February 20, 2004
VII, by e.e.cummings:
since feeling is first
who pays any attention
to the syntax of things
will never wholly kiss you;
wholly to be a fool
while spring is in the world
my blood approves,
and kisses are a better fate
lady i swear by all flowers. Don't cry
--the best gesture of my brain is less than
your eyelids' flutter which says
we are for each other: then
laugh, leaning back in my arms
for life's not a paragraph
And death i think is no parenthsis
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The New York Times Magazine has a gripping article this week about people living to very old ages, and about some implications for society if the life span keeps increasing. One shocking statistic in the article is that the chance of getting Alzheimer's disease is 50/50 after age 85. Which is much, much higher than I would have imagined. A thought-provoking note in the article:
increased longevity might stunt the development of a society's younger generations: in a world populated by able-bodied and able-minded centenarians, their aging children might remain ''functionally immature 'young adults' for decades, neither willing nor able to step into the shoes of their mothers and fathers.''
Interesting. The whole article's interesting, really. Hopefully there's a large-print version available for all the people mentioned in it.
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I recently finished Cass Sunstein's latest book--Why Societies Need Dissent. Sunstein's basic thesis--that dissent is crucial in a properly functioning society--is obvious enough from the title. What makes this book interesting and useful is its attempt to show that dissent is often in short supply. The primary organizing framework of the book is the behavioral literature on cascades and group polarization. Sunstein pulls from this literature to show how and why people tend to conform. Sometimes conformity and reliance on cognitive shortcuts can be entirely rational and even beneficial. In other instances, though, reliance can lead to systematic errors. What is needed to break these error producing cascades, Sunstein says, is dissent.
Even if you are familiar with Sunstein's previously published works applying the behavioral literature on cascades to other issues (e.g. risk), there is still a lot to digest in this most recent piece. Of particular interest to me were some of the studies citied in the chapter titled The Law of Group Polarization. The other chapters with a good deal of new and interesting material are the final two chapters, titled Are Judges Conformists Too? and Affirmative Action in Higher Education. (For more on the issue of judges and conformity, see Sunstein, Schkade, and Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation (forthcoming in the Virginia Law Review)).
Overall: recommended. If you are not familiar with the relevant behavioral literature or you are new to Sunstein: highly recommended.
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This may be one of the oddest articles I've ever read. From today's Chicago Sun-Times: "Advocates for deaf charge censorship in closed captioning"
The Bush administration has cut off its closed captioning for nearly 200 TV shows, prompting charges of secret censorship to promote an ideological agenda.
According to the article -- and this is all news to me -- closed captioning is provided largely by the Department of Education, and officials who have been lax in the past, approving things like the Jerry Springer Show, are now "acting on the 'intent of Congress' to limit captioning to 'educational and informational' programming."
Some critics have wondered if religious fundamentalists may have disapproved of "Bewitched" and "I Dream of Jeannie" because of their sorcery and witchcraft.
The article links to a page at the National Association of the Deaf website that has a complete list.
OUT: The Simpsons, Malcolm in the Middle, Judge Wapner's Animal Court, Baseball, Football, Nascar, Basketball, and Golf.
IN: Inside Edition, Tommy Tang's Let's Get Cooking, Amazing Animal Videos, and Barney and Friends.
Who could be against closed captioning??
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Waddling Thunder ponders some grade-disparities at HLS and Oxford. I don't know enough to say whether his hypotheses are right, but I saw this:
The men, on the other hand, whether or not they had done a lot of work, would consistently produce extremely risky, somewhat novel exam papers. A lot of it was complete rubbish, of course. They would make up facts, insist on interpretations that didn't make sense, make wild and pointless claims, and so on.
And I thought-- yup, that's me! And that's definitely the paper on military tribunals I'm about to go turn in. Anyway, if Waddling Thunder's generalization (roughly, that men are more willing to talk out of their backsides) is correct, mightn't it also explain the male domination of the blogosphere?
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I haven't joined into the 9th-Amendment debate (kindly catalogued here in its full glory by Steve Dillard) yet because I simply haven't got much to say.
My own tendency, like the Curmudgeonly Clerk's, is to interpret clauses literally whenever possible. But I'm also aware that people very rarely actually do that. Who (not even Hugo Black) really maintains that the "Congress shall make no law . . . abridging freedom of speech, etc." really means no law? I mean, even I waffle on that question (I tentatively think perjury laws are Constitutional as a textualist matter).
That said, I think the best point in the debate was made by Matthew Yglesias:
Clearly, they came up with a system of government that works pretty well, and they deserve to be congratulated on that, but many bits of constitutional text look pretty dubious. I think it's hard to deny, in retrospect, that whatever this particular passage (see also Amendment II for perhaps the best example) means, that meaning could've been stated.
Not that modern proposed amendments (FMA, I'm thinking of you) are much better on that score.
So anyway, my tentative assumption is that the widespread judicial consensus and superficial reading are probably the correct one, but I fully admit that I simply haven't done the all-important historical reading or investigation I would have to figure out if Randy Barnett and Tim Sandefur in fact have the right facts. I mean, it would certainly be nice if they were right.
Myself, I'll hang my hopes on the Privileges and Immunities Clause.
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They all (rightly) point out that Sanchez's analogy breaks down (as analogies ultimately do) because bricks and blank screens don't turn to houses or blog posts if simply left to their own devices. Fair enough.
We can quibble about whether or not fetuses really turn into people when left to their own devices, or whether it requires active care on the part of the mother. (And whether not-aborting or purposefully miscarrying your child is the only "ordinary course of things.") This is in some sense begging the question.
But if this is an important distinction, the quip isn't difficult to fix. One could simply say (as Blackburn does) that a car is "potential scrap" (since it will rust to pieces eventually) or that a walking person is an "un-dead corpse" (although not in that sense of "undead"). Or, if you'd rather, that a bachelor seeking to marry is an "unmarried husband."
Take, for example, the meat I had cooking on the stove earlier today. If left alone, it would have become uselessly and inedibly charred. It was, in other words, a potential smoking inedible mass. It was an "unburnt useless lump." But this would be a very odd way to refer to it, rather than to simply call it a simmering bit of ground lamb and onion, which is in fact what it was.
The real point is that just because thing A will later become thing B, and even if this process is somehow the "ordinary course of things," that doesn't particularly prove that thing A should be treated like thing B, or even that it makes sense to refer to thing A as a type of thing B.
And Sanchez's real point-- that "unborn children" is a locution that pro-choicers shouldn't want to catch on-- is still spot-on for those who care about such things.
Maybe this post has risked becoming actually substantive, so I'll stop it here.
Well, okay, I'll add one point of substance. The Virginian, hoping to "clarify what seems to be an often misunderstood position," reminds us that:
for many pro-lifers, the issue is not one of having their view of what is and is not a human life win out; rather the issue is preventing people from doing a wrong that harms another, even if they don't realize what they are doing is wrong.
But, of course, the exact same thing is true for many pro-choicers. They, too, want to prevent people (those who would ban abortion) from doing a wrong (denying a liberty right) that harms another (the pregnant woman in question). This doesn't make the debate itself any less intractable.
In any case, my point is that given their starting assumptions, for the most part, pro-lifers and pro-choicers both come to relatively reasonable conclusions. And given how little anybody can productively argue about those starting assumptions, the abortion debate will largely be won and lost on fronts other than reasoned logic. It will be public sentiment, moral intuition, and (especially) political force that carries the day. Which makes bickering about abortion on blogs sort of silly. Something I learned in my time from Ms. Sara Butler.
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Thanks to Will for inviting me to share in the fun this week. I thought I'd jump right in, since it's been almost six days since I've had the chance to post to a group blog and I've been missing the excitement. Will will be happy to know that in preparation for my guest-blog stint, I threw away all of my domestic pasta.
For anyone who wants to buy Beth's Saddam Hussein action figure, incidentally, but is worried he'll get lonely without anyone to play with, there's also 12-inch Osama (they're referring to his height, I hope), the George W. Bush "Top Gun" action figure, and a shovel so you can dig your very own underground hideaway. Shockingly enough, this shovel I'm linking to claims to be NATO-approved -- unfortunately, I have no idea if that's the same NATO we're thinking about or if it's the National Association of Tent Owners. But still, it ought to count for something.
I also figured I couldn't go wrong by mentioning abortion in my first post. I wanted to quibble with Will's link to the Julian Sanchez quote saying fetus is to "unborn child" like pile of bricks is to "unbuilt house" or blank screen is to "unwritten blog post." It's great rhetoric, and I'm not trying to make a political point here at all, but it seems to me there's a pretty big difference -- if you let the bricks sit there for nine months, there's still no house, and if you leave the blank screen alone, you ain't getting a blog post. Well, maybe on some blogs. But you're not getting anything like the awesome stuff you get here. Isn't that impressive the way I went from abortion to brown-nosing in three sentences? Seriously, and not a political point, the analogy just didn't work for me.
In any event, hopefully I'll be able justify my guest-blog slot here this week, and come up with some interesting stuff to say....
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I'm very pleased to make two announcements, both related to the unfortunate demise of En Banc. The first is that Mr. Jeremy Blachman (formerly of En Banc) will be Crescat's newest guest-blogger starting sometime today, as our current guest Ben Glatstein is going to be forced to cut his visit a little bit shorter than usual (though he will hopefully get in a few more wonderful posts!). I hope y'all enjoy Jeremy's posts too-- as usual, feel free to email me (or him) with any thoughts.
The second announcement is that Mr. Greg Goelzhauser (who guest-blogged here in December, and is also formerly of En Banc) will also be joining us starting today, as the newest permanent member of Crescat Sententia.
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When Howard Bashman emailed me to tell me he had a post up about Richard Posner and undergarments, I didn't realize he was serious. Actual dialogue from argument in Leslie D. McPherson v. City of Waukegan:
"What color is your bra? Does it match your panties?"
Are you speaking to Judge Posner?
[Details on How Appealling.]
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I hate to differ with Interested-Participant, but I believe that Judge Wood's opinion supports what I had to say earlier. Thus, I shall differ.
1) IP states, inter alia: "collusion on distribution of products is not illegal under antitrust laws. That's news to me because it sure seems unfair."
2) I reply, inter alia, that IP "is probably unrealistically disappointed in the antitrust laws." I did NOT say that Wood's TRU opinion was dispositive, merely that it "touches on lots of interesting facets of the toy business." Further, my conclusion was that "we can't have a per se rule about exclusive dealings when there may be tremendous benefits associated with the facially anticompetitive behavior."
3) IP replies that "Judge Wood's decision discounts free riding as being adequate justification for vertical agreements in the toy business. In fact, in the toy business, it doesn't even exist. . . So, not only is Mr. Glatstein's argument not supported, the court's ruling is diametrically opposed to it."
Now, to respond. First, it would be very neat if the theory that we allow exclusive distributorships (sometimes) to prevent free-riding was mine. Unfortunately, despite IP's assertion, it is not. The Supreme Court recognized the force of this argument in Continental TV v GTE Sylvania, 433 US 36 (1977).
Moving on to Judge Wood's opinion... I quote The Judge herself:
"What the manufacturer does not want is for the shopper to visit the attractive store with highly paid, intelligent sales help, learn all about the product, and then go home and order it from a discount warehouse or an on-line discounter. The shopper in that situation has taken a "free ride" on the retailer's efforts; the retailer never gets paid for them, and eventually it stops offering the services. Hence, antitrust law permits nonprice vertical restraints that are designed to facilitate the provision of extra services, recognizing that a manufacturer in a competitive market who has guessed wrong will eventually be forced by the market to abandon the restrictions." 221 F3d 937-38.
I don't know how that is diametrically opposed to what I wrote... It's actually pretty much the situation that I was describing. It's true that Judge Wood found that procompetitive justifications for the exclusive dealings did not outweigh the harms (since she found there were no procompetitive dealings, as IP noted). But again, my point was narrow: "we can't have a per se rule about exclusive dealings when there may be tremendous benefits associated with the facially anticompetitive behavior." Judge Wood's opinion supports this.
IP is correct that this opinion says that some particular toy industry dealings are anticompetitive. As far as I know, IP may be correct, and they are all bad. But the emphasis is on "may" - results may vary :-) The reference to the case was because it was interesting, not because the case supported or refuted what IP said. And it is a very interesting opinion -- full of profit margin info and all sorts of other interesting stuff.
Again, IP may very well be correct that these practices are both imprudent and illegal in the toy manufacturing / retailing context... I don't know enough to say either way. I do know enough to say that, in theory, we can't just write off exclusive distributorships as bad in all cases.
Also, I apologize to IP for not informing him of my response to his comments. I intended no offense. Will, perhaps, should enlighten me as to proper etiquette for replying to another's post.
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