PrawfsBlawg

"Frozen" People at Grand Central Station

Over 200 people stood motionless in Grand Central Station for five minutes. See here.  And here's the "Improv Everywhere" website with more details.

Would a knock-out or additional rounds be better for the Democrats?

As we await primary election results today, I am wondering about the conventional wisdom that it is good for a party to settle on its Presidential nominee sooner rather than later.  This CV largely prompted the quick embrace of John Kerry in early 2004, and that did not work out so well for the Democrats.  However, it seems that the same CV is dominating a lot of the 2008 campaign thinking.

Nearly all Republicans — save for Governor Huckabee — apparently decided they should quickly put all their eggs in the McCain basket once it was clear other major candidates were not energizing the party.   Similarly, we have heard lots of assertions that it would be bad for the Democrats to continue their campaign deep into the Spring;  I sense many are hoping for one candidate to deliver a knock-out blow in today's voting. 

But could a continuing primary campaign (at least through Pennsylvania) be good for the Democrats for various reasons?  After all, throughout February, each Democratic candidate has raised a lot more money than Senator McCain, and both candidates have energized old and new voters in states that often do not get too much attention.   In addition, a continued primary battle would enable the Democrats to continue to dominate the airwaves, to hone their messages and their political teams, to build ground teams and cultivate local candidates, and to perhaps create the impression that whomever wins the nomination is likely to be the next President. 

Thoughts?

Torture, with Apologies

I suppose this might count as a “me too” posting, since I also published a review of Eric Posner and Adrian Vermeule’s book, Terror in the Balance, now available here. I also discuss Judge Posner's book, Not a Suicide Pact. I’ll let others decide whether I too am like President Merkin Muffley, as Alice Ristroph suggests most legal academicians have been in using “the voice of reason” that “is timid and faltering.” I hope I maintain respectful disagreement with their project without being timid and faltering.

I find that one of the most disturbing aspects of Terror in the Balance is its hostility to discussion of national security and civil liberties issues by law professors and others who argue against violations of civil liberties. They state the goal of their book is:

'to restrain other lawyers and their philosophical allies from shackling the government’s response to emergencies with intrusive judicial review and amorphous worries about the second-order effects of sensible first-order policies. We hope merely to clear the ground for government to react to emergencies . . . . [I]n any case nothing in the lawyer’s expertise supplies the necessary tools for improving on the government’s choices."

Moreover, Posner and Vermeule write that with regard to philosophers engaged in discussion of the moral implications of public policy involving torture, “[t]here is no reason for officials or interested publics to afford their arguments special weight as philosophical argumentation, rather than the weight that the opinion of any person in the street deserves on matters of emergency policy.”

Although we might expect that important topics, such as whether we want executive officials to have unfettered license to engage in torture, would require widespread public discussion, Posner and Vermeule rely on their notion of expertise instead. Moreover, although we might think that the biggest threats come either from outside (terrorists), or from institutional failures (tyranny), we learn from them that in fact the biggest threat comes from ourselves (or “civil libertarians” as “we” are called – that is, non-experts in national security policy who are concerned about constitutional principles). After the jump, a small a taste from my review . . .

Contrary to the traditional supposition, unilateral authoritarian executive action is not a concern [to Posner and Vermeule]. Rather, civil-libertarian constraints create the real danger of creating undesirable ratchets. “Civil libertarians are the ratcheters, insisting that every increase in civil liberties should be treated as a platform for further increases.” On this view, if courts were to follow the directions of civil libertarians, we would have increased protection for civil liberties at the expense of security. Moreover, because “the balance between security and liberty is constantly readjusted as circumstances change,” Posner and Vermeule conclude that “a government that refuses to adjust its policies has simply frozen in the face of the threat. It is pathologically rigid, not enlightened, and that rigidity is at least as great a threat to national values or to the nation’s existence.” The civil-libertarian pathology gets even more bizarre under Posner and Vermeule’s account, as they declare that “[n]o nation preserves liberty atop a stack of its own citizens’ corpses, but if one did, it would not be worth defending.” By valuing civil rights and liberties, and by sometimes providing structural limitations on the methods and options government has in implementing policies, even security policies, the civil libertarian has become the real danger to the state, pathologically rigid and unenlightened, and willing to stand on principle atop a stack of corpses.

I find their argument here (and elsewhere) quite fantastical -- the civil libertarian becomes the threat, figuratively displacing the terrorist as the threat -- and I would not argue with Dan’s friend that there is something farcical in their approach at times as well.

"The Moral Foundations of Law"

This summer seminar, "The Moral Foundations of Law", sponsored by the Witherspoon Institute at Princeton, might be of interest to Prawfs readers who are law students:

The Witherspoon Institute is pleased to announce the first annual summer seminar on the Moral Foundations of Law, a comprehensive week-long program investigating the interaction among moral thought, legal theory, and the nature of moral legislation. . . .

Guided by its mission to promote public understanding of the principles of free and democratic societies, the Witherspoon Institute brings three of the United States’ and England’s leading legal minds to lead an intense discussion of some of the most profound moral and legal questions facing students in the top law school programs and political philosophy departments, including issues such as the compatibility of political constitutions with morals legislation, religious institutions, the institution of marriage, moral neutrality in law, legal positivism, and the legal and moral understanding of a right to privacy. Extensive readings from recent legal theory, chiefly from the analytical tradition, will accompany both seminars and directed discussions.

Ristroph on Terror in the Balance

My friend and occasional sparring partner in crim law theory, Alice Ristroph (Utah to Seton Hall via Harvard Ethics), has unleashed the dogs of war on "Professors Strangelove," Chicago's Eric Posner and Harvard's Adrian Vermeule. Up on SSRN now, you can find her bare-knuckled critique of Posner and Vermeule's book, Terror in the Balance: Security, Liberty and the Courts. The review essay appears in the Winter 2008 issue of Green Bag. Here's an excerpt:

And after comedy, there is farce. With no discernible comedic
intent, a number of lawyers and law professors have reprised roles
from Kubrick’s famous film [Dr. Strangelove]. Insisting that the war on terror is too
important to be left to anyone other than the President, scorning
opponents of torture as sissies afraid to muss their hair, and rapidly
collecting promotions and personal citations, these lawyers are
teaching America to stop worrying and love the waterboard – and
the wiretap, and the ethnic profiling, and the indefinite detention,
and all the other strategies of our new war that might be funny if
they weren’t so deadly serious.

In the academy, the distinguished professors who advocate torture,
executive absolutism, and other departures from the rule of
law have been met with respectful, and inconsequential, disagreement.
Indeed, if law professors such as John Yoo, Eric Posner, and
Adrian Vermeule are today’s Ripper, Turgidson, and Kong, others
in the legal academy are more akin to President Merkin Muffley.
The balding, bespectacled Muffley is the only character in Dr.
Strangelove who fully appreciates the moral implications of nuclear
war, but his hesitancy and unfailing politeness render him a mostly
ineffective counterweight to his war-mongering colleagues. He is
the voice of reason, but that voice is timid and faltering. Today,
academic counterparts to Merkin Muffley take exception to the bellicose
program of the Professors Strangelove. But “debates” over
national security in the American legal academy are choreographed
events among gentlemen, usually featuring excellent sportsmanship
all around. Neither side wins or loses; everyone shakes hands at the
end; and everyone keeps his job, his viewpoint, and his dignity.

It is unlikely that the apologists for torture and executive absolutism
will persuade many others in the legal academy to join their
cause. But that is not the point. The Professors Strangelove play to
an audience beyond the academy. They provide a degree of intellectual
legitimacy to an ideology and a political program that has been
developed, for the most part, outside the ivory tower.
Eric Posner and Adrian Vermeule have recently published Terror
in the Balance, a new defense of executive power. That is, the book
is new. Its central argument is the familiar claim that in times of
emergency, the executive must curtail liberty to ensure security,
and the courts should not interfere.

For a Good Time Call 555-0123: Liability-Free Phone Numbers for the Entertainment Media

A legislative proposal: Congress should set aside, or direct telephone companies to set aside, certain phone numbers that can be used in films and on television without fear of liability.

As you have no doubt noticed, when a line of dialog includes a phone number, the character on screen, often with intense earnestness, spits out a phone number with a “555” prefix. For example:

“Damnit! Get President Palmer on the phone! His direct, private cell phone number is 202-555-4248!”

Fearful that if they use a real phone number they will get complaints or even lawsuits, studios have taken to using the 555 numbers because they are reserved by the phone companies and never assigned to customers.¹ Thus, they will not be unwittingly subjecting hapless folks to scores of midnight crank calls.

The problem? When you are engrossed in the make-believe world created by the film, hearing the fake “555” phone number brings you instantly back to reality – reminding you that you are watching an actor in a film, not, for instance, a heroic government agent trying to disarm a bomb. And if you are a lawyer, hearing the “555” phone number reminds you of the law, which means you are being reminded of your job while watching TV. It’s not good for anyone.

Therefore, I call on Congress, and, while I’m at it, the United Nations and the telecommunications companies of the world, to set aside a large enough slate of random-sounding numbers that movie-goers will not be subjected to instantly recognizable fakes.

The tough question that immediately confronts us: How do we get a slate of numbers that is safe for entertainment usage without screwing over the real customers currently using them. I have two proposals. The first is a bit silly, I admit.²

==More after the jump ...

My first plan would be to provide immunity for certain seven-digit phone numbers where an administrative rule-making body declares such phone numbers to have already been so tarnished through their use in media, that customers have little or no expectation of privacy with regard to them. The most obvious candidate? Why, of course: 867-5309. Those of you who remember the 80s (or have at least seen them on cable TV) will recall that that is Jenny’s number, from Tommy Tutone’s 1982 hit song, “867-5309/Jenny.”³

In fact, I’d say there is a good argument that any producer including 867-5309 in a movie or television show should be availed of an estoppel- or laches-type defense. And, for an analogy to property law, when new phone customers get 867-5309, it’s a lot like coming to the nuisance. Of course, the problem with clearing 867-5309 for producers is that the number is so engrained in pop-culture consciousness, using it in a movie is likely more jarring than using a 555 number.⁴

My second plan is a three-step approach: (1) Use computerized algorithms to comb seven-digit phone numbers to find those that are used by the fewest businesses and that are used in the fewest area codes. Put these phone numbers on a “Level I” list, then freeze the list, prohibiting phone companies from assigning these numbers to new customers. (2) Provide immunity for producers who use Level I phone numbers, so long as they use such numbers only in combination with an area code that does not correspond to a real telephone number. (3) Allow the Level I list to undergo attrition; that is, allow the seven-digit numbers to become progressively cleaner and cleaner as users in different area codes naturally give up those numbers as they move or otherwise discontinue phone service. When a seven-digit number is no longer used in any area code, or when it reaches a certain threshold of disuse, place that number on a “Level II” list. Provide immunity to producers who use seven-digit numbers, sans area code, on the Level II list.⁵

If you agree with my proposals, comment below. If you disagree, please call 867-5309.

NOTES:

FN1: I don’t know if customers with phone numbers featured in films have sued producers, much less been successful in a lawsuit. But it is clear that the fear of such lawsuits, or at least complaints and associated ill will, have held studio standards-and-practices folks to the practice of using the 555 numbers.

FN2: This whole post is a bit silly, since, as you may have noticed, it uses footnotes.

FN3: Snopes.com reviews the real-life ramifications of 867-5309 here.

FN4: But here’s an example of an intermediate case: 362-4350. That’s the number to call for the hit-woman personified by Joan Jett in her re-make of AC/DC’s “Dirty Deeds Done Dirt Cheap.” I’d have to say, though, I doubt 362-4350 has been exploited heavily enough for number holders to be fairly divested.

FN5: This proposal might fairly be called a “seven-point plan,” but I think that’s too many points. Better to keep it to three. Three-point plans are always better. And when you get down to three, for some reason I don’t entirely understand, it is plausible to call it a “three-step plan,” making it sound even easier. (I think part of the problem with saying “seven-step plan” is that if you have too many steps, then you are getting into the realm of dieting and addiction recovery, and that’s not where I’m going with this.)

Saving Trees

My thanks to Dan et al. for having me back on Prawfs! 

For as long as I can remember, the default page margins on a Microsoft Word document have been 1.25'' on the left and right sides.  In my 7th or 8th grade "typing" class (yes, that's what it was called), I believe we were taught that 1'' margins are standard all around.  So why the extra .5'' of wasted side space?  As you know, Microsoft Word dominates the word processor market around the world.  Sure, lots of people change the default margins.  But I'm sure lots of people just stick with the default.

Fortunately, I recently bought Office 2007, and it appears that Microsoft has switched to standard 1'' margins.  Nevertheless, a lot of trees have died in the interim.  In the days when I interviewed for management consulting jobs, I would occasionally get questions like, "How many telephone booths are there in Manhattan?" (yes, "telephone booths" is what they were called).  You were expected to make some reasonable assumptions and come up with an answer.  In that line, how many extra trees has Microsoft killed by setting 1.25'' side margins instead of 1'' side margins.  To get you started, you might use the assumption here that a 60 foot pine tree makes very roughly 80,000 sheets of paper.

P.S. Yes, I know that even 1'' margins are more than we need.  And yes, double spacing has even more blood pulp on its hands.