem to be forgetting that. The Schadenfreude that is erupting in some precincts is not only premature but unseemly. That our executive branch is wounded, embarrassed and potentially scarred for years to come is something to regret and repair, not celebrate.

Roche, the maker (i.e., the inventor and owner) of Tamiflu, the only prescription drug even remotely effective against the flu (including avian flu) will no longer ship the drug to the United States:

Roche said it had halted deliveries of the drug to pharmacists in the United States and Canada until the start of the flu season over concerns that consumers could deplete stocks by hoarding the drug at home.

"Our priority is to ensure that Tamiflu is available for seasonal use and to fulfil government orders," she added.

First of all, one wonders whether there might be just a hint of an ulterior motive in Roche's actions, namely the desire to thumb its nose (or fire a warning shot) at grandstanding American hack politicians who are trying to bully the company around. Other countries have already announced, without apology, their intention to steal the Tamiflu patent. Maybe Roche is flexing what muscle it has left on the world stage by reminding nations that, yes indeed, Tamiflu is both their intellectual and their physical property.

On the other hand, how sad that Roche seems to think there's something wrong with private citizens "hoarding" flu medicine, but nothing whatsoever wrong with governments doing the exact same thing. I can't keep two doses of Tamiflu in my medicine cabinet, but the U.K. is entitled to stockpile two doses of vaccine for every person in the country? That makes no sense.

What exactly is "hoarding" anyway? Am I, at this very moment "hoarding" aspirin, or toothpaste, or instant coffee, simply because I own more than I have an immediate and urgent need of? I guess "hoarding" is the new "price gouging."

We saw last year how the U.S. government completely disrupted the flu vaccine supply, finally imposing "voluntary" rationing only to end up with an unused surplus. Do we really need to reinvent that wheel with Tamiflu or this year's flu vaccine?

Roche is the most "Atlas Shrugged" company since Microsoft and Wal-Mart. Here is a firm with a product that has urgent value and no substitutes. The response of the world has not been gratitude, but rather condemnation and thievery. Hopefully Roche will maintain the moral high ground and remain unapologetic in their control of Tamiflu. If they don't, then the chilling effect on pharmaceutical research could be staggering.

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Meanwhile, the Senate has approved spending $8 billion to stockpile flu drugs in anticipation of an avian flu outbreak in the U.S.

I ask again -- why is it "stockpiling" when the federal government buys millions of doses of Tamiflu in advance, but "hoarding" when I try to buy two?

The judge in the recent lawsuit against Disney concerning its $140 million severance package to its short-tenured president, Michael Ovitz, has warned that government may start regulating "out-of-control" executive pay:

"If neither the courts nor the markets are able to restrain executive compensation, and if you the decision-makers fail ... the result will be imposition of regulatory controls," said [Delaware Chancery Court Judge William] Chandler, whose court handles many important business cases.
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Former U.S. Securities and Exchange Commission Chairman William Donaldson often called for restraint in executive pay before he stepped down this summer. Public Company Accounting Oversight Board Chairman William McDonough does so, as well.

This is, of course, utter nonsense.

Some hasty stitches about executive pay:

--At the core of the Disney litigation was something called the "business judgment rule," which basically says that judges are not equipped to second-guess corporate decision makers. There is a strong presumption that business leaders actually know their businesses better than judges do and should not be subject to judicial review unless there is evidence of a conflict of interest or other misconduct (but merely "being wrong" is not the same as "misconduct"). Why should the business judgment rule apply to every aspect of running a business except deciding how much to pay the very people who make the business possible? (The fact that executive pay is a "politically sensitive subject" is not a legitimate response.)

--Despite the oft-repeated protestations of "entrenched management" and lamentations that "shareholders have no power" in modern major corporations, the fundamental truth remains unchanged: shareholders have the ultimate power — the power to sell their shares if they don't like the way management is running the firm. The whole point of the corporate structure is limited liability for shareholders. But with limited liability comes limited power. This is neither new nor problematic.

--For what it's worth, there is already a penalty in the Internal Revenue Code for paying employees "too much." Salaries in excess of $1 million per year are not deductible to the firm as a business expense. Isn't that regulation and punishment enough?

--For the legal scholars: The death of economic substantive due process and the end of the Lochner era emerged from a concern about the "little guy" and rejecting the premise that there is a "right" to be exploited by big business. But what can that possibly have to do with executive pay? If the non-executives are being protected by the labyrinth of workplace regulations that have spawned since the New Deal, then why should anyone really care how much the CEO makes? And by the way, aren't all stockholders "rich" in the eyes of the anti-corporate crowd and therefore neither deserving nor in need of protection by the modern regulatory state the way that unskilled laborers supposedly are? How exactly is championing stockholders consistent with "opposing corporate greed"?

The business judgment rule may not be a "constitutional" concept the way "freedom of speech" or "equal protection" are. But it's a good rule that just plain works. And it should not be discarded in the name of nebulous quasi-concepts as "social justice" or "political expediency." Workers and stockholders are already more than adequately protected from "greedy" corporate leaders — if anything, they are over-protected. Regulating executive pay would be a potentially disastrous step in the wrong direction.

During the recent eight-day rainfall here in New York City, as I was heading out, poncho donned and umbrella in hand, to walk Diamond, a neighbor remarked: "That's why I own cats — they're a lot less work."

Nonsense. Diamond requires no real work from me. In fact, she likes to earn her keep by helping out around the apartment.

For example, she always helps with the laundry:



She always starts with the pants and shirts, leaving socks and underwear for last:



This week it was time to pack away the spring clothes:



With her chores done, time to relax:



Best dog in the world.

Carnivalized at Modulator's Friday Ark.

Mr. Sulu is gay:

The current social and political climate also motivated [George] Takei's disclosure, he said.

"The world has changed from when I was a young teen feeling ashamed for being gay," he said. "The issue of gay marriage is now a political issue. That would have been unthinkable when I was young."

The 68-year-old actor said he and his partner, Brad Altman, have been together for 18 years.

Takei, a Japanese-American who lived in a U.S. internment camp from age 4 to 8, said he grew up feeling ashamed of his ethnicity and sexuality. He likened prejudice against gays to racial segregation.

Can calls from Focus on the Family to boycott DVDs of classic Star Trek be far behind?



On the other hand, wouldn't your first guess honestly have been Walter Koenig?

Seriously though -- bravo to George Takei both for his contributions to the Star Trek legacy and the future of gay rights.

...the W-word being, of course, "Walloon" --

Belgium's history of linguistic bickering between Flemings and Walloons entered a new phase this week when police arrested a Flemish woman for calling her Walloon husband lazy, Belgian media said Thursday.

The 48-year-old husband filed a complaint for racism against his spouse for scratching him and calling him "a lazy Walloon, a slave and an inferior creature," De Standaard daily said.

The 47-year-old woman will appear before a magistrate later Thursday to face charges of racism, the newspaper said.

Of course, the fact that there is such as crime as "racism" in Belgium and that someone — even a spouse — can face criminal charges for mere words is no laughing matter, nor is the fact that Europe has no First Amendment.

Curtailing free speech in order to combat racism — the ultimate manifestation of the cure being worse than the disease.

An Ohio orthodontist is helping parents avoid the chaos of braces damaged by Halloween candy:

He offers the trick-or-treaters $1 a pound for their goodies. ... Last year, children turned in more than 80 pounds of candy.

As he did last year, Lawrence said he'll send the candy to soldiers serving in Iraq. He suspects much of the candy will then be passed on to Iraqi children.

So children learn about opportunity cost, financial intermediation, reservation pricing, and maybe even positive externalities. Neat-o!

Of course, another option would be to have the children sell the candy on eBay and teach them about auctions, commissions and contract law.

Either way, something to smile about.

(Via Kevin, M.D.)

It will be interesting to see what, if anything, comes of Israel's demand that Iran be expelled from the United Nations after its newly elected president called for Israel to be "wiped off the face of the world."

So far, we're at the diplomatic equivalent of DefCon 2 — the infamous "summoning" --

Britain's Foreign Office said Thursday it intended to summon Iran's charge d'affaires to protest Ahmadinejad's remarks, calling them "deeply disturbing and sickening."

Other world governments on Wednesday issued statements criticizing the Iranian's remarks, including Britain, Canada and Germany.

In Madrid, Spanish Foreign Minister Miguel Angel Moratinos summoned Iran's ambassador to protest Ahmadinejad's comments. French Foreign Minister Jean-Baptiste Mattei also condemned the remarks "with the utmost firmness."

I'm sure the Israeli people will sleep soundly tonight knowing that the French are so utmostly firm in their inaction.

Of course, nothing can come of such a preposterous demand as limiting the United Nations to civilized, freedom-loving nations, since the uncivilized, freedom-hating dictatorship of China would block any such measure (as would, most likely, the only slightly less pathetic Russians).

Neither should one expect something creative from Washington, such as declaring Iranian leaders persona non grata in the U.S., thereby preventing them from physically reaching the U.N. headquarters. That would be too easy undiplomatic.

There are many ways to describe the United Nations. My favorite three are of course:

A theater of the absurd, a decomposing corpse and an insane asylum.

Incidentally, about 25% of that insane asylum is financed by the American taxpayer.

Talk about a bridge to nowhere...

More thoughts from California Yankee.

The author of the mega-bestseller "The Da Vinci Code" is being sued in England for stealing the idea behind the controversial book.

Not from another novelist, mind you, but from two non-fiction authors:

Michael Baigent and Richard Leigh are suing the world's highest-paid writer, Dan Brown, over allegations that he lifted central themes from their non-fiction book.

In their 1982 work, The Holy Blood and the Holy Grail, the authors explore theories that Jesus and Mary Magdalene were married and had a child together.

They also propose that the direct descendents of that child are still alive today -- the key concept behind the Dan Brown novel.

So consider the implications: If a scientist hypothesizes that flies trapped in amber could contain sufficient blood samples to clone dinosaurs, then no one can write a novel about it without paying royalties? If an astronomer speculates that the first signals we ever receive from outer space will be our own television transmissions sent back to us, no one can make a movie about it without violating copyright? Do the current owners of the Titanic wreck also own the rights to any fictionalized accounts of the disaster? And so on.

Had this lawsuit been filed in an American court, I am certain that it would not survive a motion to dismiss. But the litigation is in Britain, so who knows?

Related Reading:

To me, the irony of the flawed and now failed nomination of Harriet Miers to the Supreme Court is that, from a strictly consequentialist perspective (which I dismiss utterly as a philosophical, jurisprudential or political approach), she might have done alright by libertarians, and perhaps even gays. To the extent that she would have done anything on the Court, I think she would have been far more moderate, far more eager to contribute to consensus building, and far less likely to default to "What would President Bush want?" than many people presumed.

I still suspect that the president will again seek to nominate a woman. A sitting circuit court judge is almost unavoidable given the Miers controversy.

I think the White House is too wounded, and too tired, to roll the dice with another lightning rod nomination such as Judge Janice Rogers Brown, let alone Attorney General Alberto Gonzales.

I will remind my readers that Circuit Court Judge Edith Clement is from New Orleans.

Finally, while I experience no Schadenfreude over seeing my President embarrassed, I take some comfort in knowing that the Senate, the media, the blogosphere and the people are still willing, sometimes and when it matters, to remind our leaders that government is not a toy, that with power comes responsibility, and that the office is always more important than the officeholder.

My father, who turned 70 about six months ago, is on the verge of reaching another amazing milestone:

He served as a New York City Police Officer for 22 years, and has been retired for 21 years. Soon he will have been collecting an NYPD pension check longer than an NYPD paycheck.

On the other hand, maybe that's not so amazing after all:

[Frank Murray] belongs to an elite fraternity, the estimated 71,000 Americans who are 100 years old or older. And their ranks will grow. The U.S. Census Bureau projects that 114,000 Americans will be centenarians in 2010, a number expected to swell to 241,000 by 2020.
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The average American born in 1900 was only expected to reach age 47, according to the Centers for Disease Control and Prevention. By 1960, he or she could expect to be around until about 70. Life expectancy has gone up steadily since, hitting 75 in 1990. ...[B]etter treatments for chronic conditions such as heart disease pushed life expectancy to about 78 in 2003.

Meanwhile, Social Security still kicks in at 65-67, with an option to collect reduced benefits at 62. Private defined-benefit pensions still generally follow the "twenty years of service" rule.

And people wonder why there's a Social Security crisis, a private pension crisis, and a government pension crisis?

Congress, meanwhile, is stuck on another bridge to nowhere:

Nearly everyone -- business, labor, Republicans, Democrats -- agrees that something must be done to sustain company-based pension plans and make sure that the federal agency insuring them doesn't become a financial basket case. Getting Congress to agree on legislation is another matter.

The Senate, on the verge of passing a bill several weeks ago, has since stalled, unable to come to terms with several lawmakers, backed by business and labor groups, who oppose requiring companies with poor credit ratings to pay more into their pension funds.

Riskier participants should pay higher premiums -- this is somehow a radical concept?

The insolvency and (subsequent taxpayer bailout) of the federal Pension Benefit Guaranty Corporation appears increasingly inevitable, as does some form of "infinite force / immovable object" cataclysm in Social Security now that the Bush Administration has blundered so badly on that front.

Of course, the centenarians who are poised to collect Social Security and pension checks for 40 or more years are not really the core of the problem.

The osteoporosis of a frail old Social Security and defined-benefit pension system, not to mention the feeble-minded dementia of our hack politicians, are the real crises.

I've blogged several times about the increasingly manic denial of basic liberties to convicted sex offenders, including the constitutionally suspect practice by some cities of banning them outright from residing there.

And while I remain a "law and order" kind of person and acknowledge the empirical evidence that recidivism rates are much higher for sex offenders and especially child molesters than they are for other categories of criminals, I am increasingly convinced that we are approaching an unfair -- and ineffective -- mob mentality toward perpretrators of sex crimes.

And what better time to lose all sense of reason than Halloween?

In Westchester County, high-risk sex offenders on probation will be required to attend a four-hour educational program on Halloween night. In New Jersey, state officials are instructing paroled sex criminals not to answer their doors if trick-or-treaters come knocking. And in counties throughout Texas, parolees with child contact restrictions are being told to stay away from Halloween activities, even family gatherings.
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In effectively detaining sex offenders on Halloween, most officials say they are not responding to any attacks known to have occurred on past holidays but are concerned that the occasion presents a tantalizing opportunity for offenders to have unsupervised contact with children.

Wouldn't a better approach simply be to have the children supervised while they trick-or-treat? Don't parents do that anyway these days?

More:

But yesterday, civil libertarians and advocates for victims criticized the new measures as incomplete solutions and, in some cases, politically timed. Carolyn Atwell-Davis, the director of legislative affairs for the National Center for Missing and Exploited Children, applauded the efforts but pointed out that most children are victimized by people they know, not by strangers. And by focusing on one night of the year, the restrictions will have limited value, she said.

Ah yes, the Politics of the Warm Fuzzy Feeling, just in time for Election Day. And what generates a warmer, fuzzier feeling than "protecting children"?

But remember: "sex offender" includes those who target adults (i.e., rapists) and not just child molesters. And while I'm no expert, might it not be therapeutic and rehabilitative to have sex offenders experience "normal" (and safe) interaction with children via an activity such as handing out Halloween candy?

And what about the kids? Is there no negative effect from teaching them that it's okay to treat some people -- even very very bad people who do very very bad things -- as outcasts who are beyond all redemption and must be avoided forever? Is it wise to tell children that there really are monsters, and that they live right down the street, and that they are so horrible that you can't even ring their doorbell with Dad by your side?

At what point does "protection of society" and "retributive justice" morph into bloodlust?

The Vatican has reiterated its willingness to join the U.S. and other mypoic nations in thumbing its nose at democratic Taiwan and embracing the Communist dictatorship of the mainland:

"I have said many times that if we had contacts with Beijing, our charge d'affaires who is in Taiwan would go to Beijing, not tomorrow morning, but tonight," [Cardinal Angelo Sodano, Vatican Secretary of State] told reporters on the sidelines of a university event.

China has had no diplomatic ties with the Vatican since 1951, two years after the Communist takeover.

The Vatican's sole reason for not having embraced the Communists previously is the mainland's refusing to allow the Vatican to control the Church within China:

China refuses to allow the Vatican to appoint bishops and it refuses to allow Catholics to recognize the authority of the Pope.

Instead, Chinese Catholics must belong to a state-backed church known as the Catholic Patriotic Association.

"Clash of the Authoritarian Titans." How quaint.

Meanwhile, this is all a polite, "diplomatic" way (both literally and figuratively) of saying that the Vatican couldn't care less about Tibet, its persecuted and slaughtered Buddhists, and the one man on earth who is most analogous to the Pope -- the Dalai Lama. Ditto for the victims of China's oppression of the Falun Gong spiritual movement.

No, as long as the Catholics are okay, then why should the Pope care about anybody else?

Then again, the Vatican has a history of collaborating with dictatorships. Go figure.

Maggie Gallagher is getting pretty desperate in her quest to find a reason, any reason, to oppose gay marriage (but remember, she's "not a bigot"):

But to find out whether marriage is doing just fine, the New Jersey judges might learn more listening to Kanye West.

His latest hit, "Golddigger," is the quintessential postmodern love story told from the male side, full of fantastic need and longing, punctuated by the grim reality of sexual betrayal and gender mistrust...
...
So call me dubious: Right smack in the middle of this unprecedented marriage crisis, what should courts do to marriage, according to these distinguished scholars? Why, gut it of the presumption that marriage has something to do with joining the man and the woman who make the baby.

Putting aside any racial analysis (since Gallagher is so good at being "not a bigot," I'm sure she's also an exemplary "not a racist").

Here we have the same tired Gallagher gobbledygook that inspired literally hundreds of rebuttals to her recent humiliating stint as a guest blogger elsewhere. Here is her thesis: Heterosexuals generally have undermined marriage via liberal divorce laws. Hip-hop heterosexuals specifically have undermined marriage via violently misogynistic lyrics. Therefore, the solution is to codify, and perhaps constitutionalize, discrimination against those who are neither heterosexuals generally nor hip-hop heterosexuals specifically.

Because it is, somehow, "all about the children."

This is the logical equivalent of banning cats because some dogs bite people. Because it is, somehow, "all about the children."

Of course, if Gallagher really wanted to take on hip-hop, then she should start by recognizing that marriage isn't even part of the equation. The problem with sexist hip-hop is not that it blanks out marriage or blanks out babies, but rather that it blanks out love and respect. Get that back into the picture, and hip-hop marriage and will take care of itself, complete with happy, healthy hip-hop babies.

For someone who is so good at blanking out love and respect when it comes to gays, one might think that Gallagher would actually be more sympathetic to misogynist hip-hop artists. She and they are actually more alike than they are different: both motivated strictly by hatred, contempt and narcissistic self-absorption.

Dilbert creator Scott Adams has a blog.

And the first entry discusses two of my favorite topics: censorship and police misconduct.

Check it out.

I've blogged previously that I don't believe in "journalist shield laws" because the concept of "legal privilege" should only apply to privileged people, which journalists are not. Privilege is also supposed to protect the conveyor of privileged information, not the recipient; a journalist shield law turns this axiom upside-down.

But if you take as a given that there should be some kind of "journalist shield law," then it should actually apply to journalists as they are engaging in journalism.

So here is why the "blogger exception" to the proposed federal journalist shield law makes no sense whatsoever:

Bloggers who actually gather news would be protected under the proposed federal shield law, the legislation's first author, U.S. Rep. Mike Pence, R-Ind., told the Inland Press Association Monday.
...
Pence said bloggers would likely have to be considered on a "blog-by-blog" basis.
...
"Frankly, there are some that are out there gathering news," Spence said at Inland's 120th annual meeting. "There are many people though, who just link to your newspapers. It would be hard to argue to anyone that privilege applies to those people just because they have a Web site."

Huh? Remember what a journalist shield law is: a legal protection against being compelled to disclose the identity of confidential sources.

So how is someone who "just links to newspapers" affected by a shield law in the first place? If you're blogging about what your confidential sources tell you, then by definition you are not "just linking to newspapers," and if you are "just linking to newspapers," then by definition you have no confidential sources and have no need for a journalist shield law.

What Representative Pence and his Senate counterpart, Dick Lugar, cannot tiptoe around is the fatally flawed definition of a "covered person" in their proposed "Free Flow of Information Act" (H.R. 581, S. 340):

[A]n employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such [an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means].

In other words, under the Pence-Lugar bill, a journalist is not someone who "does journalism" but merely someone employed by the mainstream media.

If there is going to be a "shield law," then it must be a journalism shield law rather than a journalist shield law. If the hack politicians really care about the "free flow of information," then fine — protect the flow and not the logjam.

Journalist is as journalist does...

More thoughts from Jonah Goldberg.

(Cross-posted at PoliBlog.)

Just a quick note that one week ago today, the national debt exceeded eight trillion dollars for the first time ever.

Kind of puts this conversation in perspective, doesn't it?

And keep in mind that, even assuming a very conservative 4% interest rate, that's about $320 billion in interest -- $320 billion in federal taxes that buys nothing, builds nothing, employs no one, feeds no one, educates no one, houses no one, cures no one and defends no one from terrorism or even avian flu.

Remind me again why you're not all libertarians?

(Via Government Bytes.)

A growing number of macroeconomists seem to think so:

But when you subtract investment, net exports, and government spending from GDP, you arrive at what should be the sum of consumption spending plus inventory investment... Trouble is, this ... line clearly trends down, and that can't remotely be explained by inventories. The implausible behavior is even more clear when plotted as growth rates...

In other words, if

Y = C + I + G + X

but

I + G + X > Y

then C must be negative (thinking in terms of growth rates), regardless of any Communist propaganda to the contrary. Damn the totalitarianism of arithmetic!

Need some hard numbers?

It seems from this that in the year to September the man on the street spent 17 per cent less on daily necessities and toys than he did the previous year.

But this is not what other official statistics say. They say that retail spending for the year to September was 13.6 per cent greater than it was the previous year ... and that this retail spending alone was almost twice as great as the remainder number we calculated for all personal consumption spending.

How is it possible? It is not. The latest GDP figures from the mainland simply do not add up.

(Click to enlarge.)

More on China's bogus economic statistics from Big Picture, RGE Monitor.

A Communist dictatorship lying about their economic statistics? That would be unprecedented, right?


(Click to enlarge.)

"Market Communism" is the most obnoxious oxymoron since "original sin." And those who get duped by the fraud, or who just don't care so long as China keeps building "neat-o" skycrapers, are running out of excuses for their increasingly inexcusable perspective.

...when you can control the alphabet?

A Turkish court has fined 20 people for using the letters Q and W on placards at a Kurdish new year celebration, under a law that bans use of characters not in the Turkish alphabet, rights campaigners said.

The court in the southeastern city of Siirt fined each of the 20 people 100 new lira ($75.53) for holding up the placards, written in Kurdish, at the event last year. The letters Q and W do not exist in the Turkish alphabet.

Under pressure from the European Union, Turkey has improved language and human rights for its Kurdish minority, but the EU says implementation has been patchy and loopholes remain.

Maybe if the Eurocrats worried a little more about oppression of Kurds and a little less about oppression of the wine and cheese markets...

(Via Fark.) More thoughts at Hit & Run.

Suggested Reading:

A while back I lambasted the European Union for passing an obnoxious protectionist regulation that required any winery wishing to use the word "château" to actually be within sight of a bona fide castle.

Well, what's wine without cheese?

After a 13-year dispute, the EU gave Greece exclusive rights to the name for the salty white cheese in 2002. However, Denmark and Germany challenged the decision in court.

Now the Luxembourg European Court of Justice has decided Denmark and Germany had not provided sufficient arguments to prove the EU Commission wrong.
...
The court backed the argument that "feta" meets the requirements of a designation of origin — in that it describes a cheese originating from a substantial part of Greece.

This story may seem trivial, but there's a real cost to an arbitrary regulation like this, above and beyond the typical market disruptions that government-imposed barriers to entry bring, such as higher prices, lower output and abnormal profits to the politically favored firms.

Anyone remember "menu costs" from their Introductory Macroeconomics class? Non-Greek feta producers will now face a similar expense:

Judy Bell, who runs Shepherds Purse Cheeses near Thirsk, in North Yorkshire, said she was not surprised by the ruling.
...
"We will have to go through a massive remerchandising process and reorganisation" she said.

This is essentially a tax from non-Greek feta cheese producers into the hands of their Greek counterparts.

But of course, redistributionist taxation and regulation have always been what the Eurocrats do best.

More thoughts at Conglomerate.

Ultra-liberal Massachusetts senator Edward Kennedy has proposed that the federal government issue vouchers to students in Katrina-stricken Louisiana schools so they can attend private schools while the public school infrastructure is disabled.

There are just two small problems:

1. Almost every private school in Louisiana is a Catholic school.

2. Ultra-liberals like Kennedy aren't supposed to advocate school vouchers.

Let the leftist infighting begin:

Although the money would be distributed by the school districts, liberal advocacy groups say the bill sets a bad precedent, and does not offer enough anti-discrimination safeguards required of public institutions that receive federal money.

"This is a voucher -- it walks likes a voucher and quacks like a voucher. There's just no way to get around it," said the Rev. Barry W. Lynn, executive director Americans United for Separation of Church and State. "The money ends up in the treasury of religious schools. And religious schools are religious all the time. It's not only bad policy. It violates the Constitution."

Put aside for the moment the libertarian question of whether the federal government should be giving any special money to Katrina victims, whether for education expenses or anything else. Why exactly do people get so uppity about vouchers possibly being used to pay tuition at religiously-sponsored elementary and secondary schools?

What do these people think Pell Grants are? They are school vouchers -- no more, no less. They just happen to be school vouchers for higher education rather than primary education. And I don't think I've ever heard anyone say with a straight face that there is anything specifically "unconstitutional" about using Pell Grant vouchers to attend Notre Dame, Brigham Young or Yeshiva University. (Again, you may not like vouchers generally, but that is a different question from "vouchers, but only for non-sectarian schools.")

Personally I'd rather see more vouchers at the pre-college level (where the positive externalities of education are more prevalent), and less at the collegiate level (where the benefits are more personal than social). Either way, so long as the vouchers were genuinely buying education and not religious instruction (and surely the two can be adequately partitioned, even in a parochial school), the paranoia over "government supporting relgion" is a little too hysterical even for this libetarian atheist.

So if anyone can explain me precisely why it should be okay to use a taxpayer-funded school voucher to attend St. John's University but not Sister Mary Ignatius Elementary School, I'm listening.

I happen to agree with President Bush that he is entitled to withhold documents relating to Harriet Miers' service as White House Counsel.

Which is yet another reason why the nomination was outrageous to begin with.

Remember, most people who oppose Miers' nomination are doing so because, in their opinion, she lacks either jurisprudential credentials or ideological credentials. (I fall into the former camp.)

But the White House should have known that it would wind up trapped with respect to both camps:

"She is qualified."

--"How so?"

"She served as White House Counsel."

--"Okay, what exactly did she do as White House Counsel?"

"Sorry, for the sake of future presidents we can't disclose that."

It would be different if Miers had some — any — paper trail or line item on her résumé that suggested sufficient credentials. But instead we've now deteriorated from "You should trust me..." to "You have no choice but to trust me..."

But of course, the Senate does have a choice — to reject her nomination. And while the president may have no choice but to withhold the documents "for the sake of future presidents," he does of course a choice regarding this present nominee.

How soon before the unspeakable is spoken of and the unthinkable is thought about?

More thoughts at SCOTUSblog.

In the least surprising news out of the White House in months if not years, President Bush has named Ben Bernanke, current Chairman of the President's Council of Economic Advisers and a former Federal Reserve Governor, to replace outgoing Fred Chairman Alan Greenspan.

No word yet on whether James Dobson was given private assurances that Bernanke would vote to overturn Roe v. Wade.

Seriously though — see how easy it can be when a president takes his nomination responsibilities seriously?

My only concern with Bernanke is his past co-authorship of an introductory economics textbook with Robert Frank, a leading advocate of almost limitless central planning (with people like him as the central planners). Frank, like Paul Krugman, has gone populist via columns for the New York Times in which he demonstrates a exceedingly bizarre antipathy toward wealth and prosperity in America.

But I'm not a big believer in disqualification by association, only disqualification by non-qualification.

Congratulations to Professor Bernanke, who barring any kind of scandal is certain to be confirmed.

More thoughts at WILLisms.

(FULL DISCLOSURE: Robert Frank was my graduate adviser at Cornell.)

Marginal Revolution revisits this Reason article about Milton Friedman's once-radical thesis that firms should abstain from engaging in "socially responsible behavior" such as donating to charities and should instead focus strictly on maximizing profits.

In the process, Tyler Cowen has a slight slip of the tongue (slip of the keyboard?):

Friedman has qualified his social responsibility claim for force and fraud, but what about negative externalities more generally (just ponder Tamiflu licensing if you want the appropriate headache)?

Huh? Developing the only pharmaceutical that is even remotely effective against avian flu is now considered a "negative externality"?

I actually see where Cowen is going in his post, but I think it's a bit too sloppy to fault the mere concept of private enterprise and private property as inflicting "negative externalities."

If I lock my apartment door on my way to work, then perhaps, technically, yes I have imposed "negative externalities" on my neighbors, who are now prevented from, for example, coming in and watching my television. But if we start defining down externalities to the point where private people and private businesses not engaging in altruistic deviation from profit maximization is an "externality," then the word no longer has any real meaning, and any or every policy proposal, no matter how anti-capitalist and anti-libertarian, is functionally and morally equivalent.

And with regards to Tamiflu specifically, I maintain my thesis that the "problem" of pharmaceutical profits is no real problem at all: If you want companies (or their investors) to do good tomorrow, then you have to let them do well today.

Imagine if the federal government passed a new law that not only carved out (yet another) exception to the Fourth Amendment's requirement of either a warrant or probable cause to enter a home, but also required every homeowner to provide, at their own expense, one of those battering rams that police use to break down doors.

Well, something similar is happening at America's colleges:

The federal government, vastly extending the reach of an 11-year-old law, is requiring hundreds of universities, online communications companies and cities to overhaul their Internet computer networks to make it easier for law enforcement authorities to monitor e-mail and other online communications.

The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers.

Please correct me if I'm mistaken, but isn't it true that few if any recent terrorists, whether Islamofascists or neo-Nazis or whatever, have attended U.S. colleges or utilized their technological infrastructure? Heck, it seems to me that the best thing we could do would be to get more potential terrorists into our mainstream educational system — maybe it would prevent them from becoming terrorists in the first place.

Keep in mind that the colleges are not actually challenging the requirement on privacy grounds per se, but on the unreasonable timing and expense. According to one spokesman for the colleges, the requirement would amount to a $450 annual tuition increase for every college student in America.

With no guarantee, indeed no reasonable expectation, that a single terrorist would be caught or a single terrorist plot thwarted.

Everyone wants to stop the terrorists. But there simply must be limits. Limits to the price we pay, both in terms of dollars and in terms of erosion of our privacy rights.

And if we're not at those limits yet, then we're coming pretty damn close.

The "Jesusland" concept is certainly gaining traction:

Cory Burnell wants to set up a Christian nation within the United States where abortion is illegal, gay marriage is banned, schools cannot teach evolution, children can pray to Jesus in public schools and the Ten Commandments are posted publicly.

To that end, Burnell, 29, left the Republican Party, moved from California and founded Christian Exodus two years ago with the goal of redirecting the United States by "redeeming" one state at a time.

First up for redemption is South Carolina.

So once Christian Exodus sets up its Judeo-Christian enclave in South Carolina, then what?

The organization's Web site says if it does not meet its goal of change, it will work to secede from the United States.

Okay, that's an impressively innovative idea (at least for those who have never had an American history course). And how far along are they, after two and half years of trying to coax dedicated, emphatic gay-fearing God-fearing Christians to join this modern-day Crusade quest to take back America one state at a time?

Since then, five families and two individuals have relocated to South Carolina, Burnell said.

Well, at least they've achieved the critical mass to challenge the nearest gay softball team to a game or two. And it only took them two and half years.

Fundamentalist "Red State" mania: the disco movement of the Twenty-First Century.

Here are a pair of frivolous lawsuits to get you through the weekend:

ITEM: "You are the Apple of my ire..." --

A class action lawsuit has been launched against Apple Computer claiming the company’s recently released diminutive iPod nano scratches too easily.
...
"The suit charges that Apple violated implied and expressed warranties when it began selling what plaintiffs claim are defective devices, and violated aspects of state consumer protection laws," the lawyers said in a statement.

The suit seeks compensation for purchasers of the devices.

MY TAKE: Scratches easily? What's next — requiring a label on the package that reads "Should not be used by dogs as a chew toy"? I have not bought an iPod nano (and what's with that lowercase "n" nonsense?), so perhaps someone who has can enlighten me: Does the packaging or any advertisement indicate "Scratchproof" or even "Scratch-Resistant" anywhere? My paleo-iPod is also scratched and works just fine — the whole point is that the thing isn't a vinyl album or compact disc and scratches don't mean anything. (Reminder: I am no stranger to iPod lawsuits.)

UPDATE: Overlawyered points out that not only do the plaintiffs want a refund of their purchase price (i.e., to get their iPods for free), but they are also suing for a share of the company's profits from nano sales. In other words, they not only want the money they paid for their nano, they also want the money you paid for yours. You don't need a law degree to know that it doesn't work that way -- the law abhors a windfall (not to mention obnoxious class actions).

---

ITEM: Life begins at conception ... of litigation?

Pelsa Agnew doesn't know whether his unborn baby is a boy or a girl or whether it was hurt at all in last month's Metra train derailment.

But as the mother lies hospitalized with brain injuries from that crash — and the fetus continues to grow inside of her — Agnew has filed a personal-injury lawsuit against Metra on behalf of the unborn child.

One legal expert said it was a "bizarre" suit filed in Cook County Circuit Court, as it seeks damages for someone who isn't yet born and might not even be injured.

MY TAKE: There's actually a basis in the law for tortfeasors being liable for the potential of medical harm and for medical monitoring expenses even when there is no manifestation of illness or injury — asbestos litigation is the textbook example. But such liability is based on probabilities and not mere speculation: it is very likely that someone with significant exposure to asbestos may develop future illnesses unique to that exposure. But with no evidence whatsoever of any harm or any likelihood of future harm, there can be no liability and any lawsuit based on such a claim is frivolous. What's next — demanding money because the mother took one Vioxx five years ago? (Via Fark.)

Here is a sampling of the kind of questions I would like to see Harriet Miers asked during her confirmation hearings:

--In the 1990s, as president-elect and president of the State Bar of Texas, you advocated "affirmative action" policies including racial set asides in private law practices. Given the Supreme Court's recent holdings in Grutter v. Bolinger, No. 02-241, 539 U.S. 244 (2003) and Gratz v. Bollinger, No. 02-516, 539 U.S. 244 (2003), do you think such set asides would be constitutional today? Also, please remind us how the facts differed between Gratz and Grutter and how those different facts led the Court to reach different decisions.

--A key premise in current Supreme Court affirmative action jurisprudence is that achieving racial diversity in higher education, including law schools, is a "compelling state interest." Do you consider achieving racial diversity in the legal community generally, and private law practices specifically, to be a "compelling state interest" in the constitutional sense of that term?

--Is the State Bar of Texas a "state actor"? Why or why not?

--Justice O'Connor wrote in Bollinger that "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Given that you might be on the Court in 2028, would you consider Bollinger as having "expired" or at least subject to less deference under the doctrine of stare decisis at that time?

--Gratz v. Bollinger and Grutter v. Bollinger drew heavily from the famous educational affirmative action case University of California Regents v. Bakke, 438 U.S. 265 (1978). Please remind us what the facts of that case were and what the Court held.

--You have been described as a "pathbreaker" for women in the legal profession. As president of the State Bar of Texas, when you referred to "minorities," did you mean women as well as racial minorities? Would you include women as "minorities" today, either in the legal profession or in society generally? And can you remind us, precisely, how current equal protection analysis distinguishes between race and gender? Please be specific.

Do you think she would pass?

More thoughts from PoliBlog, George Will:

"It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases..."

Indeed.

The Roman Catholic Church has found quite a convenient solution to its problem of rampant pedophile and pederast priests:

The fourth lawsuit in less than two weeks accusing an Alaska-based Catholic priest of sexual abuse was filed Thursday, fueling a conviction among critics that Alaska was a dumping ground for problem clergy.
...
Rural Alaska was a prime go-to place to send abusive priests, given its isolation and cultural reverence for authority figures, such as elders and priests, said Patrick Wall, a former Benedictine priest and consultant for a Costa Mesa, Calif., law firm that has worked on more than 300 church abuse allegations nationwide, including Alaska.
...
Even though only [sic] 12 of Alaska's 500 priests who served between 1959 and 2002 face allegations -- a fraction of nearly 4,400 priests accused nationwide -- people like Wall say the spate of allegations has only begun.

"Only" 12 out of 500? "Only" a 2.4% pervert rate? Could you imagine if "only" 2.4% of a school's teachers were child molesters, "only 2.4% of a camp's counselors were convicted sex offenders, or if "only" 2.4% of a practice's dentists fondled their anesthetized patients' breasts?

Will this be the Catholic Church's new defense in its seemingly endless child molestation scandal? "Well, when you think about it, 2.4% isn't all that bad."

Perhaps Alaska's hack politicians should spend less time building "bridges to nowhere" and more time looking out for their constituents. (See also my previous post.)

(Via Fark.)

The Kansas Supreme Court has unanimously ruled that the state's statutory rape law, which had a so-called "Romeo & Juliet" exception for youth-to-youth heterosexual intercourse but not for homosexual intercourse, is an unconstitutional equal protection violation that punishes someone simply for being gay.

The case in question concerned Matthew Limon, who at 18 engaged in oral sex with a 14-year old boy. He was sentenced to 17 years in prison. Had it been a 14-year old girl, the sentence would have been 15 months. For details and analysis, see my previous post.

Anyone even vaguely familiar with the facts or the holding of Lawrence v. Texas, 539 U.S. 558 (2003), knew immediately that such a differential is now indisputably unconstitutitional. Indeed, the U.S. Supreme Court had originally overturned Limon's sentence and expressly ordered the lower Kansas courts to reconsider the case "in light of Lawrence." The lower appeals court's response was to uphold the sentence, responding with the insolent assertion that "Lawrence does not apply."

The Kansas Supreme Court, having somewhat more respect for the U.S. Supreme Court, has now gotten it exactly right.

Matthew Limon spent four extra years in prison for being gay. He will soon be free.

Remind me again how it's all "too much, too soon"?

The case is State v. Matthew R. Limon, No. 85,898 (Kansas, 2005).

More thoughts at Ex-Gay Watch, SCOTUSblog.

Just two days before a massive fire caused subway chaos in Manhattan (yet again), mass transit officials declared that, lo and behold, they have too much money and want to give some of it back:

In an unprecedented move, the Metropolitan Transportation Authority will cut the base fare in half to $1 on weekends between Thanksgiving and New Year's Day, agency sources said yesterday.

The "bonus days" — which also include the last week of December — will be funded by a portion of the agency's $928 million surplus projected for the end of this year.
...
The discounts will cost the agency $50 million, but will encourage the use of mass transit during the holiday season and give riders a break in the face of escalating gas and home-heating costs, according to the memo.

Of course, what is described as "giving a break" to riders between Thanksgiving and Christmas is really a redistributionist tax from all the people who rode the subway up until now (who have been paying what now appear to be artificially high fares) to subsidize later riders (who will pay artificially low fares).

This is not what the MTA is chartered to do.

The MTA, a bureaucracy that is neither puny nor poor, exists to provide mass transit services at cost. Its raison d'etre is not to amass surpluses of nearly a billion dollars and then play Santa or Scrooge with arbitrary discounts.

It was wrong to accumulate such a surplus in the first place. Given that it now exists, it is wrong to use it for any purpose other than to shore up its own finances or to fund capital improvements.

If the MTA honestly can't think of anything better to do with its surplus than have a temporary, warm-fuzzy-feeling "sale" on fares, then let me make a modest proposal:

A subway endowment.

It would work like this: Whenever the MTA runs an unexpected surplus (which, remember, means the MTA was incompetent in its financial modeling and forecasting), the extra money would be put into a permanent fund, managed by independent trustees, the income from which would help offset the general operating expenses of the system, thereby helping to keep fares low in perpetuity.

This is hardly a Nobel Prize winning discovery. Permanent civic institutions often rely on endowments — colleges, museums, orchestras, scholarship funds, houses of worship, etc. — so why not mass transit? The benefits of an endowment are permanent and perpetual. They are also egalitarian, since all future riders benefit and not just those randomly fortunate enough to be paying their fare during some arbitrary interval.

The MTA should either figure out how to properly price train fares or at least put its surpluses to a use that would benefit all riders equally.

Either that, or at least spend the money on figuring out how to avoid burning the system down every few months.

More thoughts from Andrea Peyser.

UPDATE: Governor George Pataki, who controls the MTA board, has expressed his opposition to the "fare sale."

As you may recall, my digital camera had been stolen out of my checked bag at the Mexico City airport when I was down there over Labor Day. This forced Friday DiamondBlogging to take a brief hiatus.

But I have since replaced the camera and am pleased to announce, in the spirit of Doctor Who and Battlestar Galactica, the interregnum has ended and the adventure can now continue.

When Diamond heard the good news, she was so ecstatic she could hardly contain her