A Stitch in Haste

Q: What is Sunday CuteTuber™?
A: Sunday CuteTuber™ is a lighthearted weekly post highlighting a non-commercial YouTube video.

Q: Why do you run this feature?
A: Why not? (My inspiration, however, was The Daily Slap.)

Q: Have you really trademarked "CuteTuber™"?
A: What part of "™" is unclear to you?

Q: What are the criteria for CuteTuber™ designation?
A: There are two separate factors — the YouTuber and the video.

Q: What are the criteria for the YouTuber?
A: There are three — (1) male, (2) 18 or older, (3) cute.

Q: What constitutes "cute"?
A: That is determined by my own subjective tastes and preferences.

Q: How do you find CuteTubers™?
A: Basically I use a viral approach, based on YouTubers I've already located. A YouTuber's home page has at least four social networking threads: Subscribers, Subscriptions, Favorites and Friends. "Comments" can be a fifth. All typically have thumbnail pics attached to the other YouTubers.

Q: Is there a maximum age?
A: As a policy, no. As a practice, no comment.

Q: Are the CuteTubers™ always gay?
A: No, and no inferences to that effect should ever be drawn.

Q: Are the CuteTubers™ always white?
A: Ouch! While I am never the type to insist that I am politically correct, I am indeed aware that I have yet to post a non-white CuteTuber™. That is not a matter of policy but of pragmatics. Stated differently, it is more a reflection on the YouTube community than on me.

Q: What are the criteria for the video?
A: There are four — (1) Preferably humorous; if not, then entertaining in some other way. (2) Relatively short — preferably under four minutes. (3) Reasonably good video quality. (4) Non-commercial (usually).

Q: Any other considerations?
A: Generally no group, "collab" or "meme" videos.

Q: Do you ask permission to use a video?
A: No. My position is that by enabling the "embed" feature on YouTube, one is pre-authorizing such use by others. If a YouTuber were to ask that I remove a video, I would.

Q: Do you notify a CuteTuber™ when his video is featured?
A: Generally not, but YouTube includes a "Links" feature (similar to trackbacks) that indicate the traffic from this blog.

Q: Do you welcome suggestions for videos?
A: Sure. You can email them to me.

This is not new thinking, but it is the most succinct presentation of such thinking I have yet seen:

So let me see if I get it. Just over two hundred years ago, a few thousand people created a "contract" that was binding not only upon the majority of the people at the time who did not consent to the terms of the contract, but upon all future generations as well -- many hundreds of millions of people, for hundreds and perhaps thousands of years. In addition, this intrepid group made it extremely difficult (and later nigh impossible) to alter the terms of the contract. And forever after, their shared views about the meaning of the terms of the contract controls all decisions, no matter how much change takes place in society, the economy, the political system, the population, technology, culture, and everything else.

Is that an attractive (or sensible) way to understand the foundational terms of our society and government

The answer to that question is, of course: No.

The only reason the Constitution is (was?) a morally legitimate document is (was?) because it is (was?) -- as a guarantor of individual liberties and a constrictor of tyranny to the largest extent feasible -- an unobjectionable document. To the extent that the terms of the Constitution are (were?) taken seriously, no rational person could seriously object to it.

So too through the ages: To the extent that the Constitution is wielded as a shield (i.e., "I don't see a government power to proscribe X anywhere in the Constitution"), it remains legitimate. To the extent it has become a sword (i.e., "I don't see an individual right to do X anywhere in the Constitution"), it has been corrupted.

The Constitution's legitimacy was, is, as always shall derive exclusively from its harmlessness to the individuals whom it governs. That is the only "original meaning" that counts.

We owe the Framers our gratitude, not our blind obedience.

Sentencing Law & Policy wants to know:

I concur that everyone interested in death penalty debates should watch this video in order to get a sense of death penalty aesthetics.

My comment there:

I forced myself to watch the Nick Berg beheading mainly because I could not conceptualize it in my imagination — I literally had to see it to grasp it. And also to remind myself what kind of barbarians we are dealing with.

But a hanging? I just watched one on "The Sopranos" last week. I don't see how watching a real one will enlighten me.

Comments have been closed for this post.

What is it about DRM that makes IQs drop so sharply?

Apple Computer Inc. said Friday it is facing several federal lawsuits, including one alleging the company created an illegal monopoly by tying iTunes music and video sales to its market-leading iPod portable players.

The case, filed July 21, is over Apple's use of a copy-protection system that generally prevents iTunes music and video from playing on rival players. Likewise, songs purchased elsewhere aren't easily playable on iPods.

The plaintiff is seeking unspecified damages and other relief. The court denied Apple's motion to dismiss the complaint on Dec. 20.

This is, of course, utter nonsense.

First things first: iTunes is free! How is a company being a "monopolist" (i.e., charging "unfair" prices and reaping "unfair" profits) when it is giving the thing away for free?!? (The fact that you pay for the files is irrelevant — the software is free and by definition can therefore not be"monopolistic.")

As for the iPod, it is essentially nothing more than a portable hard drive, and is, even if clumsily, usable as such without iTunes.

Second, there is simply no monopoly in the market for "storing music software on music hardware." iPod/iTunes has competitors. The fact that Apple is kicking those competitors' iButts does not make it a "monopolist" or its trade practices "unfair."

If you don't like the terms of the contract that Apple is offering for download of audio and video via iTunes/iPod, then simply don't do business with them. Leave the courts out of it.

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Why is this difficult concept for so many people? Possibly because some folks, including some libertarians, have trouble distinguishing between property rights and contractual rights. Many people only think in terms of absolute ownership of property — what the law call "fee simple." The idea that you can buy something, but with "strings attached," is counterintuitive and even abhorrent to some.

Thus, for example, a person may buy a house in a planned community, subsequent to a voluntary contract restricting his ability to fly flags in his yard, then suddenly declare, contrary to that same voluntary contract, that "my property is mine" and demand his "right" to fly the flag anyway. And what does Congress do about it?

So too with DRM: "I bought it, it's mine, and if Apple gets in my way then it's a 'monopolist' and I will sue for my 'rights.'" The fact that the original purchase was entirely voluntary and the terms fully disclosed upfront is blanked out.

Simply preposterous.

"It's stupid."

--Larry Lunt, Chairman of the Utah Department of Alcoholic Beverage Control, commenting on a bureaucratic ruling that (state-run) liquor stores must list in the "blue pages" directory of government offices rather than the traditional "yellow pages" normally associated with businesses.

To elaborate:

State statute prohibits the department from advertising the sale of alcohol, which heretofore has kept the state liquor stores out of the yellow pages. "The yellow pages, by definition, is advertising," commissioner Nicholas Hales said. "We're prohibited from advertising."
...
"To be able to find a liquor store is a reasonable accommodation," Lunt said. "People don't look in the blue pages for liquor stores. They shouldn't have to call this office to find out where a liquor store is."

For better or worse, the Twenty-First Amendment gives states plenary (well, maybe not so plenary) authority to regulate alcohol as they see fit. That can include government-run liquor stores (Utah, Pennsylvania), bans on sales of wine and spirits in supermarkets (New York) and of course the infamous "blue laws" (almost everywhere).

But even a constitutional mandate should not allow states to act in an irrational manner such as calling state-run liquor stores "government offices." Nor should the Twenty-First Amendment be allowed to supercede the First Amendment, which -- if properly applied -- would grant absolute protection to all truthful commercial advertising.

Enough with the archaic "demon rum" attitude and holdover laws from less enlightened times. Government should get out, literally, of the alcohol business.

It's stupid.

For Discussion: Any stupid alcohol laws where you are?

Q: What do the following people all have in common?

--Omar al-Bashir, Sudan. Age 62. In power since 1989.

--Kim Jong-il, North Korea. Age 63. In power since 1994.

--Than Shwe, Burma. Age 72. In power since 1992.

--Robert Mugabe, Zimbabwe. Age 81. In power since 1980.

--Islam Karimov, Uzbekistan. Age 67. In power since 1990.

--Hu Jintao, China. Age 63. In power since 2002.

--Abdullah, Saudi Arabia. Age 82. In power since 1995.

--Seyed Ali Khamanei, Iran. Age 66. In power since 1989.

--Teodoro Obiang Nguema, Equatorial Guinea. Age 63. In power since 1979.

--Muammar al-Qaddafi, Libya. Age 63. In power since 1969.

--Mswati III, Swaziland. Age 37. In power since 1986.

--Isayas Afewerki, Eritrea. Age 59. In power since 1993.

--Aleksandr Lukashenko, Belarus. Age 51. In power since 1994.

--Fidel Castro, Cuba. Age 79. In power since 1959.

--Bashar al-Assad, Syria. Age 40. In power since 2000.

--Pervez Musharraf, Pakistan. Age 62. In power since 1999.

--Meles Zenawi, Ethiopia. Age 50. In power since 1995.

A: None of them were hanged yesterday.

So perhaps people should curb their enthusiam a bit, especially considering the 2,997 other people who weren't hanged yesterday (i.e., because they're already dead).

BONUS QUESTION: What else do some of those people have in common?

ANSWER: The United States ignores their status as bloodthirsty dictators, on the rationalization that they are either "important trading partners" (Jintao, Abdullah, Nguema) or "trusted allies" in the War on Terror, or Drugs, or some other bugaboo (Zenawi, Karimov, Musharraf).

American foreign policy has been reduced to having one hand covered in blood, the other hand covered in feces, and both feet submerged in oil supplied by barbarian goatherders.

So, again, curb your enthusiasm.

I have nothing but contempt for the FCC commissioners who have been blocking the merger of AT&T and BellSouth for political reasons (but remember, they're "dedicated public servants"). Antitrust laws are used by bureaucrats to protect competitors, not competition. And the FCC — probably the most socialist*, definitely the most partisan, and generally the all-around dumbest federal regulatory agency in Washington — should be the last group allowed to wield antitrust power.

But look on the bright side:

AT&T has offered concessions beyond what it had promised in October, including a significant pledge to observe standards regarding network neutrality — basically, equal treatment for all Internet traffic. This issue appeared to be the biggest roadblock to a deal.

I support net neutrality strictly on consequentialist grounds: net neutrality is like the cell phone industry; anti-neutrality is like cable television — which has the better track record over the past 30 years in terms of quality, pricing and innovation? It's a no-brainer.

As for a libertarian analysis, I consider the issue ambiguous at best. Yes the telecom and cable companies "own their pipe," but the only reason they own it is because of the infrastructure head start (i.e., the government-granted momentum) that they had as a result of existing for decades as government-chartered monopolies.

If the government gives you, as a monopolist, free land, or free cars, or free paper clips year after year, then suddenly says "no more free land, or free cars, or free paper clips for you," then you may no longer be a monopolist, but you still have the land or the cars or the paper clips — and you therefore also have an unfair, government-created advantage over any new entrants, even in the subsequent deregulated environment.

So too with the "series of tubes." The "pipe-owners" are where they are at least in part because of prior government intervention in their favor, and for better or worse the government is still entitled, perhaps even obligated, to attach strings to "their" pipe.**

That does not mean, however, that net neutrality should have come from the hack partisan bureaucrats at the FCC. It should have come from Congress, after public discussion and due deliberation.

In government, every silver lining has a cloud.

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*At least now that we are rid of the Civil Aeronautics Board and the Interstate Commerce Commission.

**This was also essentially my argument defending so-called "a la carte" pricing of cable television, another policy that some libertarians took umbrage with, on the (incomplete) reasoning that "they own their pipe." Unlike net neutrality, "a la carte" died a quiet death at the FCC.

A story about diversity quotas (i.e., reverse discrimination) at major law firms is making its way around the blawgosphere:

At a minority counsel conference earlier this year, one speaker told the crowd that his former company, McKesson Corp., had cut a prominent firm out of the bidding for its legal work.

Though Arthur Chong says he didn't name the firm, he did explain his reason to the audience: "It had been highlighted in a legal magazine for not having much diversity."

Chong was followed on stage by Wal-Mart General Counsel Thomas Mars, who, Chong and others say, told the audience: "I know who that firm is, and I am going to speak to them."

Analysis, mostly negative and indignant, from Overlawyered, WSJ Law Blog, Crime & Federalism; Sui Generis posts a response.

The phenomenon of big clients requiring diversity of their big law firms is not new news. I blogged about it over a year, in this post from July 2005.

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Wal-Mart has informed the major law firms it hires — all 100 of them — that they must impose racial and gender quotas on the "relationship teams" it assigns to the mega-retailer:

The company's general counsel has told its top 100 law firms that at least one person of color and one woman must be among the top five relationship attorneys that handle its business.
...
[Wal-Mart's general counsel], whose department spends about $200 million a year on outside legal services, said he realized he had to do something when he saw that 82 of the top 100 relationship partners handling the company's business are white men.
...
Wal-Mart's new policy signals a growing determination by corporate legal departments to pressure outside counsel. It is no longer enough, the general counsel at the symposium said, to raise the numbers of women and minority lawyers in a firm's lower ranks if its upper echelons remain an exclusive club for white men.

Now I have long been a defender of Wal-Mart in other contexts (one example here), and as a private company they are of course entitled to spend their legal budgets as they see fit. But I wonder whether this new trend is the best approach.

All the classic arguments against reverse discrimination apply to Wal-Mart no less than they apply to government: better qualified candidates are unfairly passed over, those filling the quota — including those qualified for the job — may question their own achievements and status, discrimination is economically inefficient, and so on.

And in the special case of the legal profession, is it realistic to lament the "oppression" of female and minority lawyers? Just how "oppressed" can any lawyer at a top firm — minority, female or otherwise — truly be? (This was a key issue in the recent Supreme Court case Grutter v. Bollinger, 539 U.S. 306 (2003), which upheld open-ended racial preferences, but not quotas, at the University of Michigan Law School.)

In the majority opinion of that case, Justice O'Connor wrote the following:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

I wonder what those 100 law firms will look like 25 years from now, and how much of the difference will be attributable to Wal-Mart and how much to general "progress."

POST SCRIPT: Oh, and why no "gay lawyer" quota?

"Weighing many of the traditional risk factors -- mood disorders, alcohol abuse, recent loss of a loved one, and family history of suicidal behavior -- may not be enough."
--Health Day News (via LiveScience)

It's especially "not enough" when one significant "traditional risk factor" for teen suicide -- the third leading cause of death among teens -- is mentioned nowhere in the piece, namely being gay, especially in an anti-gay home or environment.

Granted, the focus of the piece is on the efficacy and risk of anti-depressants for teens and not the "nature-nurture" debate regarding the causes of teen suicide or teen suicide ideation. Nevertheless, if a kid is contemplating suicide because his parents just told him that he's a "pervert," or a "sinner" or "just confused," then pumping him full of Prozac is unlikely to help. The issues are inseparable.

Harvest the low-hanging fruit first: The medical community -- from the APA to the pharmaceutical companies -- need to confront, not only in doctor's offices and ERs but also in the media, schools and even churches, the literally lethal impact anti-gay bigotry has on gay youth. Worry about which pill to prescribe later.

I was only a small child during the Ford Administration and have little to say about the man or his presidency. But two items in recent media accounts caught me eye:

1. The New York Times' obituary:

Mr. terHorst, the biographer, puzzled over the seeming contradiction between the president's personal and professional philosophies: "The problem with him — he doesn't like to be kidded about it — but the fact is, this guy would, if he saw a school kid in front of the White House who needed clothing, if he was the right size, he'd give him the shirt off his back, literally. Then he'd go right in the White House and veto the school lunch bill."

Why, exactly, is that a "seeming contradiction"? What is contradictory about being perfectly willing, even feeling morally obligated, to help those in need out of your own pocket but reluctant to compel others to do likewise? To assume that your values and priorities are the only "correct" ones and to feel entitled to thrust those values and priorities on others is the height of hubris and a key element of why all politicians are, by definition, moral defectives. Here we have one brief shining moment where a politician actually gets it right, and it's dismissed as a "seeming contradiction." Go figure.*

2. Anyone with even a cursory knowledge of the New York City fiscal crisis of 1975 knows that "Ford to City: Drop Dead" was a figurative headline, not a literal quote. Here's what Ford actually said:

Responsibility for New York City's financial problems is being left on the front doorstep of the Federal Government — unwanted and abandoned by its real parents. ... There can be no doubt where the real responsibility lies. And when New York City now asks the rest of the country to guarantee its bills, it can be no surprise that many other Americans ask why.
...
Let me digress a minute to remind you that under our constitutional system, both the cities and the Federal Government were the creatures of the States. The States delegated certain of their sovereign powers — the power to tax, police powers, and the like — to local units of self-government. And they can take these powers back if they are abused.

The States also relinquished certain sovereign powers to the Federal Government — some altogether and some to be shared. In return, the Federal Government has certain obligations to the States.

I see a serious threat to the legal relationships among our Federal, State, and local governments in any Congressional action which could lead to disruption of this traditional balance.
...
There is a profound lesson for all Americans in the financial experience of our biggest and our richest city. Though we are the richest nation, the richest nation in the world, there is a practical limit to our public bounty, just as there is to New York City's. ... If we go on spending more than we have, providing more benefits and more services than we can pay for, then a day of reckoning will come to Washington and the whole country just as it has to New York City.

Entirely correct. More than correct: wise and prophetic. Possibly the most libertarian speech ever given by an American president in modern times. New York City's imbecilic leaders thought that the laws of economics and finance were subject to repeal by politicians. They were wrong. The rest of the nation owed the city nothing, absolutely nothing.

Now, more than 30 years later, America's imbecilic leaders still think that the laws of economics and finance are subject to repeal. And they are still wrong. Therefore, "a day of reckoning will come to Washington and the whole country" indeed.

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(*For the record, I'm not necessarily arguing against school lunches, which might — might — be justifiable as a legitimate public good for the same reason that elementary and secondary education is justifiable as a legitimate public good. My indignation is not with school lunches, but with the characterization of Ford's position as a "seeming contradiction.")

Time to clean out the aggregator:

ITEM: The Supreme Judicial Court of Massachusetts threw out Governor Mitt Romney's litigation seeking to compel the state legislature to vote on a bigot amendment. Which was entirely expected and entirely proper under the separation of powers doctrine. The rank hypocrisy of the bigots in appealing to "activist judges" is astounding. Next on the agenda: evangelical theocrats selling out "not really Christian" Romney (a Mormon) in favor of fellow bigot, activist legislator and "true Christian," Kansas Senator Sam Brownback. Stay tuned...

ITEM: Richard Branson lost his bid to start a discount domestic airline in the U.S. Background here. Branson complied with all the (stupid) rules regarding ownership and control and still got denied. Remember always: Antitrust and similar laws restricting free markets are designed to protect competitors, not competition. With consumers as collateral damage.

ITEM: I blogged recently about our socialist dairy system that ensures that poor people never pay "too little" for their milk. Well, in all fairness let it never be said that they will ever pay "too much," either:

The state-recommended price of a gallon of whole milk is rising to $3.14 on Jan. 1, New York milk producers say.
...
State officials set a recommended, or threshold, price for milk every month. Retailers may charge more only if they can show the state their overhead costs justify higher prices.

Some of us think that supply & demand "justify" higher (or lower) prices. Silly us. Meanwhile, since the laws of economics are not subject to repeal by any legislature (or milk bureaucracy), an artificial price ceiling will, inevitably, lead to a shortage -- like this one.

So John Edwards is running for president again.

Yawn.

I have little to say about the announcement that I didn't already say in the last presidential campaign.

Except to note:

1. How astonishing — and depressing — it was to see a man intentionally making divisiveness the core theme of his campaign. It is wrong when conservatives do it ("us versus gays," "us versus immigrants," "us versus Muslims"), and it's wrong when liberals do it ("us versus the rich," "us versus Wal-Mart," "us versus Wall Street"). September 11th wasn't so long ago that such categorizations are proper.

2. Becoming a successful multi-millionaire, while hardly a sin, is also not "selfless public service." Such spin was a crock when Bill Frist tried it; it was crock when John Edwards tried it and will still be a crock should he try it again. All politicians are, by definition, moral defectives. Being a rich trial lawyer beforehand is hardly an offset.

3. I sincerely hope that, one way or the other, the Edwards campaign will set the record straight on whether he ever did any pro bono work while he was making his millions "defending the little man." I'm fairly certain that Edwards would have corrected the media reports had they actually been incorrect. But perhaps not. In any event, he has a second chance — and voters should demand a straightforward answer.

More thoughts from PoliBlog.

UPDATE: Edwards' campaign site is now live. The biographical section contains the following --

For the next 20 years, John dedicated his career to representing families and children just like the families he grew up with in Robbins. Standing up against the powerful insurance industry and their armies of lawyers, John helped these families through the darkest moments of their lives to overcome tremendous challenges. His passionate advocacy for people like the folks who worked in the mill with his father earned him respect and recognition across the country.

It also earned him tens of millions of dollars. Which, again, somehow qualifies him as a "selfless public servant."

Meanwhile, the website's search function yields no results for the term "bono."

The High Priest of All Things Fake gets a dose of his own hucksterism:

When [Donald Trump] launched Trump Mortgage in April, he said it would inject integrity into an industry that has the reputation for giving customers a raw deal.

To head the mortgage broker, Trump hired E.J. Ridings, who the company's Web site touts as a seasoned pro.
...
In interviews with Money and on his company's Web site, Ridings has made a number of false or misleading claims about his professional experience. Last week, following inquiries by Money into Ridings' background, Trump Mortgage altered its Web site, removing some of the claims it contained about Ridings' past employment.

On Wall Street, where real financiers deal with real money and not fantasy games and media ballyhoo, we actually check résumés. Go figure.

Speaking of Wall Street:

Ridings, 42, has never been a top professional on Wall Street. Ridings, in an interview with Money in September, said the "top-executive" reference in his bio refers to an 18-month period in which he was a retail stock broker at Morgan Stanley.

But even that is a significant stretching of the truth. According to documents from the New York State Attorney General's office, Ridings worked at Morgan Stanley's brokerage subsidiary Dean Witter Reynolds in the fall of 1998 for less than three months. During that time, he was a registered broker for six days before leaving the firm.

That's the equivalent of what, two episodes of The Apprentice?

I will never understand why people idolize this clown.

(Via DealBreaker.)

(Originally posted August 23, 2006 -- updated below.)

A federal appellate case that one would have thought would be of interest only to scholars and specialists has suddenly broken out into the general domain:

The federal government may not tax the money plaintiffs receive as compensation for emotional distress and other intangible injuries, a federal appeals court said Tuesday.

The U.S. Court of Appeals for the D.C. Circuit struck down as unconstitutional a portion of the tax code that said only compensation for physical injuries is tax exempt.

Let the record reflect that I had pondered a similar question in passing recently:

Should tort awards ever be tax-exempt? The debate rages on. It seems to me that if the goal of compensatory damages is to make the plaintiff whole, then they should of course be tax-exempt.

But I want to focus on a different aspect of this litigation — the standard of review.

You won't find it anywhere in the decision, but both the trial court and the appellate panel used rational basis review — quite proper, since there was no discrimination against a suspect class and no infringement upon a fundamental right.

Here's what the appellate panel did say on the subject:

At the outset, we reject the Government's breathtakingly expansive claim of congressional power under the Sixteenth Amendment — upon which it founds the more far-reaching arguments it advances here. The Sixteenth Amendment simply does not authorize the Congress to tax as "incomes" every sort of revenue a taxpayer may receive. As the Supreme Court noted long ago, the "Congress cannot make a thing income which is not so in fact." Indeed, because the "the power to tax involves the power to destroy," it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income. [Internal citations omitted.]

Some people define rational basis review as an obligation by judges to uphold a law or regulation — or tax — if any plausible justification for it can be identified or even imagined.

And still the panel struck down the tax on damages for emotional distress — as an irrational act by the IRS.

So, even in the presence of what is, for better or for worse, an unambiguous and plenary federal power — the power to tax "income" — a judge still has the authority, and indeed the obligation, to block irrational government definitions of "income," no matter how much purported authority underlies such definitions. A judge can substitute his own view for that of legislators or bureaucrats when those views simply make no sense.

That is not being an "activist judge." That is doing precisely what judges are expected to do

The read-through to gay marriage litigation is obvious. Even where heightened scrutiny is deemed unwarranted, rational basis review still applies. And by definition "rational" means that which is not "irrational." Where the government (or the electorate) acts irrationally, as was the case in both the New York and Washington same-sex marriage bans, judges may — must — counteract such irrationality. That is not "turning courts into superlegislatures" or "legislating from the bench" or whatever other gobbledygook a majoritarian absolutist might blather. It is instead the very meaning of the terms of statecraft and civics that we claim to cherish — "separation of powers," "checks and balances," "judicial review."

The Constitution grants government, in limited ways, the power to act. But it never grants government the power to act irrationally. Never. So when the government, or the majority, acts irrationally, it always acts unconstitutionally. Always.

And those who are harmed by such irrationality have the prerogative to demand redress, and judges have the prerogative — indeed the duty — to grant it.

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The case is Murphy v. IRS, No. 05-5139 (D.C. Cir., August 22, 2006) (PDF - 24 pages). More thoughts (but mostly "tax thoughts") from Balkinization, Tax Prof Blog, Decision of the Day, ACSBlog.

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UPDATE: In what apparently qualifies as stunning news by appellate court standards, the panel that decided the case has, on its own motion, vacated the decision and ordered a rehearing of the case. Which would suggest that the deluge of expressions of bewilderment and disagreement were received. Stay tuned. (Via How Appealing; see also Decision of the Day, ACSBlog.

TO CLAIM YOUR SHARE OF THIS FUND, YOU MUST SUBMIT A VALID PROOF OF CLAIM AND RELEASE ("PROOF OF CLAIM") POSTMARKED ON OR BEFORE DECEMBER 21, 2006.
--IN RE CISCO SYSTEMS, INC. SECURITIES LITIGATION, "NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION," received in the mail December 26, 2006

One would think that Gilardi & Co. LLC, "the nation's largest, sole-purpose administrator of class/mass action settlements," could mail their documentation to potential class members in a timely fashion.

On the other hand, class members like me are not Gilardi & Co. LLC's clients. Lerach Coughlin Stoia Geller Rudman & Robbins LLP — a/k/a We're Heroes Because We Sued Enron, Arther Andersen And All The Evil Investment Banks, Even Though That Was Back When We Were Milberg Weiss And Before Some Of Us Got In Trouble With The Law, LLP — is Gilardi's client.

And why should Lerach "We're Not Really Milberg Weiss" Coughlin care? After all, they get their $15 million in attorney fees (plus up to $8.9 million in expenses) whether I and my fellow class members receive our forms early, late or never. Who's going to sue them for malpractice? And who would represent them? Another class action firm? Unlikely.

It appears that I would have been entitled to about $435 had I received the forms in a timely manner. The embarrassment I feel as a lawyer from witnessing such negligent handling of a major piece of litigation by such large firms — firms that portray themselves as "experts" in this very category of lawsuit — is far costlier.

...Does "making people weep for the future" count?


The sad part isn't even so much the jackhole kid himself, but all the other jackhole kids who cheered him afterwards.

So apart from the not-quite-tort of "tree griefing," what other crimes and torts does this embarrassing component of the gene pool face? If I were in a Mike Nifong mood, I might go for "attempted suicide" (which, to the consternation of libertarians, is a bona fide crime).*

Note also how many video cameras were pre-positioned on the tree -- obviously a Vast Tree-Griefing Conspiracy. Assuming foreknowledge can be shown, should the videographers face punishment too?

(Via Boing Boing.)

*"Tree-rape" would be a stretch -- except maybe for Nifong, that is.

I always get into trouble when I blog about DUI laws. It seems that suggesting any curbs on the right to hurl multi-ton slabs of metal down public roads at lethal speeds immediately revokes your libertarian credentials in some circles.

Richard Posner sums up the libertarian argument as succinctly as anyone I've ever seen:

Why punish the 99+ percent of drunk driving that is harmless?

Would that it were so simple.

Posner's counterpart, Gary Becker, has it exactly right:

But drunk drivers often kill or injure persons in other cars, or pedestrians, and in this way they impose what are called negative externalities on these innocent victims. This is the main case for public policies to reduce drunk driving and other externality-causing driving behavior.

Precisely. Most people, including most libertarians, gladly acknowledge in every other context the rights-based principle that reckless conduct is properly proscribable when such conduct generates clearly observable and quantifiable negative externalities. But apply that premise to the context of people's cars, and suddenly we live in a dystopic tyranny.

Here's the comment I left at Posner's post:

It seems to me that Judge Posner is arguing against the very propriety of "reckless endangerment" as a broad category of crime.

Whom do I harm if I let my large dog run around public spaces off leash? So why have leash laws at all and not just punish post facto dog bites instead?

Whom do I harm if I frolic down the street brandishing a loaded firearm? So why make that an offense unless and until the weapon accidentally goes off and harms person or property?

Whom do I harm if I drive drunk? Same analysis, same absurd result.

There is no "right to just two beers." Imposing harm, even probabilistic harm, on others is grounds to curtail the behavior that generates the harm. Particular laws may, either facially or as applied, be too harsh or too lenient, well-reasoned or ill-advised. But to dismiss any and all DUI laws outright and a priori crosses the line between libertarianism and anarchism.

Crooks and Liars cites to this Ezra Klein op-ed and concludes:

I do think we've reached a point at which a critical mass of the American middle class understands the system is seriously bleeped and is willing to listen to options. Unfortunately the Vast Right Wing Conspiracy still has a tight enough grip on news media that it damn near impossible to have the dispassionate national discussion on health care we need to be having. As soon as the phrase "universal health care" leaves anyone's lips, you can count on a right-wing goon to be standing nearby to shout it down.

Right-wing goon? Me? Whatever.

First off, Klein does not actually argue for universal health care (Goon shout! Goon shout!) -- at least not overtly. He argues for reform, which does not inevitably mean "universal health care." (Goon shout! Goon shout!) Reform means, um, reform. One alternative might be universal health care (Goon shout! Goon shout!), and Klein cites to some examples, but merely as examples and not necessarily as recommendations. Indeed, he dismisses one proposal as "a bad plan."

But universal health care (Goon shout! Goon shout!) would be a disastrous type of reform, for the simple economics-metaphysics reason that all scarce goods must be rationed. Under universal health care (Goon shout! Goon shout!), the rationing will done by politicians and bureaucrats, not by patients, doctors or even "greedy" insurance companies. That scares me more than any disease.

In any case, the far more useful takeaway from the Klein piece (and of course totally ignored by the C&L poster is how the present system came about in the first place:

It blossomed out of a World War II tax reform meant to guard against corporate war profiteering. Liberals, with their usual combination of good intentions and inadequate foresight, imposed massive marginal tax rates on corporations, effectively freezing their profits at prewar levels. But the law had a loophole: Corporations could funnel their wartime riches into employee benefits, such as healthcare, thus putting the cash to use within their company. And so they did, creating the employer-based healthcare system.

In other words, the mess of a system was directly created by the federal government in the first place. Go figure.

And now, is a stunning leap of logic (faith?), proponents of universal health care (Goon shout! Goon shout!) go from:

"The current government-created system of health-care finance doesn't work..."

to

"...We must therefore replace it with a government-created system of health-care finance."

It boggles the mind.

---

The better way to reform health care finance is simply to get employers out of the health care benefits business altogether (i.e., by eliminating their government-crafted tax advantage). Return to tax-neutral, cash-based compensation (and competition) and let employees buy (competitive) health coverage directly, no different than homeowner or automobile insurance. The poor can be accommodated via Medicaid or similar programs.

The only reason employees can be "exploited" by "greedy" insurance companies is because employees are, thanks to the federal government, a captive market -- they are not the consumer; the employer is. Change that, and most of the rest will follow. In other words -- undo the damage done by government in the first place.

Universal health care (Goon shout! Goon shout!) is simply not the predestined, or even the optimal, solution.

Back by popular demand (not really), it's Phallic Santa!



---

Some "Christmas in New York" pictures I took last year:


Cartier...


The (new) McGraw-Hill Building (I'm still hoping that someday they'll knock down the old one)...


1271 Avenue of the Americas (a/k/a those clowns over at Fidelity)...


Radio City Music Hall (every so often the cannon "fires" and the soldiers all fall down — a scene from one of the Rockettes' skits in the Christmas Spectacular)...


The Nutcrackers of my greedy Swiss bank employer. Fans of "Will & Grace" might recognize the building. Yes, at least one gay lawyer really does work there...

Merry Christmas everyone!

A quick follow-up to my recent post about chocolate-covered goodies, courtesy of Protean:

The hershey's kisses that come wrapped in silver foil taste better than the ones wrapped in red or green foil.

Is this some sort of "negative placebo effect," or might there be some reality-based explanation for this observation?

--Might Hershey know that holiday Kisses are more likely to be consumed by children, whose palates are less discriminatory, and therefore be willing to cut corners? (Which is likely the same reason Easter chocolate generally tastes so rancid.) Would it be a wise business strategy for Hershey to do so?

--Might "Christmas Kisses" be manufactured (or purchased by wholesalers) year-round and warehoused until Christmas, affecting the taste?

--Might there actually something about the different foils that affects the taste of the chocolate?

--Other explanations?

Thoughts?

---

Speaking of substandard candy:

Anybody remember "Monster Bone"?


Monster Bone was a Christmas present for Diamond from a fellow blogger, although I kept it in reserve until March.

Well, another Christmas is around the corner, so let's check in on Monster Bone:


Even Diamond's impressive carnassials are no match for Monster Bone (and believe me, she gnaws on it every day).

Still, another Christmas means another gift:


The cheeseburger toy has a special significance in my family. It was the favorite toy of Diamond's predecessor, Muttley:


Muttley promptly destroyed every toy we ever game him — except the cheeseburger. He could never pierce it, and he never tired of it, year after year.


Muttley passed away three years ago at the proud old age of 15. Rest in peace, former best dog in the world...

And we'll check in on Diamond and cheeseburger every so often.

For Discussion: Do your pets get Christmas presents?

Rest assured that the federal government is keeping your air travel safe -- from lower fares (WSJ - $):

Virgin America Inc., the brainchild of Britain's Sir Richard Branson, expects federal authorities to reject its application to start a low-cost airline in the U.S. amid concerns that foreigners such as Mr. Branson would wield too much influence.

U.S. law requires that Americans control domestic airlines flying within the country. The Bush administration has tried to change those rules but recently said that it was dropping the effort given intense opposition in Congress and elsewhere.

It's a good thing we have politicians and bureaucrats to stop Branson! How horrible it would be if a Briton* made it possible for us to save money on our air fares!

Of course, it would indeed be horrible -- for some:

Politically, the application comes at a sensitive time for the Transportation Department. It had wanted to loosen foreign control regulations in hopes of both attracting more foreign investment and sealing an open aviation agreement with the European Union. But opposition from labor unions and other concerns persuaded Congress to block the move.

These are the same whiny union brats who are opposing USAirways' proposed buyout of (bankrupt) Delta Air Lines. Go figure.

*Incidentally, Branson does not control the airline at all -- he is a silent investor and is fully complying with the (asinine) limits on foreign control. And the government is still likely to block him anyway. "Dedicated public servants" indeed.

Remember the gun-toting hack politician who pulled over a school bus full of children because "he wanted a hug"?

Well, here's the antipode:

The following is the transcript of the 911 phone call between City Council Member Brian Gullickson and Otter Tail County Dispatch the morning of Dec. 17. An officer was attempting to pull him over for expired license plate tabs, according to Fergus Falls Police Department.

Gullickson, 39, refused to pull over and called 911. He was arrested for fleeing a police officer, obstructing the legal process, third degree DWI refusal and no current registration. He was freed on $500 bail Monday.

911: Otter Tail 911. Where is your emergency?
...
BG: Ah, I have a cop that's following me and I've done nothing wrong.
...
911: But you need to, you need to stop the car, sir.

BG: Ah, ma'am, I've done nothing wrong so I'm not stopping.
...
911: You have to pull your car over.

BG: No I don't.
...
911: Yes you do.
...
BG: Nah, they don't want to mess with me.

911: Pull your ...

BG: (Inaudible) have no idea who they're (inaudible).

We can reasonably extrapolate the likely content of the "inaudibles." So remind me again how politicians are "dedicated public servants" and not megalomaniacal moral defectives?

(Via Fark.)

---

Speaking of politicians and vehicles:

[New York] State Comptroller Alan G. Hevesi is planning to resign and plead guilty to a felony to settle a criminal inquiry into his use of state workers as chauffeurs and personal aides for his wife, a Democratic state official said today.

Lawyers for Mr. Hevesi, a Queens Democrat, have been in talks with prosecutors from the Albany County district attorney's office this week, trying to head off an indictment by a grand jury that is expected to be handed up on Friday.

And this was the "dedicated public servant" who was responsible for ensuring that the state's books were on the up-and-up. Incidentally, he was overwhelmingly re-elected last month. The only thing worse than hack politicians are the hack voters who elect them. (See also here and here.)

Pope Benedict's idea of "good will toward men" —

The Pope said granting legal recognition to unwed couples was a threat to traditional marriage, which required a higher level of commitment.

But he saved his strongest words for those who suggest gay couples should be put on the same level as a husband and wife.

"This tacitly accredits those dismal theories that strip all relevance from the masculinity and femininity of the human being as though it were a purely biological issue," the Pope said.

Of course, to the Vatican, "the femininity of the human being" is also their centuries-old excuse for subjugating women — an idea that ought to be dead and buried, but like Christ always manages to resurrect. I suppose it's also their adherence to "masculinity" that somehow rationalizes their never-ending boy-rape scandals.

In other words: "masculinity and femininity" trump dignity and autonomy. Because God loves you.

Every single element of Roman Catholic dogma can be traced back to a single, monstrous premise: That happiness in heaven can only be achieved through misery on earth. The Vatican is the most sophisticated madhouse ever devised by man. It is in fact more than a madhouse; it is a factory for creating madmen. Century after sadistic century.

That is not a "dismal theory." It is a dismal fact.

More thoughts from Straight, Not Narrow.

It looks like the Boy Scouts might get dinged by the California Supreme Court yet again:

[T]he California Supreme Court has been asked to look at ... whether the Scouts are a religious organization ineligible for certain types of government aid, including dollar-a-year leases of public land.
...
The Boy Scouts' exclusion of gays and atheists was upheld in 2000 by the U.S. Supreme Court, which ruled that the constitutional right of freedom of association entitled the organization to maintain its principles, including its views of morality and religious faith. But other courts have ruled since then that government agencies are not required to ignore the Scouts' policies or treat them equally in all programs.

The specific legal issues are not quite the same here as in the recent "Sea Scouts" case, but the broad principle underlying both fact patterns is exactly identical: If you want the freedom to discriminate that comes with being a "private" entity, then do so with your own private dollars and on your own private property -- leave the government and the taxpayer out of it. A "right to bigotry" does not extend to a "right to taxpayer-subsidized bigotry."

And while we're on the topic of "taxpayer-subsidized," the Bush Justice Department has filed an amicus brief siding, of course, with the Boy Scouts. To be filed under "morally straight..." (or, alternatively, "Do a good turn daily...").

The case is Barnes-Wallace v. Boy Scouts of America, No. 04-55732, 04-56167 (9th Cir.).

(Via How Appealing.)

"On Earth, petroleum once turned petty thugs into world leaders."
--Star Trek: Insurrection

"A man's called a traitor -- or liberator.
A rich man's a thief -- or philanthropist.
Is one a crusader -- or ruthless invader?
It's all in which label is able to persist."
--Wicked, "Wonderful"

To review: The United Arab Emirates is our ally --

Voting has begun in the second stage of landmark national elections in the United Arab Emirates, in which under 1% of citizens are allowed to vote.

Voters hand-picked by the government are choosing half of the Federal National Council, an advisory body. ... The candidates standing for election were also hand-picked by the Emirati government.

Meanwhile, Iran is not our ally:

Final results in the election race for Tehran City Council on Thursday showed allies of Iranian President Mahmoud Ahmadinejad had gained the fewest seats among the main political groups.

Analysts see the results, which confirm preliminary counts, as a political setback for the anti-Western president and a possible sign of public frustration with Iran's increasing diplomatic isolation and economic woes.

Although Friday's elections for local councils and a powerful clerical body known as the Assembly of Experts will not have a direct impact on policy, they may encourage moderate voices to challenge the president more forcefully.

I'm not saying Iran should be our ally. My only point is that it's a fine, and generally arbitrary, line between allies and non-allies in that region. Which is what happens when you suddenly bathe pre-modern nomadic goat-herders with billions upon billions of your dollars while trying to wage a Cold War followed by a War on Terror.

Petrodollars make for very strange bedfellows indeed.

POST SCRIPT: Back to the UAE for a moment --

The Gulf emirate of Ras al-Khaimah has introduced a new dress code targeted in part at people wearing pyjamas to work.
...
Starting on 1 January 2007, civil servants in the emirate will have to wear national dress -- a long white robe for men and the black abaya for women.

Expatriates will be required to wear suits and ties.

Yes indeed -- democracy is certainly on the march among the goat-herders of the UAE.

"Three hundred days a year they are happier than investment bankers. But when bonus season rolls around the journalists realize there is a price to pay for their career decisions. The highest paid editor at The New York Times makes less than what the lowest paid analyst at Goldman Sachs makes."
--John Carney, editor of financial blog dealbreaker.com

Remind me again how "professional journalists" -- who face none of the licensing, educational or codified ethics requirements that investment bankers must adhere to -- are somehow more "noble" creatures that us Wall Streeters, especially if it is true that petty jealousy clouds their occupational integrity?

Speaking of creatures:

"I wish I could pass some law restricting bonuses," said Councilman Charles Barron (D-Brooklyn)[.]

All politicians are, by definition, moral defectives. A politician -- who creates and catalyzes nothing in the economy -- passing judgment on the people who, arguably, catalyze everything in the economy?

Madness. Sheer madness. I hear more enlightened worldviews from kindergartners fighting over toys on the playground.

Of course, if the hack politicians and would-be central planners keep strangling Wall Street with ludicrously high taxes, irrational property restrictions and other regulatory impediments, then you might indeed see those bonuses vanish.

From New York City, that is.

A disturbed dictator oppressing his country, located in a strategically critical part of an unstable, oil-rich region, is toppled — without a single American casualty!

No, not Bizarro-Iraq, but Turkmenistan:

Turkmen President-for-life Saparmurat Niyazov has died, Turkmenistan state-controlled television said on Thursday confirming an earlier report from a government source.
...
Niyazov, 66, had been in power in his reclusive Central Asian state — the second largest natural gas producer in the former Soviet Union — since 1985 before independence from Moscow.

He tolerated no dissent and enjoyed a flourishing personality cult with thousands of portraits and statues to him throughout the country.

As a reminder, Turkmenistan borders both Iran and Afghanistan. And yet nobody here seems to have heard of it? (Hint: No, it's not where Borat comes from.)

It was fun over the past two years to mock Niyazov's narcissistic antics — penguin sanctuaries in the desert and such. But it is time to put humor aside:

Turkmenistan has never held an election judged to be free and fair by foreign monitors. Until the new polls, which have to be held within two months, Deputy Prime Minister Kurbanguly Berdymukhamedov, 49, will be acting head of state.

But Niyazov, who held all top posts, left no designated heir and his sudden death raised concerns about the transfer of power in the ex-Soviet nation of 5 million[.]

We all know about the depletion of our military resources due to the Iraq debacle — but clearly our diplomatic resources (not to mention our goodwill throughout the world and particularly in this region) must also have been depleted. Nizazov's death could have been a golden opportunity to help foster a true democracy when there was none before, and perhaps even make inroads with Turkmenistan's neighbors.

From "Mission Accomplished" to "Opportunity Squandered"?

Stay tuned...

More thoughts from Distributed Intelligence.

I thought religious relic worship couldn't get any sillier than the news that the Russian Orthodox Church had found the lost hand of John the Baptist.

I was wrong:

In 1983, as the residents of Calcata, a small town 30 miles north of Rome, prepared for their annual procession honoring a holy relic, a shocking announcement from the parish priest put a damper on festivities. "This year, the holy relic will not be exposed to the devotion of the faithful. It has vanished. Sacrilegious thieves have taken it from my home."

Not since the Middle Ages, when lopped-off body parts of divine do-gooders were bought, sold, and traded, has relic theft been big news. But the mysterious disappearance of Calcata's beloved curio is different.

This wasn't just the residuum of any holy human — nor was it just any body part. It was the foreskin of Jesus Christ, the snipped-off tip of the savior's penis, the only piece of his body he supposedly left on earth.
...
Facing increasing criticism after the "rediscovery" of a holy foreskin in France, the Vatican decreed [in 1900] that anyone who wrote about or spoke the name