Having read so many negative reviews of it, I was reluctant to try this book. But when I saw it prominently displayed in the local library, I decided to give it a shot.
The criticisms claimed that Hillary blamed everybody but herself for her pitiful campaign performance. While she does mention the interference by Comey and by the Russians, to me she does in fact take responsibility for the bad campaign.
She covers in detail the major decisions made by her and her staff over the course of the campaign, beginning with her announcement of her candidacy on April 12, 2015. What stands out is that she was so focused on policy decisions that she ignored the basic requirement that a candidate must connect with the voters. She doesn't have to overtly admit to this, because it is obvious from her description of how she went about her campaign.
Every time an issue arose, she tried to explain what policies she thought were best to address the issue. It turns out that the voters, for the most part, are not interested in detailed policy issues, but rather are interested in picking a leader to head the country for the next four years. Voters want a candidate who can speak to their deepest concerns, not in a remote, academic way, but in a way that demonstrates that the candidate really cares about them. In a survey in which voters were asked "which candidate do you feel is on your side", a pathetic 12% said it was Hillary. She simply had no ability to connect with people, because of her icy, aloof, humorless, and charmless demeanor.
In the book she writes in a more personal way than she ever campaigned in. She shows that underneath the icy demeanor there really is a living, breathing human being. Too bad she couldn't have shown more of this side of herself during the campaign.
Monday, December 31, 2018
Thursday, December 27, 2018
"Bias", by Bernard Goldberg
I read this book practically nonstop, the only break coming at 9:20 P.M., when I finally dragged myself off the couch to go make some supper. Goldberg writes in a very readable style, and the subject matter was obviously of great interest to me.
Goldberg's thesis is that the three network newscasts all have a liberal bias. He starts with one particular story, the bias of which is quite clear. This was a report of Steve Forbes' flat tax proposal during the 1996 presidential campaign.
Goldberg wrote an op-ed which appeared in the Wall Street Journal, criticizing his network for its bias. The reaction to this was truly horrendous. Many of his colleagues would no longer speak to him. Dan Rather was furious.
The irony of all this is that the CBS 60 Minutes show had become famous for featuring corporate whistleblowers. But now that there was a whistleblower in its own ranks, a different set of principles seemed to apply.
Goldberg's reporting assignments dried up, but he was allowed to continue to work at CBS for a few years, until he could retire quietly and draw his pension.
Personally, I decided about 30 yeas ago that the network newscasts were a bunch of crap, and I haven't watched any since. My beef had nothing to with the liberal bias which many perceived, but rather with the superficiality of the newscasts. John Chancellor was right on point when, in an interview, he said that he often wished he could close his newscast with "For more information, consult your daily newspaper". (A few years later I also gave up on local newscasts, which had become little more than crime and disaster reports.)
The evils of identity politics come through lout and clear in Goldberg's writing about affirmative action. He says that "News executives are always saying we need out staffs to look more like the real America. How about if those reporters and editors and executives also thought just a little more like the real America?"
This emphasizes a big problem with the whole "diversity" obsession. What about diversity of thought? For example, there is a big push for diversity on the Supreme Court. And yet, what kind of diversity do we have when the court, until recently, consisted of six Catholics and three Jews? What about some representation for the Protestants? The idea that individual ethnic groups are monolithic in their viewpoints is absurd. Our true need is not for affirmative action crating racial and ethnic diversity, but for an honest effort to promote diversity of thought within an organization.
Goldberg's book is an important attempt to call attention to serious problems in our TV news. Kudos to him.
Goldberg's thesis is that the three network newscasts all have a liberal bias. He starts with one particular story, the bias of which is quite clear. This was a report of Steve Forbes' flat tax proposal during the 1996 presidential campaign.
Goldberg wrote an op-ed which appeared in the Wall Street Journal, criticizing his network for its bias. The reaction to this was truly horrendous. Many of his colleagues would no longer speak to him. Dan Rather was furious.
The irony of all this is that the CBS 60 Minutes show had become famous for featuring corporate whistleblowers. But now that there was a whistleblower in its own ranks, a different set of principles seemed to apply.
Goldberg's reporting assignments dried up, but he was allowed to continue to work at CBS for a few years, until he could retire quietly and draw his pension.
Personally, I decided about 30 yeas ago that the network newscasts were a bunch of crap, and I haven't watched any since. My beef had nothing to with the liberal bias which many perceived, but rather with the superficiality of the newscasts. John Chancellor was right on point when, in an interview, he said that he often wished he could close his newscast with "For more information, consult your daily newspaper". (A few years later I also gave up on local newscasts, which had become little more than crime and disaster reports.)
The evils of identity politics come through lout and clear in Goldberg's writing about affirmative action. He says that "News executives are always saying we need out staffs to look more like the real America. How about if those reporters and editors and executives also thought just a little more like the real America?"
This emphasizes a big problem with the whole "diversity" obsession. What about diversity of thought? For example, there is a big push for diversity on the Supreme Court. And yet, what kind of diversity do we have when the court, until recently, consisted of six Catholics and three Jews? What about some representation for the Protestants? The idea that individual ethnic groups are monolithic in their viewpoints is absurd. Our true need is not for affirmative action crating racial and ethnic diversity, but for an honest effort to promote diversity of thought within an organization.
Goldberg's book is an important attempt to call attention to serious problems in our TV news. Kudos to him.
Monday, October 29, 2018
An Exciting Endgame Adventure
About a month ago I came across a wonderful column in the Spring, 2007 issue of Chess Horizons. The column was entitled "Half-point Theft", written by Derek Meredith. The author gives the reader an endgame position and then analyzes it from the points of view of seven classes of players, from Class E clear up to Master.
The key position of interest is this: white has K on f5, R on h2, P's on a4, b3 and c4; black has K on a2, B on b2, and P's on a5 and c5. The author opined that in this position black could block off the white rook with his bishop, and start capturing the white pawns. Consequently, he had varied earlier in order to avoid getting to this position.
However, I realized immediately that after 61 Rh3 Ka3 62 Ke4 Kb4 63 Kd5, black's attempt to "build a bridge" with 63...Bc3, loses easily to 64 RxB! KxR 65 KxP KxP 66 Kb5.
The author correctly points out that in the key position 61 b4!! wins. However, this is a move which only a computer would find; it is doubtful that any human would ever find it. More realistic is to try to find a white win even if black avoids the blunder 63...Bc3??
The key position of interest is this: white has K on f5, R on h2, P's on a4, b3 and c4; black has K on a2, B on b2, and P's on a5 and c5. The author opined that in this position black could block off the white rook with his bishop, and start capturing the white pawns. Consequently, he had varied earlier in order to avoid getting to this position.
However, I realized immediately that after 61 Rh3 Ka3 62 Ke4 Kb4 63 Kd5, black's attempt to "build a bridge" with 63...Bc3, loses easily to 64 RxB! KxR 65 KxP KxP 66 Kb5.
The author correctly points out that in the key position 61 b4!! wins. However, this is a move which only a computer would find; it is doubtful that any human would ever find it. More realistic is to try to find a white win even if black avoids the blunder 63...Bc3??
My first try in this regard, playing as white against the Stockfish computer, went as follows: 61 Rh3 Ka3 62 Ke4 Kb4 63 Kd5 Bc1 64 Rh8 Kxb3 65 Kxc5 Kxa4 66 Rb8 Bf4 67 Rb1 Be5 68 Kd5 Bh2 69 c5 Ka3 70 c6 a4 71 Ke6 Bc7 72 Kd7 Bh2 73 c7 BxP 74 KxB Drawn
The problem here is that 74...Ka2 75 Rb7 a3 76 Kc6 Ra1 77 Kc5 a2 78 Kc4 is stalemate. The salient point is that the white rook by itself cannot win against the black king plus a-pawn; rather, the white king needs to be close enough to help out.
What is amazing is that it only needs to be one move closer! Say the white king was on c4 instead of c5, after 77...a2. Play could then continue 78 Kb3 (giving the black king a move) Kb1 79 Rh7! And now, black cannot promote to a queen because of the mate on h1. Consequently, he must promote to a knight. Play continues 79...a1(N)ch 80 Kc3 Ka2.
Now we have a position that I spent a fair amount of time looking at to find a win. Knight vs. Rook is normally a draw, but I felt sure that in this position, with the knight trapped in the corner, there had to be a win. I'm embarrassed to say that I had to finally give the position to a computer, and the winning move turns out to be the waiting move 81 Rb7! This simple move puts black into zugzwang, as any move allows white to either mate or capture the knight. White's 81 Rb7 represents a martial arts type of concept, using your opponent's aggression against him. The "aggression" in this case is the fact that the rules require black to move. If he could pass, white would have no win, as black would simply shuffle his king back and forth between a2 and b1.
Armed with this knowledge, I sought a line in which white's king didn't stray so far from the a1 corner. The solution was simple: use the rook to shepherd the c-pawn down the board, rather than the king. Using this approach, I was able to beat Stockfish rather easily.
But then I wondered about a different black move 63. Instead of 63...Bc1, what if black played 63...Bd4, guarding the c-pawn? Play could then continue 64 Kc6 Bg1 65 Rh7 Kxb3 66 Kb5!, and white should win from here.
All in all, I had the key position set up on the desk in my den for three solid weeks, and kept coming back to the position, searching for the truth in the position. And a very satisfying three weeks it was!
Monday, October 22, 2018
Jian Ghomeshi
Just when I thought things could not get worse, now we have the pathetic case of Jian Ghomeshi, who the New York Review of Books allowed to submit a long article, a la the John Hockenberry essay in Harper's, wallowing in self-pity over being outed for his sexual predations.
The response was overwhelming, as numerous readers, mostly Canadians, responded with letters condemning the magazine for running such an article, which showed no regard for the many women whom Ghomeshi has abused.
The essay was not quite as pathetic as the Hockenberry article, but it was close. Ghomeshi's self-pity involved his status as being of Iranian descent, while Hockenberry claimed pity as a disabled person. Neither statuses justify the serial abuse of women. When are men going to realize this, and when are publications going to stop publishing such garbage?
The response was overwhelming, as numerous readers, mostly Canadians, responded with letters condemning the magazine for running such an article, which showed no regard for the many women whom Ghomeshi has abused.
The essay was not quite as pathetic as the Hockenberry article, but it was close. Ghomeshi's self-pity involved his status as being of Iranian descent, while Hockenberry claimed pity as a disabled person. Neither statuses justify the serial abuse of women. When are men going to realize this, and when are publications going to stop publishing such garbage?
Monday, October 15, 2018
Hockenberry's Diatribe
When I was in college in the 60s, the two liberal magazines of note were Harpers and The Atlantic Monthly. The latter, now called The Atlantic, is still going strong, but Harpers seems to have gone off the deep end.
I realized this recently when I picked up the latest issue in the library, and read a 7,000-word essay by disgraced NPR host John Hockenberry. I kept waiting for some salient point to this diatribe, but none ever emerged.
Rather, it was simply an embarrassing wallow in self-pity by Hockenberry, who seems unable to come to grips with the fact that he cannot find another job in journalism. He repeatedly refers to the fact that he is in a wheelchair, as a consequence of an accident at age 19, an accident which rendered him paralyzed below the waist, and impotent. He seems to think he could not possibly be guilty of workplace sexual harassment since he is in a wheelchair and impotent, and he resents being lumped in with the "real" sexual harassers such as Harvey Weinstein.
Harpers exercised incredibly poor editorial judgment in running this worthless drivel. There is nothing unusual about a 60-something person being out of work and unable to find another job. I know a guy who was disciplined for telling a woman "you've got a run in your stocking". He was made to go to sensitivity training, and he estimates he lost $250,000 in lost raises, promotions, and bonuses. He ended up unemployed and in his 60s. No magazine ran an article on his plight.
Then there is the example of William Shirer, who was unjustly fired from his job with CBS radio in 1947, even though he had the highest-rated news commentary show on radio (a huge black mark against Edward R. Murrow, the jerk who fired him). Shirer could not find another job to support his family, but instead of spending the rest of his life wallowing in self-pity, as Hockenberry is doing, he undertook to write a book about Hitler and the Third Reich, based on his first-hand knowledge of Germany in the 30s. The result was The Rise and Fall of the Third Reich.
If Hockenberry feels so mistreated from being viewed as a sexual harasser, he should look on his firing as simply being an issue of an inability to get along with his co-workers. HR people tell us that more firings are based on an inability to get along with others, than on an inability to do the job. Hockenberry should spend his energies in psychotherapy to work through his many issues.
Hockenberry repeatedly veers off into irrelevant tangents, like the role of romance in 2018. He wants us to believe that his problems stem from society's lack of appreciation for the role romance should play in our lives. But if you read the accounts of the women who were harassed, it is obvious that Hockenberry's actions had nothing at all to do with romance. We are talking about suggestive emails sent over a period of many months to a woman who had been a guest on his show, without the woman ever once responding. We are talking about co-workers who complained about his rude and bullying tactics, only to lose their jobs while Hockenberry kept his. Hockenberry does not understand that romance is a dance performed between two willing participants, not something one party inflicts on another against her will.
In the end, we are looking at a guy who was simply a bully to his co-workers, to the extent that everybody at the radio station tried hard to avoid contact with him. The mystery isn't that he is out of work, but that it took the radio station ten years to rid itself of his toxic presence.
10/17/18 update. Since writing the above I have come across a piece analyzing Hockenberry's essay. The piece, written by Mike Pesca, is scathing in its denunciation of Hockenberry.
He says that Hockenbery's essay "makes you realize why savvy defense attorneys seldom allow their client to testify in their own defense". He calls it "logorrhea as apologia". He says that "the Hockenberry essay fails completely and erases any doubt that even a charitable reader like me might have had about the ego, intention, or basic good sense of the man".
Pesca gives us certain new details about Hockenberry's tenure at the station, such as that even before the harassment charges surfaced, Hockenberry :"missed interviews, arrived unprepared, and even fell asleep on the job"; and such as that he was "such an asshole" that he was frequently excluded from staff meetings because he was "so abusive and deleterious to the production of the show"; and such as the fact that his yearly compensation is known to have been over $400,000.
Pesca concludes with his advice to Hockenberry: "If you really want to rehab your name, image, and marketability, maybe you should drop the pitiable first-person essay....The only practical route to absolution is to put your head down and work. You probably won't get paid for your initial efforts, but you could post all your stories publicly, and perhaps eventually demonstrate to the world that you still have value as a professional. Otherwise this caterwauling, solipsistic, tendentious argument for leniency won't simply document your exile--it will cement it".
To all of which I give a hearty "Amen"!
I realized this recently when I picked up the latest issue in the library, and read a 7,000-word essay by disgraced NPR host John Hockenberry. I kept waiting for some salient point to this diatribe, but none ever emerged.
Rather, it was simply an embarrassing wallow in self-pity by Hockenberry, who seems unable to come to grips with the fact that he cannot find another job in journalism. He repeatedly refers to the fact that he is in a wheelchair, as a consequence of an accident at age 19, an accident which rendered him paralyzed below the waist, and impotent. He seems to think he could not possibly be guilty of workplace sexual harassment since he is in a wheelchair and impotent, and he resents being lumped in with the "real" sexual harassers such as Harvey Weinstein.
Harpers exercised incredibly poor editorial judgment in running this worthless drivel. There is nothing unusual about a 60-something person being out of work and unable to find another job. I know a guy who was disciplined for telling a woman "you've got a run in your stocking". He was made to go to sensitivity training, and he estimates he lost $250,000 in lost raises, promotions, and bonuses. He ended up unemployed and in his 60s. No magazine ran an article on his plight.
Then there is the example of William Shirer, who was unjustly fired from his job with CBS radio in 1947, even though he had the highest-rated news commentary show on radio (a huge black mark against Edward R. Murrow, the jerk who fired him). Shirer could not find another job to support his family, but instead of spending the rest of his life wallowing in self-pity, as Hockenberry is doing, he undertook to write a book about Hitler and the Third Reich, based on his first-hand knowledge of Germany in the 30s. The result was The Rise and Fall of the Third Reich.
If Hockenberry feels so mistreated from being viewed as a sexual harasser, he should look on his firing as simply being an issue of an inability to get along with his co-workers. HR people tell us that more firings are based on an inability to get along with others, than on an inability to do the job. Hockenberry should spend his energies in psychotherapy to work through his many issues.
Hockenberry repeatedly veers off into irrelevant tangents, like the role of romance in 2018. He wants us to believe that his problems stem from society's lack of appreciation for the role romance should play in our lives. But if you read the accounts of the women who were harassed, it is obvious that Hockenberry's actions had nothing at all to do with romance. We are talking about suggestive emails sent over a period of many months to a woman who had been a guest on his show, without the woman ever once responding. We are talking about co-workers who complained about his rude and bullying tactics, only to lose their jobs while Hockenberry kept his. Hockenberry does not understand that romance is a dance performed between two willing participants, not something one party inflicts on another against her will.
In the end, we are looking at a guy who was simply a bully to his co-workers, to the extent that everybody at the radio station tried hard to avoid contact with him. The mystery isn't that he is out of work, but that it took the radio station ten years to rid itself of his toxic presence.
10/17/18 update. Since writing the above I have come across a piece analyzing Hockenberry's essay. The piece, written by Mike Pesca, is scathing in its denunciation of Hockenberry.
He says that Hockenbery's essay "makes you realize why savvy defense attorneys seldom allow their client to testify in their own defense". He calls it "logorrhea as apologia". He says that "the Hockenberry essay fails completely and erases any doubt that even a charitable reader like me might have had about the ego, intention, or basic good sense of the man".
Pesca gives us certain new details about Hockenberry's tenure at the station, such as that even before the harassment charges surfaced, Hockenberry :"missed interviews, arrived unprepared, and even fell asleep on the job"; and such as that he was "such an asshole" that he was frequently excluded from staff meetings because he was "so abusive and deleterious to the production of the show"; and such as the fact that his yearly compensation is known to have been over $400,000.
Pesca concludes with his advice to Hockenberry: "If you really want to rehab your name, image, and marketability, maybe you should drop the pitiable first-person essay....The only practical route to absolution is to put your head down and work. You probably won't get paid for your initial efforts, but you could post all your stories publicly, and perhaps eventually demonstrate to the world that you still have value as a professional. Otherwise this caterwauling, solipsistic, tendentious argument for leniency won't simply document your exile--it will cement it".
To all of which I give a hearty "Amen"!
Monday, September 24, 2018
The Kavanaugh Nomination and Varieties of Conservatism
For the past few years I have been reading the top two conservative magazines, National Review and The Weekly Standard, in an attempt to understand how the conservative mind works. One thing which stands out is that the word "conservative" means many things to different people, and it certainly is not a monolithic movement, just as Communism was not during the cold War.
Certainly we know from past experiences that the direction a Supreme Court nominee takes once confirmed cannot be predicted with any accuracy. One of the reasons that this will, I think, be the case with Kavanaugh is that applying conservative principles to Supreme Court decision-making is especially haphazard.
For example, take the Roe v. Wade decision. Many who oppose Kavanaugh are fearful he would vote to overturn this precedent. I say the fears of this are overblown. One reason is that a true conservative respects precedent, and tends to dislike change. As a principled conservative, Kavanaugh will, I believe, have a healthy respect for precedent.
And then there is the further point that the true conservative is one who opposes the intrusion of government into the personal lives of its citizens. Hence, the true conservative would feel that government has no business making reproductive decisions for its female citizens. Those who advocate for governmental intrusion into the private lives of its citizens, as in dictating who we are permitted to marry, etc., usually call themselves conservatives, but in reality they are liberals because they are advocating for greater governmental control.
Other important areas on which there is much disagreement among conservatives include the scope of executive power, the scope of agency regulation of our lives, and how much deference to be shown to the states.
Certainly we know from past experiences that the direction a Supreme Court nominee takes once confirmed cannot be predicted with any accuracy. One of the reasons that this will, I think, be the case with Kavanaugh is that applying conservative principles to Supreme Court decision-making is especially haphazard.
For example, take the Roe v. Wade decision. Many who oppose Kavanaugh are fearful he would vote to overturn this precedent. I say the fears of this are overblown. One reason is that a true conservative respects precedent, and tends to dislike change. As a principled conservative, Kavanaugh will, I believe, have a healthy respect for precedent.
And then there is the further point that the true conservative is one who opposes the intrusion of government into the personal lives of its citizens. Hence, the true conservative would feel that government has no business making reproductive decisions for its female citizens. Those who advocate for governmental intrusion into the private lives of its citizens, as in dictating who we are permitted to marry, etc., usually call themselves conservatives, but in reality they are liberals because they are advocating for greater governmental control.
Other important areas on which there is much disagreement among conservatives include the scope of executive power, the scope of agency regulation of our lives, and how much deference to be shown to the states.
Monday, August 6, 2018
Should Urban Meyer Be Fired?
The CBS Sportsradio talking heads were pretty much unanimous in condemning Urban Meyer over this past weekend. At first their condemnation was based on his denial to the press that he knew about his assistant's alleged violence against his wife. The thought was that Meyers's wife knew about it, due to text messages sent to her, therefore Urban must have known about it also.
Then it turns out that Meyer did know about the allegations, and followed required protocol in reporting it to his superiors. But did the talking heads rethink their position? Of course not. They continued to mindlessly dump their vitriol on Meyer, regardless of the fact that he had acted properly.
As my old Contracts Law prof used to say, "we have to keep our thinking straight". First, this situation involves an alleged victim who is an adult. What this means is that there is no analogy to the Penn State situation, or any other situation involving abuse of children. Police reports were made in many of the instances of alleged abuse (apparently nine total), and the authorities never proceeded to file charges. What this means is that the authorities were well aware of the situation, so there was no need for Meyer to report it.
The second thing to keep in mind is that, once Meyer made the AD aware of the situation, it was up to the AD to take whatever action he felt necessary to ensure the integrity of the OSU program. Meyer's job is to win football games, it is the AD's job to oversee the program.
The third thing to keep in mind is that perhaps the woman involved wanted to keep the whole issue private. If that is the case, it is not up to Meyer, or the OSU athletic program, to infringe on her privacy by publicizing the issue. She is an adult and perfectly able to pursue whatever remedies are appropriate. Her parents and other extended family were aware of her situation, and surely would have insisted on action if she was truly in danger.
The assistant's misdeeds, whatever they were, did not infringe on his ability to do his job.
For all these reasons, I say to the lamestream media, get a clue!
Then it turns out that Meyer did know about the allegations, and followed required protocol in reporting it to his superiors. But did the talking heads rethink their position? Of course not. They continued to mindlessly dump their vitriol on Meyer, regardless of the fact that he had acted properly.
As my old Contracts Law prof used to say, "we have to keep our thinking straight". First, this situation involves an alleged victim who is an adult. What this means is that there is no analogy to the Penn State situation, or any other situation involving abuse of children. Police reports were made in many of the instances of alleged abuse (apparently nine total), and the authorities never proceeded to file charges. What this means is that the authorities were well aware of the situation, so there was no need for Meyer to report it.
The second thing to keep in mind is that, once Meyer made the AD aware of the situation, it was up to the AD to take whatever action he felt necessary to ensure the integrity of the OSU program. Meyer's job is to win football games, it is the AD's job to oversee the program.
The third thing to keep in mind is that perhaps the woman involved wanted to keep the whole issue private. If that is the case, it is not up to Meyer, or the OSU athletic program, to infringe on her privacy by publicizing the issue. She is an adult and perfectly able to pursue whatever remedies are appropriate. Her parents and other extended family were aware of her situation, and surely would have insisted on action if she was truly in danger.
The assistant's misdeeds, whatever they were, did not infringe on his ability to do his job.
For all these reasons, I say to the lamestream media, get a clue!
Friday, July 20, 2018
Letter to The Weekly Standard
Terry Eastland's comment in the July 23rd issue contains a reasonable
account of the liberal/conservative divide in the Supreme Court in
recent decades. However, the comment goes horribly awry regarding
the failed Robert Bork nomination. Calling the opposition to Bork a
"vicious" campaign is totally out of bounds; more accurate would be to
call it "vigorous", or "spirited", but certainly not "vicious", which is
a slur.
Calling Bork "one of the great intellectuals in the law" is simply ludicrous. Noone who watched or listened to his inept testimony before the Senate Judiciary Committee would mistake Bork for a "great intellectual". He repeatedly refused to answer even the simplest, most basic questions about the criminal law, using the excuse that he hadn't studied the issue.
But Bork had more problems than this. He came across in the confirmation hearings as aloof and unapproachable, turning off even many of his supporters. As Senator Howell Heflin commented, "He's too professorial".
As ably documented in Ethan Bronner's "Battle for Justice: How the Bork Nomination Shook America", Bork waffled over key issues during his confirmation hearing, repeatedly flip-flopping back and forth. This made him look hopelessly opportunistic, and called his character into question. Bronner says that Bork "modified views he had held strongly and repeated widely for two decades". Bronner adds that Bork's repeated waffling earned him "the contempt of some fervent admirers".
Not every issue boils down to liberal vs. conservative. Sometimes it is just competent vs. incompetent.
Calling Bork "one of the great intellectuals in the law" is simply ludicrous. Noone who watched or listened to his inept testimony before the Senate Judiciary Committee would mistake Bork for a "great intellectual". He repeatedly refused to answer even the simplest, most basic questions about the criminal law, using the excuse that he hadn't studied the issue.
But Bork had more problems than this. He came across in the confirmation hearings as aloof and unapproachable, turning off even many of his supporters. As Senator Howell Heflin commented, "He's too professorial".
As ably documented in Ethan Bronner's "Battle for Justice: How the Bork Nomination Shook America", Bork waffled over key issues during his confirmation hearing, repeatedly flip-flopping back and forth. This made him look hopelessly opportunistic, and called his character into question. Bronner says that Bork "modified views he had held strongly and repeated widely for two decades". Bronner adds that Bork's repeated waffling earned him "the contempt of some fervent admirers".
Not every issue boils down to liberal vs. conservative. Sometimes it is just competent vs. incompetent.
Wednesday, July 18, 2018
The Kavanaugh Nomination
An editorial in The Weekly Standard for July 23, 2018, mentions that Supreme Court nominee Kavanaugh was one of the authors of the notorious Starr Report, and describes that document as "a fair, thorough, and nuanced work of analysis".
Renata Adler's article "Decoding the Starr Report", which first appeared in Vanity Fair in December, 1998, and which is reprinted in Adler's book After the Tall Timber, has a completely different analysis of the Starr Report. Adler says that the Starr Report is "an utterly preposterous document: inaccurate, mindless, biased, disorganized, unprofessional, and corrupt". She goes on to call it "a massive document in which it is literally impossible to find information by title, date, alphabetical or chronological sequence, or context of any kind".
She summarizes the information about the Clinton/Lewinsky "affair" in a way that makes Lewinsky look like a complete villain who repeatedly stalked and harassed President Clinton. Her analysis is based on a through reading of the Starr Report, and I suggest that if you don't have the time nor inclination to read the report itself (and who in their right mind does), then you should read Adler's article for the detailed information necessary to understand the misguided impeachment effort launched against Clinton by the right-wingers in the House.
Renata Adler's article "Decoding the Starr Report", which first appeared in Vanity Fair in December, 1998, and which is reprinted in Adler's book After the Tall Timber, has a completely different analysis of the Starr Report. Adler says that the Starr Report is "an utterly preposterous document: inaccurate, mindless, biased, disorganized, unprofessional, and corrupt". She goes on to call it "a massive document in which it is literally impossible to find information by title, date, alphabetical or chronological sequence, or context of any kind".
She summarizes the information about the Clinton/Lewinsky "affair" in a way that makes Lewinsky look like a complete villain who repeatedly stalked and harassed President Clinton. Her analysis is based on a through reading of the Starr Report, and I suggest that if you don't have the time nor inclination to read the report itself (and who in their right mind does), then you should read Adler's article for the detailed information necessary to understand the misguided impeachment effort launched against Clinton by the right-wingers in the House.
Thursday, June 28, 2018
The Colorado Bakery Case
The Supreme Court has come out with its decision on the Colorado bakery case. As expected, it ruled for the baker, a ruling which was inevitable after the hostile questioning heard in the oral argument.
The key to the 7-2 decision is the hostility shown by the Colorado Civil Rights Commission to the "sincerely held religious beliefs" of the baker. His beliefs were disparaged as despicable and derisively compared to defenses of slavery and the Holocaust.
The opinion makes clear that the government must apply the law in a manner that is "neutral toward religion". This is a rather straightforward application of the First Amendment. There is so much hostility toward religion in the way Colorado handled the case that there was no way the gay couple was ever going to win this case.
On the surface the decision appears to be so pedestrian as not to merit much commentary. However, there are some interesting nuances contained in the three(!) concurring opinions. Justice Gorsuch, joined by Justice Alito, filed a concurring opinion stressing that the Colorado Civil Rights Commission held the opposite way in another case. This was a case in which some joker went into three bakeries asking for a cake with messages disapproving of same-sex marriage. All three of the bakeries refused this request, and this guy likewise filed a complaint, which the CCRC denied.
Gorsuch felt the cases were similar and should have been treated the same. However, Justice Kagan, joined by Justice Breyer, field a concurring opinion showing that the two cases were different. Kagan, showing her usual good sense, pointed out that the three bakers in this latter case did not discriminate against the customer, "but instead treated him in the same way they would have treated anyone else." Kagan emphatically concludes that "A vendor can choose the products he sells, but not the customers he serves--no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates. He sells it to opposite-sex couples but not to same sex couples." Notwithstanding this strong statement that the baker Phillips acted unlawfully, Kagan still joined the majority opinion because the state's decision was "infected by religious hostility or bias".
Justice Thomas, joined by Justice Gorsuch, filed another concurring opinion, the thrust of which was to say that the Colorado decision was an abridgment of the baker's freedom of speech. Thomas thus articulates another, independent ground for overturning the Colorado decision.
Finally, Justice Ginsburg, joined by Justice Sotomayor, dissented from the decision. She stressed that "the proceedings involved several layers of independent decision making, of which the Commission was but one". She saw no reason why "the comments of one or two Commissioners" should be allowed to to overcome the basic fact that the baker's refusal to sell the wedding cake to the gay couple was an illegal act.
And what is the lesson we can take away from this case? To me it is the fact that what is most important in our daily interactions with others is basic respect and tolerance of each other. These are qualities that seem to be sadly lacking in our current polarized culture. The baker politely and respectfully told the couple that he couldn't provde what they ask. Instead of thanking him for his time and going on down the road to another bakery, they decided to pursue legal action. Unfortunately, this has become an all-too-regular occurrence in our sick society, in which people tend to resort to the courts for every perceived slight they encounter in life. (Just today news reports told of a Georgia man who has called 911 over 100 times for such non-emergency requests as to get him a glass of milk, to bring him his cellphone, and to fetch his television remote.)
Obviously some kind of a line will have to be drawn, as is the case with many aspects of our civic life. With sales tax there is a line drawn in most states, basically between goods, which are taxed, and personal services, which are not taxed. Thus, your payments to doctors, lawyers, barbers, etc., do not have sales tax added on. Some sort of line such as this will need to be drawn.
Certainly, when I practiced law, I would have thought it outrageous if the government had come into my office and tried to dictate which cases I could and couldn't take on. Government coercion like this has no place under our Constitution.
The key to the 7-2 decision is the hostility shown by the Colorado Civil Rights Commission to the "sincerely held religious beliefs" of the baker. His beliefs were disparaged as despicable and derisively compared to defenses of slavery and the Holocaust.
The opinion makes clear that the government must apply the law in a manner that is "neutral toward religion". This is a rather straightforward application of the First Amendment. There is so much hostility toward religion in the way Colorado handled the case that there was no way the gay couple was ever going to win this case.
On the surface the decision appears to be so pedestrian as not to merit much commentary. However, there are some interesting nuances contained in the three(!) concurring opinions. Justice Gorsuch, joined by Justice Alito, filed a concurring opinion stressing that the Colorado Civil Rights Commission held the opposite way in another case. This was a case in which some joker went into three bakeries asking for a cake with messages disapproving of same-sex marriage. All three of the bakeries refused this request, and this guy likewise filed a complaint, which the CCRC denied.
Gorsuch felt the cases were similar and should have been treated the same. However, Justice Kagan, joined by Justice Breyer, field a concurring opinion showing that the two cases were different. Kagan, showing her usual good sense, pointed out that the three bakers in this latter case did not discriminate against the customer, "but instead treated him in the same way they would have treated anyone else." Kagan emphatically concludes that "A vendor can choose the products he sells, but not the customers he serves--no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates. He sells it to opposite-sex couples but not to same sex couples." Notwithstanding this strong statement that the baker Phillips acted unlawfully, Kagan still joined the majority opinion because the state's decision was "infected by religious hostility or bias".
Justice Thomas, joined by Justice Gorsuch, filed another concurring opinion, the thrust of which was to say that the Colorado decision was an abridgment of the baker's freedom of speech. Thomas thus articulates another, independent ground for overturning the Colorado decision.
Finally, Justice Ginsburg, joined by Justice Sotomayor, dissented from the decision. She stressed that "the proceedings involved several layers of independent decision making, of which the Commission was but one". She saw no reason why "the comments of one or two Commissioners" should be allowed to to overcome the basic fact that the baker's refusal to sell the wedding cake to the gay couple was an illegal act.
And what is the lesson we can take away from this case? To me it is the fact that what is most important in our daily interactions with others is basic respect and tolerance of each other. These are qualities that seem to be sadly lacking in our current polarized culture. The baker politely and respectfully told the couple that he couldn't provde what they ask. Instead of thanking him for his time and going on down the road to another bakery, they decided to pursue legal action. Unfortunately, this has become an all-too-regular occurrence in our sick society, in which people tend to resort to the courts for every perceived slight they encounter in life. (Just today news reports told of a Georgia man who has called 911 over 100 times for such non-emergency requests as to get him a glass of milk, to bring him his cellphone, and to fetch his television remote.)
Obviously some kind of a line will have to be drawn, as is the case with many aspects of our civic life. With sales tax there is a line drawn in most states, basically between goods, which are taxed, and personal services, which are not taxed. Thus, your payments to doctors, lawyers, barbers, etc., do not have sales tax added on. Some sort of line such as this will need to be drawn.
Certainly, when I practiced law, I would have thought it outrageous if the government had come into my office and tried to dictate which cases I could and couldn't take on. Government coercion like this has no place under our Constitution.
Thursday, May 24, 2018
On Democracy
Regarding the future of democracy, I have to go back to Jefferson's advice that better education is the answer. I don't see how anyone can look at the 2016 election and be enthused about democracy, as we had the two worst major party candidates in our history.
To take a step back, let's look at the nomination process. It can be shown rather easily that the problem with the nomination process for both major parties can be attributed to too much democracy. Since 1968, when Hubert Humphrey won the Democratic nomination without winning a single primary, and riots then broke out in Chicago, both parties have undertaken to democratize the process, with increasingly disastrous results. The broken nomination process is good evidence for the idea that there can be too much democracy.
The proverbial "smoke-filled room" has been bashed ever since it was supposedly used to nominate Warren Harding in 1920, but I think we have discovered that party bosses really need to have more say in who the party nominates. If this had been the case, we certainly wouldn't have had the nomination of Trump, and perhaps not Clinton either (though the latter is unclear).
When Jack Kennedy's brother Ted ran for the Senate in 1962, a journalist asked a Massachusetts voter who she was going to vote for. She said Kennedy, because "if he's good enough to be president, he's good enough to be a senator". We don't like to admit it, but this sort of ignorance is quite common among the electorate. And it predates the internet. People have always been ignorant and gullible; it is not a recent product of this fake news era.
To take a step back, let's look at the nomination process. It can be shown rather easily that the problem with the nomination process for both major parties can be attributed to too much democracy. Since 1968, when Hubert Humphrey won the Democratic nomination without winning a single primary, and riots then broke out in Chicago, both parties have undertaken to democratize the process, with increasingly disastrous results. The broken nomination process is good evidence for the idea that there can be too much democracy.
The proverbial "smoke-filled room" has been bashed ever since it was supposedly used to nominate Warren Harding in 1920, but I think we have discovered that party bosses really need to have more say in who the party nominates. If this had been the case, we certainly wouldn't have had the nomination of Trump, and perhaps not Clinton either (though the latter is unclear).
When Jack Kennedy's brother Ted ran for the Senate in 1962, a journalist asked a Massachusetts voter who she was going to vote for. She said Kennedy, because "if he's good enough to be president, he's good enough to be a senator". We don't like to admit it, but this sort of ignorance is quite common among the electorate. And it predates the internet. People have always been ignorant and gullible; it is not a recent product of this fake news era.
Saturday, May 19, 2018
On Collusion and Commandeering
The word "collusion" has become exceedingly popular of late. President Trump used it 16 times in a 30-minute interview with two New York Times reporters back in December. What those who have been paying attention have learned is that "collusion" is not a legal term. The legal term for the crime being referred to would have to be a conspiracy to violate election laws. Trump insists on his innocence, but the special counsel is still on the job, so the final word has not yet been spoken.
This week the Supreme Court has brought a new word to our attention, "commandeering", in its sports betting decision. In that decision the Court relied on what has been known as "the anticommandeering principle", first set out in two decisions from the 1990s. That principle says that Congress cannot dictate to state legislatures what they can and cannot do.
Congress can legislate in the substantive area involved; i.e., in the case of gambling it could prohibit all gambling nationwide, and federal law would then take precedence over state law under the "preemption" principle. However, Congress cannot prohibit states from allowing and regulating gambling, which it tried to do with the 1992 in question here.
It is surprising that "commandeering" is a legal principle, while "collusion" is not, but that's what we have learned recently.
It might be surprising to many that Congress does not have the power to dictate to state legislatures. What people need to understand is that we have a federalist system, meaning that power is divided between the federal government and the states, with the federal government possessing only those powers granted to it under our constitution. Indeed, in the recent Supreme Court decision, Clarence Thomas, in a concurring opinion, expresses doubt that the federal government has any power to regulate gambling. It is properly a matter for the states, and this most welcome decision makes that clear.
It seems odd that for 26 years we had a situation where states could legally hold lotteries, which 44 states have done, but could not allow gambling on sporting events. The difference here is twofold: 1) Lotteries are pure chance, while sports betting requires some thought; and 2) Lotteries skim off 50% or more of the proceeds off the top, leaving at most half for the players. Sports bookies, by contrast, only take 5% for themselves, making this a much fairer game to play compared to the ripoff lottery system.
This week the Supreme Court has brought a new word to our attention, "commandeering", in its sports betting decision. In that decision the Court relied on what has been known as "the anticommandeering principle", first set out in two decisions from the 1990s. That principle says that Congress cannot dictate to state legislatures what they can and cannot do.
Congress can legislate in the substantive area involved; i.e., in the case of gambling it could prohibit all gambling nationwide, and federal law would then take precedence over state law under the "preemption" principle. However, Congress cannot prohibit states from allowing and regulating gambling, which it tried to do with the 1992 in question here.
It is surprising that "commandeering" is a legal principle, while "collusion" is not, but that's what we have learned recently.
It might be surprising to many that Congress does not have the power to dictate to state legislatures. What people need to understand is that we have a federalist system, meaning that power is divided between the federal government and the states, with the federal government possessing only those powers granted to it under our constitution. Indeed, in the recent Supreme Court decision, Clarence Thomas, in a concurring opinion, expresses doubt that the federal government has any power to regulate gambling. It is properly a matter for the states, and this most welcome decision makes that clear.
It seems odd that for 26 years we had a situation where states could legally hold lotteries, which 44 states have done, but could not allow gambling on sporting events. The difference here is twofold: 1) Lotteries are pure chance, while sports betting requires some thought; and 2) Lotteries skim off 50% or more of the proceeds off the top, leaving at most half for the players. Sports bookies, by contrast, only take 5% for themselves, making this a much fairer game to play compared to the ripoff lottery system.
Friday, May 18, 2018
The New CIA Director
Gina Haspel was confirmed yesterday as the new director of the CIA. While I was initially strongly opposed to her confirmation, due to her involvement with torture and the destruction of the tapes depicting said torture, I have evolved to be cautiously in favor.
The reason is that the alternative would likely be worse. As a 33-year veteran of the CIA, Haspel knows the agency inside out. The alternative would likely be a political appointee, as most are, and therefore someone unfamiliar with how the agency functions.
Also, her involvement with torture occurred at a time when it was considered lawful, and also when she was not the person in charge of the agency. The destruction of the tapes she has explained as necessary to avoid outing CIA personnel.
The Senate confirmation vote was 54-45, with three Republicans opposed, Rand Paul, Jeff Flake, and John McCain, with McCain not voting due to his illness. Since the GOP majority is only 51-49, this meant that six Democrats voted yes. These six are Manchin of WV, Heitkamp of ND, Donnelly of IN, Nelson of FL, Warner of VA, and Shaheen of NH.
The reason is that the alternative would likely be worse. As a 33-year veteran of the CIA, Haspel knows the agency inside out. The alternative would likely be a political appointee, as most are, and therefore someone unfamiliar with how the agency functions.
Also, her involvement with torture occurred at a time when it was considered lawful, and also when she was not the person in charge of the agency. The destruction of the tapes she has explained as necessary to avoid outing CIA personnel.
The Senate confirmation vote was 54-45, with three Republicans opposed, Rand Paul, Jeff Flake, and John McCain, with McCain not voting due to his illness. Since the GOP majority is only 51-49, this meant that six Democrats voted yes. These six are Manchin of WV, Heitkamp of ND, Donnelly of IN, Nelson of FL, Warner of VA, and Shaheen of NH.
Monday, May 14, 2018
My Pilgrimage to Cooperstown
I took a wonderful two and a half day trip last month with my friends Rich and Tom. We left on Tuesday after lunch and drove to Cleveland, where we had a leisurely supper across from the ballpark, and then went to a night game between the Indians and the Tigers. This April has seen much bad weather, with a record number of MLB games being postponed. The night before, the Indians had played a game with a game-time temperature of 33 degrees, a record cold in the history of the Indians current ballpark, now called Progressive Field. This night, however, the starting temperature was 43 degrees, with little wind. While not very good baseball weather, it was at least tolerable. Still, the attendance of 10,078 was only slightly higher than the previous night's attendance of 9,843.
We had seats down the left-field line, which gave us a good view of the Indians' two best players, shortstop Francisco Lindor and third baseman Jose Ramirez. Lindor made a sparkling play in the very first inning, diving to his right to smother a ground ball, and then getting up and nonchalantly throwing out the batter at first. A few innings later, left fielder Michael Brantley made a nice running catch in the left field corner near the foul line. And late in the game, Lindor made another fine play, backhanding a sharp grounder on the first hop, and then taking his time to throw out the runner at first. Jason Kipnis also made a couple of nice plays at second, going far to his right to backhand grounders, and then throwing out the runners on close plays at first. (A guy sitting in front of us was bad-mouthing Lindor the whole game, but backed off a bit towards the end and claimed that it was only his hitting he was complaining about.)
Despite the cold weather, the game was well-played in a crisp 2:47. There were few walks, few mound visits, and only one error. Ramirez started the scoring in the first with a solo homer. Indians' starter Mike Tomlin made the lead stand up during his time on the mound, though he had to pitch out of trouble a few times, and his strike-ball ratio was so bad that he was lifted after the 5th due to his high pitch count.
Three Indians' relievers shared the next two innings, with the Tigers tying it up in the 7th. Then in the 8th star reliever Andrew Miller came in, to much fanfare highlighted by fire showing on the scoreboard around the phrase "Miller time". Light-hitting back-up catcher Roberto Perez broke the 1-1 tie with a homer in the bottom of the 8th, and closer Cody Allen pitched the 9th for the save, giving Miller a rare win. This win put the Indians over .500 at 6-5, and at this writing they are in first in their division despite still being only one game above .500.
After the game we drove about an hour and stopped at a motel in Ashtabula for the night. The next day we continued to Cooperstown, driving through the northwest corner of Pennsylvania, then through the finger lakes area of New York, where there were few signs of farming, and arriving at Cooperstown at about 2:00 P.M.
We spent three hours at the museum, then had a leisurely supper and evening. I got to watch more TV than at any time during the past three and a half years. A program on the moose in Canada, and then the Rachel Maddow show, discussing the latest chaos of the Trump presidency.
The next morning was spent at the museum, taking in the part containing the plaques. Then we explored downtown Cooperstown, visiting several souvenir shops filled with baseball memorabilia. Since it was the offseason, the shop proprietors had little to do and were quite happy to converse with us. (Being the offseason also helped enormously with the motel rates.)
The visitors guides at the museum were uniformly helpful and friendly. One talked with us for quite some time, relating the visits from the new Hall members set to be inducted this summer. Trevor Hoffman and his wife cut the cake and served it to the museum staff, the first time this has ever happened, according to the guide. Alan Trammel also impressed the staff, as someone married since he was 20 and very much the unassuming and humble family man.
Chipper Jones was just the opposite, someone the women took a dislike to as he apparently is a well-known womanizer; he's now on his third wife, and has a son born out of an 18-month affair with a Hooters waitress during his first marriage. An interesting factoid about Chipper is that he and his current wife are expecting a child, the due date being on his induction date! They have checked out the Cooperstown hospital and plan to name the child "Cooper".
Some of the museum patrons were also quite friendly. One guy from Boston fired some trivia questions at us; the one I remember is "Who is the only player to play on each of the Sox' first four world championship teams?" I knew this was in the 1910s and made a few guesses, with the guy explaining why each was wrong, before he told us the answer: outfielder Harry Hooper.
We started back, stopping for a fast food lunch in Otego, coincidentally the same exit at which we had stopped for lunch the day before. Our last stop was a gas stop, which was, again coincidentally, in Astabula. Much good conversation the whole way. A most memorable and pleasurable trip.
We had seats down the left-field line, which gave us a good view of the Indians' two best players, shortstop Francisco Lindor and third baseman Jose Ramirez. Lindor made a sparkling play in the very first inning, diving to his right to smother a ground ball, and then getting up and nonchalantly throwing out the batter at first. A few innings later, left fielder Michael Brantley made a nice running catch in the left field corner near the foul line. And late in the game, Lindor made another fine play, backhanding a sharp grounder on the first hop, and then taking his time to throw out the runner at first. Jason Kipnis also made a couple of nice plays at second, going far to his right to backhand grounders, and then throwing out the runners on close plays at first. (A guy sitting in front of us was bad-mouthing Lindor the whole game, but backed off a bit towards the end and claimed that it was only his hitting he was complaining about.)
Despite the cold weather, the game was well-played in a crisp 2:47. There were few walks, few mound visits, and only one error. Ramirez started the scoring in the first with a solo homer. Indians' starter Mike Tomlin made the lead stand up during his time on the mound, though he had to pitch out of trouble a few times, and his strike-ball ratio was so bad that he was lifted after the 5th due to his high pitch count.
Three Indians' relievers shared the next two innings, with the Tigers tying it up in the 7th. Then in the 8th star reliever Andrew Miller came in, to much fanfare highlighted by fire showing on the scoreboard around the phrase "Miller time". Light-hitting back-up catcher Roberto Perez broke the 1-1 tie with a homer in the bottom of the 8th, and closer Cody Allen pitched the 9th for the save, giving Miller a rare win. This win put the Indians over .500 at 6-5, and at this writing they are in first in their division despite still being only one game above .500.
After the game we drove about an hour and stopped at a motel in Ashtabula for the night. The next day we continued to Cooperstown, driving through the northwest corner of Pennsylvania, then through the finger lakes area of New York, where there were few signs of farming, and arriving at Cooperstown at about 2:00 P.M.
We spent three hours at the museum, then had a leisurely supper and evening. I got to watch more TV than at any time during the past three and a half years. A program on the moose in Canada, and then the Rachel Maddow show, discussing the latest chaos of the Trump presidency.
The next morning was spent at the museum, taking in the part containing the plaques. Then we explored downtown Cooperstown, visiting several souvenir shops filled with baseball memorabilia. Since it was the offseason, the shop proprietors had little to do and were quite happy to converse with us. (Being the offseason also helped enormously with the motel rates.)
The visitors guides at the museum were uniformly helpful and friendly. One talked with us for quite some time, relating the visits from the new Hall members set to be inducted this summer. Trevor Hoffman and his wife cut the cake and served it to the museum staff, the first time this has ever happened, according to the guide. Alan Trammel also impressed the staff, as someone married since he was 20 and very much the unassuming and humble family man.
Chipper Jones was just the opposite, someone the women took a dislike to as he apparently is a well-known womanizer; he's now on his third wife, and has a son born out of an 18-month affair with a Hooters waitress during his first marriage. An interesting factoid about Chipper is that he and his current wife are expecting a child, the due date being on his induction date! They have checked out the Cooperstown hospital and plan to name the child "Cooper".
Some of the museum patrons were also quite friendly. One guy from Boston fired some trivia questions at us; the one I remember is "Who is the only player to play on each of the Sox' first four world championship teams?" I knew this was in the 1910s and made a few guesses, with the guy explaining why each was wrong, before he told us the answer: outfielder Harry Hooper.
We started back, stopping for a fast food lunch in Otego, coincidentally the same exit at which we had stopped for lunch the day before. Our last stop was a gas stop, which was, again coincidentally, in Astabula. Much good conversation the whole way. A most memorable and pleasurable trip.
Friday, April 6, 2018
The State of Invasion of Privacy Law
I have studied three invasion of privacy cases in recent years. I will summarize the teachings of each in an attempt to understand the current state of the law.
1. Oliver Sipple (1984). Sipple was a gay man who saved the life of President Ford in 1975. His invasion of privacy suit was unsuccessful for two reasons: one, the subject-matter of the publicity complained of was of legitimate public concern; and two, knowledge of his sexual orientation was already in the public domain due to Sipple's frequent gay rights activism.
2. Hulk Hogan (2016). Hogan was successful, putting Gawker out of business for publishing a video of Hogan having sex. The case stands for the principle that, in the Internet era, courts are no longer going to defer to the media to determine what is considered "newsworthy"
3. Olivia de Haviland (2018). Principle here is, don't sue the movie industry in California.
The Hogan case was such an oddball case, relying as it did on the idea that Hulk Hogan and his creator, Terry Bollea, were two separate entities, that I don't see much precedential value here. I think, therefore, that the right of free speech in this country is still alive and well, though under attack, and would-be plaintiffs still should think long and hard before pursuing a dubious privacy claim.
1. Oliver Sipple (1984). Sipple was a gay man who saved the life of President Ford in 1975. His invasion of privacy suit was unsuccessful for two reasons: one, the subject-matter of the publicity complained of was of legitimate public concern; and two, knowledge of his sexual orientation was already in the public domain due to Sipple's frequent gay rights activism.
2. Hulk Hogan (2016). Hogan was successful, putting Gawker out of business for publishing a video of Hogan having sex. The case stands for the principle that, in the Internet era, courts are no longer going to defer to the media to determine what is considered "newsworthy"
3. Olivia de Haviland (2018). Principle here is, don't sue the movie industry in California.
The Hogan case was such an oddball case, relying as it did on the idea that Hulk Hogan and his creator, Terry Bollea, were two separate entities, that I don't see much precedential value here. I think, therefore, that the right of free speech in this country is still alive and well, though under attack, and would-be plaintiffs still should think long and hard before pursuing a dubious privacy claim.
Wednesday, April 4, 2018
California court delivers stinging rebuke to Olivia de Havilland, and strong support for free speech
Olivia de Haviland sued FX Networks in response to a TV miniseries entitled Feud: Bette and Joan. The trial judge ruled that the case could proceed, resulting in the network's appealing to the California Court of Appeal, which ruled against de Haviland and required her to pay the winner's attorney fees.
The opinion is a great example of a court using common sense. People who feel the law is too technical or arbitrary should read this opinion to see how common sense can prevail in court decisions.
De Haviland's lawyers stressed that she didn't give her consent for this portrayal, even though it is customary to obtain such consent. The court made it clear there is no requirement to obtain consent to portray a living person, saying that "Whether a person portrayed in one of these expressive works is a world-renowned film star--'a living legend'--or a person no one knows, she or he does not control history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator's portrayal of actual people."
California has an interesting (and perhaps unique) statute at play here, called the anti-SLAPP statute. This statute, enacted in 1992, was a response to what the legislature called "a disturbing increase in lawsuits brought primarily to chill the valid exercise...of freedom of speech..." Such lawsuits are subject to "a special motion to strike", which in turn require the plaintiff to establish a probability of prevailing on the claim. If the defendant prevails on the motion to strike, the statute says that said defendant "shall be entitled to recover his or her attorney's fees and costs." Note the "shall"--it is mandatory.
The Motion to strike was invoked here and the appellate court eviscerated the plaintiff's frivolous claims. Her four purported claims are the following:
1. Common law privacy tort of misappropriation. This claim can be colloquially called "invasion of privacy". It is entirely spurious in this case, as de Haviland is a public figure, and furthermore, the portrayal was substantially accurate. Beyond that, the court stressed that the actress playing de Haviland was only on screen for a small fraction of the series' running time (fewer than 17 minutes out of 392 minutes total), and the series was not really even about her. The privacy of the 101-year-old de Haviland was in no way invaded.
2. Violation of the California statutory "right of publicity". This statute prohibits the use of someone's "name, voice, signature, photograph, or likeness,, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or service, without such person's prior consent." The court noted that the cases in this area involve merchandise such as T-shirts and lithographs, but the statute does not apply to works of art such as TV shows, books, plays, or films. The court cited a recent precedent which stated that "Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a person's name, features, or biography in a literary work, motion picture, news or entertainment story. Only the use of an individual's identity in advertising infringes on the persona."
3. False light invasion of privacy. An example of how frivolous de Haviland's claims are in this area is that one of her claims is that the show had her calling her sister, Joan Fontaine, a "bitch", when the actual term she had use in real life was "Dragon Lady". The court of course held this acceptable, for many reasons which I won't go into detail here.
4. Unjust enrichment. This last is really a joke, as "unjust enrichment" is not even a cause of action! It is simply a restitution claim, i.e., a way of calculating damages.
This case is significant and interesting for a variety of reasons, which I will try to discuss.
1. It is obvious that the California legislature, perhaps the most proactive legislature in the country, has tried hard to clarify the scope of two important rights: one, the right of a movie star to prevent his or her likeness from being used to promote products without permission; and two, the free speech right of the movie industry to make movies. We can only imagine how muddled the situation must have been when these issues were left up to the courts. The legislature surely felt compelled to step in and clarify the rules in this area, and it did so admirably. This case illustrates how a court can and should analyze a given fact situation and clarify the extent of each of these California laws.
2. The fact that the award of attorney's fees to a prevailing defendant is made mandatory shows how rampant the use of frivolous lawsuits had become prior to he law. The legislature clearly wanted to strike a strong blow in favor of free speech (i.e., in favor of the movie-making industry).
3. The case illustrates the American tendency for people to run to the courts for redress whenever they feel they have been wronged. Few wrongs in life are redressable by the court system. And here, de Haviland was not even wronged, as the court's opinion so eloquently shows.
4. Related to #3 is that Americans have established a culture of victimization. If something bad happens to an individual, it is because of that person's race, ethnicity, religious affiliation, etc. The "abuse excuse" is often used to explain away criminal actions, though it rarely succeeds. (A notable exception is the "battered woman's syndrome", which has been accepted to justify a woman's killing a man while he sleeps in bed.) If we see ourselves as victims, rather than as autonomous actors, we are more likely to blame others and look to the courts for redress.
5. There has been a lot of hysteria recently about the so-called "right of privacy", and this case should provide a useful counterweight to this hysteria. The United States ranks poorly among developed nations in the happiness index precisely because people have too much privacy; i.e., we have not enough of a sense of community and connectedness to our fellow humans. This whole privacy craze is a mostly bogus issue, as shown by the recent Facebook kerfuffle, in which nobody was hurt by the release of data which gets aggregated to show tendencies in support of a candidate or product. Another example is the EU harassment of Google, requiring Google to delete supposedly "stale information" even though it is true information.
The opinion is a great example of a court using common sense. People who feel the law is too technical or arbitrary should read this opinion to see how common sense can prevail in court decisions.
De Haviland's lawyers stressed that she didn't give her consent for this portrayal, even though it is customary to obtain such consent. The court made it clear there is no requirement to obtain consent to portray a living person, saying that "Whether a person portrayed in one of these expressive works is a world-renowned film star--'a living legend'--or a person no one knows, she or he does not control history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator's portrayal of actual people."
California has an interesting (and perhaps unique) statute at play here, called the anti-SLAPP statute. This statute, enacted in 1992, was a response to what the legislature called "a disturbing increase in lawsuits brought primarily to chill the valid exercise...of freedom of speech..." Such lawsuits are subject to "a special motion to strike", which in turn require the plaintiff to establish a probability of prevailing on the claim. If the defendant prevails on the motion to strike, the statute says that said defendant "shall be entitled to recover his or her attorney's fees and costs." Note the "shall"--it is mandatory.
The Motion to strike was invoked here and the appellate court eviscerated the plaintiff's frivolous claims. Her four purported claims are the following:
1. Common law privacy tort of misappropriation. This claim can be colloquially called "invasion of privacy". It is entirely spurious in this case, as de Haviland is a public figure, and furthermore, the portrayal was substantially accurate. Beyond that, the court stressed that the actress playing de Haviland was only on screen for a small fraction of the series' running time (fewer than 17 minutes out of 392 minutes total), and the series was not really even about her. The privacy of the 101-year-old de Haviland was in no way invaded.
2. Violation of the California statutory "right of publicity". This statute prohibits the use of someone's "name, voice, signature, photograph, or likeness,, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or service, without such person's prior consent." The court noted that the cases in this area involve merchandise such as T-shirts and lithographs, but the statute does not apply to works of art such as TV shows, books, plays, or films. The court cited a recent precedent which stated that "Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a person's name, features, or biography in a literary work, motion picture, news or entertainment story. Only the use of an individual's identity in advertising infringes on the persona."
3. False light invasion of privacy. An example of how frivolous de Haviland's claims are in this area is that one of her claims is that the show had her calling her sister, Joan Fontaine, a "bitch", when the actual term she had use in real life was "Dragon Lady". The court of course held this acceptable, for many reasons which I won't go into detail here.
4. Unjust enrichment. This last is really a joke, as "unjust enrichment" is not even a cause of action! It is simply a restitution claim, i.e., a way of calculating damages.
This case is significant and interesting for a variety of reasons, which I will try to discuss.
1. It is obvious that the California legislature, perhaps the most proactive legislature in the country, has tried hard to clarify the scope of two important rights: one, the right of a movie star to prevent his or her likeness from being used to promote products without permission; and two, the free speech right of the movie industry to make movies. We can only imagine how muddled the situation must have been when these issues were left up to the courts. The legislature surely felt compelled to step in and clarify the rules in this area, and it did so admirably. This case illustrates how a court can and should analyze a given fact situation and clarify the extent of each of these California laws.
2. The fact that the award of attorney's fees to a prevailing defendant is made mandatory shows how rampant the use of frivolous lawsuits had become prior to he law. The legislature clearly wanted to strike a strong blow in favor of free speech (i.e., in favor of the movie-making industry).
3. The case illustrates the American tendency for people to run to the courts for redress whenever they feel they have been wronged. Few wrongs in life are redressable by the court system. And here, de Haviland was not even wronged, as the court's opinion so eloquently shows.
4. Related to #3 is that Americans have established a culture of victimization. If something bad happens to an individual, it is because of that person's race, ethnicity, religious affiliation, etc. The "abuse excuse" is often used to explain away criminal actions, though it rarely succeeds. (A notable exception is the "battered woman's syndrome", which has been accepted to justify a woman's killing a man while he sleeps in bed.) If we see ourselves as victims, rather than as autonomous actors, we are more likely to blame others and look to the courts for redress.
5. There has been a lot of hysteria recently about the so-called "right of privacy", and this case should provide a useful counterweight to this hysteria. The United States ranks poorly among developed nations in the happiness index precisely because people have too much privacy; i.e., we have not enough of a sense of community and connectedness to our fellow humans. This whole privacy craze is a mostly bogus issue, as shown by the recent Facebook kerfuffle, in which nobody was hurt by the release of data which gets aggregated to show tendencies in support of a candidate or product. Another example is the EU harassment of Google, requiring Google to delete supposedly "stale information" even though it is true information.
Monday, March 26, 2018
2018 MLB Predictions
Here we go for the new season!
AL East: Yankees, Red Sox, Blue Jays, Orioles, Rays
AL Central: Indians, Twins, Royals, White Sox, Tigers
AL West: Astros, Angels, Mariners, Rangers, A's
NL East: Nationals, Mets, Phillies, Braves, Marlins
NL Central: Cubs, Cardinals, Brewers, Reds, Pirates
NL West: Dodgers, Giants, D-Backs, Rockies, Padres
The last-place teams are easy picks, as all are in the early stages of a rebuilding process, except for the Padres who signed Eric Hosmer in the off season. Giants have improved through off season moves and should have a better season than in 2017. Yankees have obviously improved also. Indians have suffered free-agency losses and will win fewer games than in 2017, but should hold on for another division title given their weak competition in the AL Central.
10/12/18 update. The season ended in exciting fashion, with ties in the NL Central and NL West, necessitating one-game playoffs to determine the division winners. In each case, the losers went on to secure a wild card berth. The Brewers beat the Cubs in the Central, and in the West it was Dodgers over the Rockies,. The Rockies beat the Cubs in the Wild Card game the next day, and then went on to lose the Division Series to the powerful Dodgers.
The Red Sox set a new franchise record with 108 wins. Other surprises were the Brewers, who finished on a nice season-ending winning streak to tie the Cubs and then win the one-game playoff, the Athletics, who won 97 games and secured a Wild Card berth, and the Braves, who won the NL East by 8 games over the disappointing Nationals.
My predictions were beaten by USA Today, Sports Illustrated, and Bleacher Report. My worst miscues were picking the Royals 3rd, picking the Reds 4th, and picking the Giants 2nd.
AL East: Yankees, Red Sox, Blue Jays, Orioles, Rays
AL Central: Indians, Twins, Royals, White Sox, Tigers
AL West: Astros, Angels, Mariners, Rangers, A's
NL East: Nationals, Mets, Phillies, Braves, Marlins
NL Central: Cubs, Cardinals, Brewers, Reds, Pirates
NL West: Dodgers, Giants, D-Backs, Rockies, Padres
The last-place teams are easy picks, as all are in the early stages of a rebuilding process, except for the Padres who signed Eric Hosmer in the off season. Giants have improved through off season moves and should have a better season than in 2017. Yankees have obviously improved also. Indians have suffered free-agency losses and will win fewer games than in 2017, but should hold on for another division title given their weak competition in the AL Central.
10/12/18 update. The season ended in exciting fashion, with ties in the NL Central and NL West, necessitating one-game playoffs to determine the division winners. In each case, the losers went on to secure a wild card berth. The Brewers beat the Cubs in the Central, and in the West it was Dodgers over the Rockies,. The Rockies beat the Cubs in the Wild Card game the next day, and then went on to lose the Division Series to the powerful Dodgers.
The Red Sox set a new franchise record with 108 wins. Other surprises were the Brewers, who finished on a nice season-ending winning streak to tie the Cubs and then win the one-game playoff, the Athletics, who won 97 games and secured a Wild Card berth, and the Braves, who won the NL East by 8 games over the disappointing Nationals.
My predictions were beaten by USA Today, Sports Illustrated, and Bleacher Report. My worst miscues were picking the Royals 3rd, picking the Reds 4th, and picking the Giants 2nd.
Wednesday, January 31, 2018
Hillary Clinton's Campaign Memoir
The latest issue of The New York Review of Books contains a long essay by Annette Gordon-Reed discussing the 2016 campaign, and Clinton's book What Happened about that campaign. The essay was quite disappointing in its preoccupation with the gender (non)issue.
The reasons Clinton lost are quite obvious to any objective observer, and have little or nothing to do with gender. Clinton simply failed to connect with the average voter. To put the same thing another way, she failed to articulate any compelling reason for why she was running for president, and hence, for why anyone should vote for her.
Clinton lost because she came across as stiff, stilted, dull, boring, robotic, lacking in spontaneity, uninspiring, lacking in passion, uncomfortable in her own skin, unable to think on her feet, and without a sense of humor. This observation has nothing to do with gender--many male candidates have suffered from the same type of problem (Jimmy Carter in 1980, Michael Dukakis in 1988, Al Gore in 2000, and George Romney in 2012, to name a few recent ones).
I will be glad when politicians and the media get away from this whole "identity politics" obsession, and start focusing instead on real issues and honest evaluations of why voters vote for a particular candidate. And yes, like it or not, "likability" is a big factor, regardless of gender.
Tuesday, January 23, 2018
"Grant", By Ron Chernow
This new biography of our eighteenth president seeks to upgrade the image of Grant among historians. It seems to have succeeded, as Grant is now ranked in the middle of the latest C-SPAN rankings, instead of near the bottom as he used to be. Chernow's thesis is that, while Grant got many of the small things wrong, he got the big things right.
It is a very thorough book, running to about a thousand pages.A major theme running throughout the book is Grant's guileless, overly trusting nature. This caused him to keep men in office who turned out to be crooks. Similarly, after his presidency, he trusted a bonds trader with all his savings, and all of his children's savings, only to learn too late that the guy was a narcissistic crook.
Another theme is Grant's ability to make major decisions in an instant. As a Civil War general this trait stood him in good stead, and he was much admired for it. However, as a president the result was just the opposite, as he seemed incapable of consulting with others before making decisions. For example, he kept his cabinet appointments secret from everyone, and then announced them en masse on his first day in office. He was lucky in getting a top-notch Secretary of State in Hamilton Fish, but his other appointments were mostly failures.
Misplaced loyalty was another theme, as Grant refused to abandon his bad appointments, even after they had proven to be failures at their jobs, or, in many cases, crooks.
Grant's great strength as president, according to Chernow, is his humane treatment of the freed slaves. He acted as best he could to use federal power to protect blacks from the persecution they faced throughout the South during his presidency. However, during the last two years of his presidency, the north had grown tired of being in charge of the southern states, and Grant became limited in what he could get away with politically in policing the south.
Similarly, Grant was humane and inclusive in his treatment of Jews during his presidency, atoning for a Civil War blunder in which he issued an order banishing all Jews from the three southern states under his control. He said later that he had issued the order in haste, and had he thought about it first he never would have issued it. At any rate, at his death Jewish organizations were universal in their praise of his humane treatment of Jews during his lifetime.
A major foreign policy accomplishment was his peaceful resolution of a conflict with Great Britain over Britain's providing the ship Alabama to the South during the Civil War. The Alabama inflicted great damage on the North, and the more radical element in the North blamed it for prolonging the war by several years. Grant and his Secretary of State Fish were able to get Britain to agree to binding international arbitration of the claim, resulting in an award that settled all issues and made it possible for the U.S. and Britain to become good friends, instead of going to war. This is said to be the first such use of arbitration to settle an international dispute.
My own conclusion after reading his book is to elevate Grant to a slightly higher ranking, but not quite all the way to the middle of the pack.
It is a very thorough book, running to about a thousand pages.A major theme running throughout the book is Grant's guileless, overly trusting nature. This caused him to keep men in office who turned out to be crooks. Similarly, after his presidency, he trusted a bonds trader with all his savings, and all of his children's savings, only to learn too late that the guy was a narcissistic crook.
Another theme is Grant's ability to make major decisions in an instant. As a Civil War general this trait stood him in good stead, and he was much admired for it. However, as a president the result was just the opposite, as he seemed incapable of consulting with others before making decisions. For example, he kept his cabinet appointments secret from everyone, and then announced them en masse on his first day in office. He was lucky in getting a top-notch Secretary of State in Hamilton Fish, but his other appointments were mostly failures.
Misplaced loyalty was another theme, as Grant refused to abandon his bad appointments, even after they had proven to be failures at their jobs, or, in many cases, crooks.
Grant's great strength as president, according to Chernow, is his humane treatment of the freed slaves. He acted as best he could to use federal power to protect blacks from the persecution they faced throughout the South during his presidency. However, during the last two years of his presidency, the north had grown tired of being in charge of the southern states, and Grant became limited in what he could get away with politically in policing the south.
Similarly, Grant was humane and inclusive in his treatment of Jews during his presidency, atoning for a Civil War blunder in which he issued an order banishing all Jews from the three southern states under his control. He said later that he had issued the order in haste, and had he thought about it first he never would have issued it. At any rate, at his death Jewish organizations were universal in their praise of his humane treatment of Jews during his lifetime.
A major foreign policy accomplishment was his peaceful resolution of a conflict with Great Britain over Britain's providing the ship Alabama to the South during the Civil War. The Alabama inflicted great damage on the North, and the more radical element in the North blamed it for prolonging the war by several years. Grant and his Secretary of State Fish were able to get Britain to agree to binding international arbitration of the claim, resulting in an award that settled all issues and made it possible for the U.S. and Britain to become good friends, instead of going to war. This is said to be the first such use of arbitration to settle an international dispute.
My own conclusion after reading his book is to elevate Grant to a slightly higher ranking, but not quite all the way to the middle of the pack.
Friday, January 19, 2018
The Archaic Senate Rules
An article by Edward Whelan in the latest issue of "National Review" highlights the archaic nature of Senate rules. Whelan describes how easy it would be for the Democratic minority in the Senate to block consideration of Trump appointments to the existing 70 vacancies in the federal court system.
Even though cloture (cutting off debate) now requires only 51 votes, instead of 60 as was previously the case, the cloture process itself is still quite cumbersome and time-consuming. Whelan says that the rules require that the Senate must wait two business days before voting on a cloture motion. If the cloture motion is successful, debate can still continue for 30 more floor hours. It is easy to see that, under these rules, the Democrats could conceivably tie up the Senate for the bulk of the 2018 year with delaying tactics on the 70 different nominees for judgeships.
What I'm wondering is this: why doesn't the Senate simply change the rules with regard to how cloture motions are handled? It would seem to be a simple matter to do so, just as the Senate changed the required majority for a cloture vote from three-fifths to a simple majority.
In a long article entitled "Nuclear Option", Wikipedia describes how the prevailing view is that it requires only a simple majority for the Senate to change its rules. In light of this, the continuation of archaic rules is inexplicable, as well as inexcusable.
Even though cloture (cutting off debate) now requires only 51 votes, instead of 60 as was previously the case, the cloture process itself is still quite cumbersome and time-consuming. Whelan says that the rules require that the Senate must wait two business days before voting on a cloture motion. If the cloture motion is successful, debate can still continue for 30 more floor hours. It is easy to see that, under these rules, the Democrats could conceivably tie up the Senate for the bulk of the 2018 year with delaying tactics on the 70 different nominees for judgeships.
What I'm wondering is this: why doesn't the Senate simply change the rules with regard to how cloture motions are handled? It would seem to be a simple matter to do so, just as the Senate changed the required majority for a cloture vote from three-fifths to a simple majority.
In a long article entitled "Nuclear Option", Wikipedia describes how the prevailing view is that it requires only a simple majority for the Senate to change its rules. In light of this, the continuation of archaic rules is inexplicable, as well as inexcusable.
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