Silly Libertarians

I was really hoping this article/speech by Bradley Smith, former FEC commissioner, would give me a chance to discuss the substantive objections to campaign finance reform. Then the guy referred to the Microsoft antitrust litigation as a "seemingly senseless regulatory legal assault" intended to extract campaign contributions from Microsoft. Uhh, right. It's amazing how quickly a person can drag their credibility through the gutter.

Smith's analysis of the harms of unregulated campaign money is largely limited to efforts to find quid pro quo returns on investment for corporate contributors. He takes this as far as analysis of the stock market reaction to McConnell v. FEC for companies that make political soft money contributions. What is this supposed to prove?

This sort of analysis is overly complex and makes it difficult to produce any sort of meaningful empirical data. What sort of scorecard do you use here? There is plenty of anecdotal evidence of influence (not least of which the Microsoft example that Smith himself raised). Smith acknowledges that the data he presents has many critics, but claims that since they don't have better data, that makes his data somehow valid.

A simpler analysis is this: our system is based on democratic, one person-one vote principles. Does campaign money subvert those principles? Does it give influence beyond one-vote to big money donors?

In this view the analysis of harms should be considered from the other end. Does the money influence election outcomes? According to opensecrets.org, the odds of a challenger for a house seat in 2000 beating an incumbent were nil for challengers who raised under $500k, 24:1 for challengers with $500k-$1m, 15:1 for challengers with $1m-$1.5m, and 3:1 for challengers with over $1.5m. That looks a lot like influence. Obviously there are still confounding factors here (primarily that one might suppose that campaign money flows to more attractive candidates). But this seems like more meaningful data than the sort referenced by Smith. Additionally you've got quotes like this one (one of my all-time favorites) from Senator Fritz Hollings:

"The body politic has got a cancer of money. I ran in 1998, and I raised $8.5 million. That's about $30,000 a week, each week, every week, for six years. If I missed Christmas and New Year's weeks, I'm $100,000 in the hole. So the race begins the next day [after your election]. We're collecting for six years out. That means we don't work on Monday. We don't work on Friday. I've got to get money, money, money, money. And I only listen to the people who give me money. With the shortage of time and everything else, you've got to listen to the $1,000 givers. I mean, no individual is corrupt, but the body has been corrupted."

It seems, to me at least, fairly obvious that money impacts election results. It seems also obvious that this gives political power to people who wield that money. That is problematic for a one person-one vote system. Smith never discusses this problem.

But he does talk about other evidence of corruption, apparently to show that BCRA is insincere. The hiring of spouses and children of politicians as lobbyists, contributions to personal foundations, and book contracts, for example. Frankly this only amplifies the need for regulation of money in politics. If anything this should support expanding BCRA into broader territory.

Smith criticizes McCain for speaking at a fund-raising dinner for the Brennan Center that raised money to support BCRA and to help defend it against McConnell's legal challenge. Apparently McCain also raises money to support campaign finance reform through his own Reform Institute. This is the sort of self-defeating argument often leveled at McCain and Feingold and other finance reformers: how can they argue for campaign finance reform when they accept the sort of contributions they argue against? A better question would be: if their argument is premised on the fact that the current political environment makes it necessary to raise large sums of money to get anything accomplished, how could McCain and Feingold hope to accomplish anything without raising money? Only people in the system can change the system. They have to play the game to change the rules. And ultimately this is not a discussion of the substantive merits of the issue anyway. It is merely smear attack against proponents of reform.

Here's an interesting thought I'd like to see some of these folks discuss. The Supreme Court appears to be increasingly coming under the control of Scalian originalists. There is a strong argument to be made that the original meaning for the First Amendment was merely to prevent prior restraint of speech. This was a system used in England where printers needed to get prior government authorization of material to be printed. The Sedition Act of 1798, for example, seems to our sensibilities to be a clear violation of the First Amendment. But no one seriously thought it was a violation at the time, and the courts never struck it down. The Republican (Jeffersonian) reaction against the Act was politically motivated (it was a Federalist device to squelch Republican press) and focused on the issue of federalism rather than the First Amendment. It did not implement prior restraint, and it allowed truth as a defense. This was free speech as compared to the English system. An originalist interpretation of the First Amendment would create a tremendous amount of breathing room for campaign regulation. I wonder how keen some of the conservative court cheerleaders would be for that..

The Cold War Wasn't So Cold

Timothy Noah has a great column on Slate about post-Cold War decline of global violence. Noah rightly points out that while the Cold War may have been cold for Americans and Soviets, it was hot as can be for many third world nations where we staged proxy wars. These, not coincidentally, are many of the nations we now refer to as "failed states" and worry about as sources of terrorism. This is an important element of framing in the GWOT discussion. It is easy for diplomats and statesmen to get caught up in the Great Game, but nations and peoples are not chess pieces and this is a game more complex and unpredictable than our leaders generally imagine.

Stop Being So Damned Sensible, RJ Samuelson

Samuelson on presidents and the economy. This guy puts other political writers to shame every week. He is the guru of Reality-Based Policy.

Democracy Doesn't Mean You Can Vote for Hamas

Speaking of problems with democracy.. CSM reports that Hamas is appearing increasingly dominant in Palestinian elections. First off, I told you so. That aside, the E.U. and the U.S. are quite unhappy about this turn of events and are threatening repercussions should Hamas gain a majority of the Palestinian legislative council. Not so excited about democracy anymore? It's not at all clear yet that Hamas could win a national majority, but if they do, the E.U. will demand that they renounce violence or forfeit aid money (as if that ever stopped Arafat's Fatah party from doing anything). The U.S. House of Representatives recently passed a resolution threatening to cut off all support for the Palestinian Authority if Hamas has any participation in the government.

This is pure stupidity. I've argued before, and I'm sure I'll argue again, that there will not be a peaceful settlement of this conflict without Hamas' participation. They already have an effective veto over the process through violence, which they exercised over the Oslo agreement. It sure seems like it would be better for everyone if they could exercise their veto through voting in the Palestinian legislature rather than through detonating bombs in cafes in Jerusalem. Here there is an opportunity to mainstream Hamas, to bring political leaders within the organization to its front and into legitimate negotiating positions, and to support and strengthen Palestinian democracy, all in one blow. And it looks like we want to squander the opportunity...

Spreading Democracy

I haven't had a Democracy is Hard to Do(TM) post for a while, so here's a good one. Fred Kaplan discusses a book called Electing to Fight in relation to the recent elections in Iraq. The book argues that emerging democracies are more prone to violence and instability than any other type of government, and stresses the importance of establishing democratic institutions over holding elections. They see all the hallmarks of disaster in the emerging Iraqi government. Established democracies, they agree, tend to be peaceful. But the process of democratizing is dangerous and loaded with pitfalls.

A Healthy Change for the Military

I've complained about this more than a few times, so I'd like to give some recognition where it's due. It seems the U.S. military has (somewhat belatedly) realized that peace-making and peace-keeping (that dreaded nation-building stuff) is an important part of their mission and something that they should train their soldiers to do. This may come too late for Iraq, but it's a step in the right direction.

The End of Faith, God Willing

I recently finished reading Sam Harris' book The End of Faith. It was a fascinating read that really made me rethink the utility and danger of faith, most prominently demonstrated by religion. In particular, Harris is concerned by faith that is out of reach of both criticism and debate. This is especially dangerous in the Big Three religions (Judaism, Christianity, Islam), all of which claim that their religion is the only true religion and that those not subscribing to it are damned. Thus the setup for inevitable conflict. The only reason that Christianity has mellowed, Harris claims, is due to secular influences. I would very much agree.

Such criticism of faith and religion is not new. What was new to me, however, were Harris' criticisms of religious moderates. He claims that moderates are complicit in the acts of terrorism or harm done by religious extremists. Because moderates believe in at least some of the dogma of a given religion, they have no grounds on which to argue against a completely literal interpretation of the religious text. In other words, they are on the same spectrum of belief as the extremist, where at some level their faith becomes dissociated from reason.

Harris covers a broad range of topics in the book. One I would like to mention is torture, given the recent press coverage and Joe's recent post (see Torture Nation, 10/7). Harris' arguments were a little harder to follow here, but I believe his main thrust is that torture is no different than collateral damage caused in a war. In other words, in fighting a war, both are potential unfortunate consequences necessary to succeed. He seems to forget about intention through all of this: there is certainly no intention to kill innocent bystanders in a war (although we might expect this to happen), but there is clearly intention to torture someone as a means to an end.

With that said, I continue to struggle with the torture issue. In the oft-cited example, a captive holds information about a bomb he has planted that will kill thousands of people, but he is unwilling to give that information. Should he be subject to torture that we might save thousands of lives? Assuming we know him to be guilty and involved, the answer is clearly yes from a utilitarian perspective. And yet, therein lies the potential of gross misuse of torture, for how can we ever truly know whether we have the right man? Is the information gained by torture reliable? From a practical standpoint at least, there are many doubts about cost-benefit of torture.

I would encourage everyone out there to read Harris' book (by the way, Harris has a degree in philosophy and is a doctoral candidate in neuroscience - I love him already). I would also love to hear any discussion on these issues. Some excerpts from the book you might enjoy:

“Tell a devout Christian that his wife is cheating on him, or that frozen yogurt can make a man invisible, and he is likely to require as much evidence as anyone else, and to be persuaded only to the extent that you give it. Tell him that the book he keeps by his bed was written by an invisible deity who will punish him with fire for eternity if he fails to accept its every incredible claim about the universe, and he seems to require no evidence whatsoever.” (page 19)

“We live in an age in which most people believe that mere words— ‘Jesus,’ ‘Allah,’ ‘Ram’—can mean the difference between eternal torment and bliss everlasting. Considering the stakes here, it is not surprising that many of us occasionally find it necessary to murder other human beings for using the wrong magic words, or the right ones for the wrong reasons. How can any person presume to know that this is the way the universe works? Because it says so in our holy books. How do we know that our holy books are free from error? Because the books themselves say so. Epistemological black holes of this sort are fast draining the light from our world.” (page 35)

Fuck Iowa and New Hampshire

Pardon my language, but seriously. I can't believe this is the best we can do to remove their nominating privilege. And still they bitch and complain. Let them have their primaries last, I say. Actually, I say let's have a national primary. Please! I understand that arguments about how this would decrease attention to the individual states (particularly small states), and I sympathize with that. But the way the press covers these things (something around 80% of the coverage is coverage of the "horse race" rather than coverage of candidates and issues), and the way people react to it (voters in later primaries vote to reward winners in early primaries), the primaries are effectively over after the first 4-5 states. Better to have the states get less personal attention than to have the same five states select the presidential nominee and have everyone else locked out of the process.

Memo to South Korea

Dear South Korea,

Apparently you have not figured out how this antitrust thing works. The proper procedure after you find Microsoft guilty of multiple antitrust violations is to roll over and play dead. Alternately you could send Bill Gates a fruit cake. Certainly you don't make them remove Windows Messenger from their operating system, because that harms customers, who obviously have no reason to want Windows without Messenger. Please try to learn from our example.

Thanks,
U.S. Department of Justice, Antitrust Division

Gold Rush

It's been some time since I've posted anything on currency issues. It appears Henry was ahead of the curve on investing in gold. Gold recently hit a 22-year high, and is getting a fair amount of attention from the press. The very fact of this attention may signal that the market has already made its move, at least for now. But score one for the anti-fiat-currency libertarians...

Torture Nation

I had thought that the Bush administration's policies favoring torture grossly misrepresented America's values to the world. Apparently not. The polling data at the bottom of this CSM story little more than a third of Americans believe that torture should not be used in interrogations. A slightly higher number favor the use of torture "sometimes" or "often". Have we always been like this? Or has the media's "fairness" on this controversy (treating both sides as substantively equal) legitimized torture for some Americans? It's disturbing in any case...

Stylin' Like Saddam

Ths is weird, yet somehow predictable...

The Sweet Smell of Corruption

CSM is also running a wonderful editorial on corruption in Congress. It still burns me up how many people argue against campaign finance reform...

Expert Opinions on Iraq

CSM has a bit on a Strategic Studies Institute report on the continuing occupation of Iraq. The authors doubt that the U.S. will be able to put down the insugency before leaving, or train Iraqi security forces sufficiently to do the job themselves. Moreover, they suggest that the U.S. start to consider that an undemocratic government may be necessary to create a stable Iraq. Additionally they argue that a timetable for withdrawal would not be helpful.

There is also a link to an NPR interview with a former director of the NSA, who argues that the best thing we can do for democracy in Iraq is leave now.

The Brick Testament

It never ceases to amaze me what people put on the internet. Brilliant.

So Stupid It Hurts

So we're planting P.R. pieces in Iraqi media outlets. I can't say I'm shocked. As some of the comments in the story point out, these sorts of stunts continue to drag our credibility through the mud. I can't help but recall the Defense Science Board's insightful Report on Strategic Communication (blogged here). Now a year old, I still believe it to be the single most intelligent document on the War on Terror. The report stated:

"Information saturation means attention, not information, becomes a scarce resource. Power flows to credible messengers. Asymmetrical credibility matters. What's around information is critical. Reputations count. Brands are important. Editors, filters, and cue givers are influential. Fifty years ago political struggles were about the ability to control and transmit scarce information. Today, political struggles are about the creation and destruction of credibility."

There are some very smart people in our government. Sad that nobody pays attention to them. Al Qaeda doesn't need to destroy our credibility. We do it to ourselves, over and over and over again.

Exercises In Futility

I feel somehow obligated to blog articles where some poor idealistic fool writes about the budget deficit and fiscal discipline. As if anyone cared. I have to say I like the line about the House deficit reduction plan giving new meaning to the phrase "women and children first" (I wish Holt would have said who originated it).

Random thought: I know there are various organizations that send questionnaires to political candidates to survey their positions on various issues. I'd like to see one in the form of a spreadsheet that provides an extremely dumbed down version of the federal budget (ie. on the income side provide the rates of the major tax brackets (with built in calculations to reflect the revenue change that results from adjustments to the rates) and an "other" category encompassing everything else, on the spending side have military (including foreign interventions), social security, medicare/medicaid, homeland security, and "other" encompassing everything else). On one line have the actual numbers as of this year. On the next line invite the candidate to fill in the budget that they would institute if they were king. I'm tired of politicians talking about reducing the deficit, but never committing to any sacrifice (on either the tax side or spending) that would make it happen. This system would apply a very simple reality check to the usual B.S. rhetoric.

Can This Be Real?

Cuz it kind of looks like it is. The U.S. denies it, while the UK seems more concerned with supressing the potentially incriminating evidence, but the story going around is that Bush wanted to bomb Al Jazeera. In Qatar. And wasn't joking. Reportedly, Blair talked him out of it. I imagine his exact words were something like: "Are you out of your fucking mind, you daft bastard?!" Just when you think you've heard it all...

Update: Howard Kurtz had the same reaction - "can this possibly be real?" His conclusion? No, based on the fact that it would be unbelievably stupid. Like that's ever stopped this administration before... I think the least credible part of the story is the fact that Bush would run it by Blair before he did it.

Idiot America

Consider this a follow-up to my Defense of Intellectualism from Sept. 5. There is an Esquire article by Charles Pierce rambling across blogs and internet message boards titled Greetings from Idiot America, reprinted in full in many cases (almost certainly without permission, but what the hell). Here's one of the reprints. It is, I think, an issue of critical importance, but one on which I have no idea how we can gain traction. One would hope that the utter disaster that has been Bush's gut-based presidency would have some impact, but the man did after all win reelection...

The Murtha Discussion

Aside from the laughable attempts to tar Congressman Jack Murtha as a coward or Michael Moore, the more serious conservative response to Murtha's proposal to leave Iraq is well stated by neocons Bob Kagan and Bill Kristol in this Weekly Standard article. Murtha gave no consideration to the consequences of our leaving Iraq, they complain. The Iraqi military lacks the capacity to stand on its own, they argue (sidenote: but haven't we been constantly hearing about the many thousands of Iraqi troops who have been trained for a couple years now? I guess that was all BS. But then we already knew that..). There could be civil war, and in any case it will be a huge victory for Al Qaeda, they worry.

I think these are good considerations and important points, but they miss a fundamental preliminary question: can we still win in Iraq? Because if we can't, every point raised by Kagan and Kristol is utterly irrelevant. Murtha argues that it is a lost cause. Unless that point is rebutted, his position must prevail over Kagan and Kristol's. They answer this charge with the flat statement that "victory is in fact possible, though it will require a longer war than anyone would like." That is not at all clear to me.

I have been (and remain) reluctant to abandon the mission in Iraq owing simply to the magnitude of our current obligation to the Iraqi people and the high stakes that Kagan and Kristol detail. However, I am becoming increasingly doubtful about our long term prospects for success in Iraq. I see no signs of the insurgency slowing or Iraqi government gaining control. As Murtha noted, the Iraqis don't want us there, and, in fact, at least some Iraqi leaders view the insurgency as legitimate resistance to occupation. There was a column by Helena Cobban (a CSM foreign affairs columnist) that I thought I had blogged (although it appears I never did) from the summer that presents a credible argument that our presence in Iraq is no longer helping matters. At this point I think we have to look very seriously at whether it is worth staying. I am on the threshold. The prospect of a civil war in Iraq worries me greatly. But if all we are doing is delaying it until our eventual and inevitable withdrawal, we are performing no great service. No matter the stakes, if we can no longer win this war, or if we are making matters worse by staying, we must withdraw.

In this case, Kagan and Kristol's points only go to underscore the general stupidity of the Iraq war in the first place. It was always a gamble of the highest stakes with dubious prospects of success. We have paid a high price for it already in many regards (casualties, money, reputation). Now whether we choose to remain or withdraw, the price will only escalate. I wonder if it is only now that the magnitude of this blunder is beginning to settle in for the neocons.

In the end, I believe this to be a more costly mistake than Vietnam. Where in Vietnam our policy was driven mostly by paranoia of communist dominoes falling (which never actually occurred), here I agree with Kagan and Kristol that this would be a victory for Al Qaeda of real importance. Al Qaeda has operated under the belief, drawn from U.S. interventions in Vietnam, Lebanon, and Somalia, and the Soviet experience in Afghanistan, that the West is weak and has no stomach for fighting. This is a fundamental element of their strategic approach and philosophy. And here, in the most high profile arena possible, we may prove them right. Nonetheless, we cannot allow this to obscure reality in making our choice. If truly this is a lost cause we must not throw more good lives and money after bad. Our military has been courageous and true, and we owe it to them. To quote John Kerry (from when he used to be cool): "How can you ask a man to be the last man to die for a mistake?"

A 21st Century Rivalry

There's a good story on CSM about China's growing military capacity. In particular it describes a rapidly growing modern core group within the military. It predictably focuses on China's improved ability to challenge the U.S. in Taiwan, but I think the more interesting issues lie further in the future and on a much broader scope.

It's a pretty common meme at this point that China is poised to emerge as a top global rival to the U.S. Assuming that China's economy continues to grow at a rapid rate (and there are some potential problems there, particularly in the banking system) this seems almost inevitable. But I think suppositions that this would somehow mirror the Cold War are dead wrong. I'm not sure how this rivalry would unfold, but I highly doubt that it would resemble the Cold War. The contours of the Cold War were defined by the all-encompassing differences in the economic systems of the two sides that made the complete severing of ties between them possible and desirable.

The key to China's growth has been the modernizing of its economy and its embrace of free trade. The U.S. and China a crucial trade partners, and I don't see that changing. While China will undoubtedly become more assertive in its foreign policy and more apt to challenge the U.S. as its military and economic power grows, there will be a huge economic incentive for China and U.S. not to let things get out of hand. Of course, both sides will need to be wary, as nationalism can lead people to do stupid things, and no doubt there will be domestic political points to be scored by railing against the other side (indeed this is already the case in the U.S.). Flashpoints will emerge and tensions will flare. But money speaks loudly, and I think will hold things together in this case. The dynamic between the U.S. and China will likely be something we haven't seen before.

Another Leak Investigation?

In the wake of the Washington Post's story on the CIA's secret detention facilities, it appears that we may see another high profile leak investigation. The CIA has requested that DOJ investigate the matter and pursue criminal charges for the release of classified information. Likewise (also mentioned in the NYT story) several top House and Senate Republicans have called for a joint Intelligence Committee investigation into the leak. Already several reports are drawing comparisons to the Judy Miller story (see Howard Kurtz's 11/14 column). I think this story would provide an excellent contrast to the Miller story.

The problem with Judy Miller's effort to hide behind press secrecy protection is that the facts of her case flew in the face of the intent of such protections. The idea is to protect whistle blowers and encourage them to bring to light topics, otherwise hidden from the public, that may be critical to the public discourse and democratic oversight of government actions. Judy Miller exposed details meant to crucify one such whistle blower, details that were otherwise irrelevant to the public discourse. Nor was it a simple or direct impeachment of Joe Wilson's credibility or an attack on the substance of his reports. The Plame story was simply an effort create insinuations about Wilson's qualifications and generally besmirch his reputation and possibly (depending on what you're willing to believe about Libby and Rove) to exact revenge by ruining Plame's career. Hardly a lofty testament to the value of an independent press.

The Post's CIA detainee story, by contrast, contained exactly the sort of critical information that the public deserves to see, and should be given every available legal protection. This is not to say that there should be no oversight of how classified information is exposed or that press organizations should not exercise caution in disclosing it (as the Post did in refusing to name the countries where the detainment centers are located). This was information that the public did not know and had no reason to suspect about government policies that go directly to the heart of what our values are and how we conduct ourselves.

This will admittedly cause difficulties for the CIA in its effort to continue to pursue these policies, difficulties that the CIA can claim impair its mission and endanger national security, but these difficulties arise from the outrageousness of the conduct itself. I fail to see how the exposure of this information will in any way impact on the actions of Al Qaeda relative to the CIA, nor the actions of the CIA relative to Al Qaeda, except to the extent that this is now propaganda for Al Qaeda and a source of domestic and international political problems for the CIA. This is not the case of an agent or undercover program that, once exposed, can no longer no long serve the assigned mission. Secrecy is not critical to the function of a prison camp. The exposure of these policies hurt the U.S. and the CIA not because it imposes functional problems, but because the policies are stupid.

The only reason they were likely secret in the first place was probably to avoid political fallout, in both the U.S. and the host countries. That is not, to my mind, a valid reason for government secrecy. If a democratic country allows its government to conceal its actions because the public would not like those actions, something has gone seriously wrong. If some investigation does arise from this leak, I certainly hope that a critical element of that investigation is to discover why exactly the public did not know about these facilities prior to the leak and to inquire into the validity of the profferred justifications for concealing the facilities.

Michael Brown: A Man of Rare Quality and Genious

From the Department of Homeland Security email archives and the AP:

From Marty Bahamonde (DHS) to Michael Brown, Aug. 31, 2005:

Sir, I know that you know the situation is past critical. Here some things you might not know.
Hotels are kicking people out, thousands gathering in the streets with no food or water.
Hundreds still being rescued from homes.

The dying patients at the DMAT tend being medivac. Estimates are many will die within hours. Evacuation in process. Plans developing for dome evactuation but hotel situation adding to problem. We are out of food and running out of water at the dome, plans in works to address the critical need.

FEMA staff is OK and holding own. DMAT staff working in deplorable conditions. The sooner we can get the medical patients out, the sooner wecan get them out.

Phone connectivity impossible.

More later.
-------------------

Michael Brown's reply to Marty Bahamonde, Aug. 31:

Thanks for the update. Anything specific I need to do or tweak?

-------------------

Later:

Brown press secretary Sharon Worthy to Cindy Taylor (DHS) and others:

Also, it is very important that time is allowed for Mr. Brown to eat dinner. Gievn that Baton Rouge is back to normal, restaurants are getting busy. He needs much more that 20 or 30 minutes. We now have traffic to encounter to get to and from a location of his choise, followed by wait service from the restaurant staff, eating, etc.

-----------------

Bahamonde to Taylor:

OH MY GOD!!!!!!!! No won‘t go any further, too easy of a target. Just tell her that I just ate an MRE and crapped in the hallway of the Superdome along with 30,000 other close friends so I understand her concern about busy restaurants. Maybe tonight I will have time to move my pebbles on the parking garage floor so they don‘t stab me in the back while I try to sleep.
-----------------

This stuff is pure gold! Laugh all you want, but please do keep in mind that Michael Brown is, in his own words, "a fashion god."

What Passes for Fiscal Discipline

Here's CSM's story on the budget reduction plan now circulating on the hill. Not that I have strong feelings on this or anything, but it's an insult to the American people. First off, as a effort at fiscal discipline, it's a non-starter. You're looking a reduction of the deficit over the next five years by 2% (Senate) or 2.5% (House). Completely inconsequential. And the House bill appears to be laser-targeted at items sure to infuriate liberals: student loans, child support enforcement, food stamps, etc. Then, just for fun, they tacked on the ANWR thing. And these people are still talking tax cuts... The only thing that infuriates me more than the federal government ignoring half trillion dollar deficits is that when they actually apply time and effort to dealing with it the results are a sick joke. This bill is a slap in the face to anyone who cares about actual fiscal discipline. Fortunately for proponents of the bill, that appears to be a vanishingly small number of people, and none that they are at risk of encountering in Congress.

Analyzing Alito

In the Washington Post, Cass Sunstein provides a measured look at Alito's appellate record. I have no doubt that we have a major political battle at hand, but Democrats will face a tough challenge in that Alito's record does not look to be any more conservative than Scalia's, and, by Sunstein's analysis, it might be less so. How would a filibuster be justified here when Scalia was confirmed 98-0? There will likely have to be arguments external to the judge's personal record, in reference to the overall balance of the Court or some such thing. This may take the form of arguments that Alito is not just taking any seat on the Court, but he is replacing O'Connor, a relative moderate, in whose mold the replacement should be cast. I've seen this argument implied in several places already, and I'm not sure it makes much sense. It is difficult to find historical or policy justifications for the idea that the Court needs to adhere to some particular partisan structure or another. In general I think this will be a tough fight for the opposition. Their best approach will probably be to tie this nomination as closely as possible to the White House and try to make the confirmation into a referendum on George Bush to capitalize on his falling popularity.

Update: On Alito-Scalia comparisons, Robert Gordon of the Center for American Progress (a liber think-tank) makes the case on Slate that Alito is more extreme than Scalia.

Update (11/02): For some balance, here a CSM story suggests that Alito is not a hardliner on abortion.

Yet Another Update (11/03): I had to add a link to this rebuttal to the CSM column UVA's own Richard Schragger.

A Rival to NATO?

There's an article on CSM about the Shanghai Cooperation Organization, a military alliance potentially involving China, Russia, India, Pakistan, Iran, and the various -stans. It's an interesting idea, but do these countries have anything in common other than an interest in increasing their influence? It would be an extremely potent group, one that probably could rival NATO in power in coming decades, but I have a hard time seeing any coherent policies or positions that these nations could all agree on.

Not Our Biggest Fans

(Or 'How Gerhard Schröder Made a Career Out of Dissing Americans') CSM has an interesting column on how Katrina played in recent German elections. I'm curious how much of this will persist after 2008...

Friendly Fire

The more this Harriet Miers thing goes on, the funnier I think it is. Like this article on Laura Bush rebuffing Miers critics. What could be funnier than this scenario: The White House nominates a lame candidate. Conservatives criticize the candidate. The White House, as it has done a hundred times before, responds to criticism by shooting the messenger. Conservative critics say, "Hey! Wait a second! It's us! Hold your fire. We're not sexist pigs!" Pure comedy.

A Spirited Debate on Civil Rights

I happened across this Legal Affairs magazine debate on the Patriot Act between Chicago Professor Geoffrey Stone (against) and Judge Richard Posner (for). Both make some good points and fire off some nice jabs. My favorite exchange:

Posner: "My mother was forced out of her job as a public school teacher, and later hauled before the House Un-American Activities Committee, because of her communist sympathies. I consider her political views to have been idiotic, but I am quite sure that she was completely harmless."

Stone: "Let's see, how does it go: A liberal is a conservative who's been mugged; a conservative is a liberal who's been arrested; and an advocate of law-and-economics is a Red diaper baby whose mother's been hauled before HUAC."

George and Harriet Sittin' In a Tree...

This stuff just makes me laugh. I think the confirmation hearings are going to be a lot more fun this time around.

Barack to Kos: Tone it Down

Last Friday Senator Barack Obama wrote a blog post addressing extreme partisanship among special interest groups and party activists (including the Kossacks). It was based on the Roberts confirmations, but obviously has wider applicability. It's a very well written and well thought-out post.

Remember Iraq?

The Washington Post has an excellent editorial summarizing Iraq's constitutional conundrum. It does not appear that the constitution will be the panacea that some folks had thought it would be. It simply boils down to the same old problem that concerned me even before we invaded: how do you come up with democratic government in Iraq that will not dissolve into violent factionalism between the Kurds, Shiites, and Sunnis? I wasn't sure it was possible then, and nothing I'm seeing now is convincing me otherwise. It just isn't clear to me that the population in Iraq is homogeneous enough or has a strong enough sense of nationalism to be able to support a democratic federal government.

I Think Mikey Likes It

...back to all-Serenity, all the time, coverage. Not bad for the little movie that could. "The cleverest, crankiest, wittiest, wildest, and most character-driven sci-fi adventure in 25 years; it's the best outer-space trip I've been on since the empire struck back." Nice.

Some Non-Serenity Content

The government went and made Fareed Zakaria upset, so he wrote this fine column.

Not to go overboard with this stuff, but:

Serenity Countdown: 10 Days

I'm counting the hours. You still have over a week to rent, buy, borrow, or steal the Firefly DVD's to fill in the backstory for Serenity.

The Shaving Vanguard

In other news that also leaves me a bit at a loss for words is this story from the razor industry. If ever there was a case of life imitating art... It's uncanny.

Tom Delay: Smokin' the Dope

There's just nothing that can be said for this. I laughed 'til I cried...

My Vote for the Darwin Award

Man Electrocuted While Attempting to Steal Power Line.

I Ain't Sayin' He's a Gold Digger...

So, first Kayne West made waves with his comments on NBC's Hurrican Relief program, concluding, famously, that George Bush doesn't care about black people. And now this. Hilarious. I may not particularly buy it as a political issue, but this stuff is pure gold. God bless 'em.

Pakistanis Tire of Islamism?

A very interesting development from recent elections. I think radical Islamism is too strong in Pakistan to depart quietly, but this is a nice step forward.

A Defense of Intellectualism

I've been absent here for over a month now (just haven't had much inspiration for posting), so I thought I'd copy over something I wrote for a discussion I was having elsewhere. Brief synopsis: the discussion revolved around violence in black culture in America (I'm sure you can guess the basis), and after a couple of people (not me) introduced references to books and studies and such they drew several replies critical of their "book learnin" and their air of intellectual superiority as compared to common sense and life experience. My reply follows:

"For every complex problem there is a solution that is simple, neat, and wrong."
-H.L. Mencken

I find this very interesting, I was having a discussion last night with a friend on nearly this very topic. Bertrand Russell in his classic book, The History of Western Philosophy, frames the last several hundred years of Western philosophy as a struggle between the Enlightenment empiricists and reactionary Romantics. It's a theme I've recently run across (in nearly identical terms) again reading Edward O. Wilson's Consilience, and very distinct threads of the same issues popped up in the documentary about the neocons, The Power of Nightmares that I posted on over the summer.

The basic idea is this:

The millenia before the Enlightenment (basically from the end of the Roman Empire on) was a vast wasteland for thought and discovery. For various reasons (mostly relating to the dominance of religious philosophy) little of value happened in the realm of philosophy or science. Eventually empiricism happened along (thanks in no small part to John Locke) and the Enlightenment was born.

Philosophers and intellectuals realized they had uncovered a tool of amazing power to learn about the world around them, and science as a meaningful discipline was created. These early Enlightenment philosophers were awash in optimism believing that in no time they would map out all of the knowledge to be had and perfect mankind in our interactions with the world and one another. As time went on what they discovered that while empiricism was able to unlock the secrets of the physical world at a phenomenal rate, human interaction was a different story. Human society is too complex, has too many variables and dimensions and does not yield to the scientific method in the straightforward way that physics or chemistry does. Empirical truths, they felt, do exist that govern the relations of man, but they would be painfully slow in yielding to empirical study (which is not to say that they did not develop important advances in government and economics). In the meantime we would simply have to live with the uncertainty of knowing that the truth is out there, but that we don't necessarily yet know what it is.

The Romantics, beginning mostly with Rousseau (who is the villain of Russell's tale) rejected this uncertainty and opted instead for answers that were simple, neat, and wrong, based mostly in existing cultural or religious values or in the naive sort of philosophy the preceded the Enlightenment. Rousseau rejected empiricism as the means to discover truth, and held science to be incompatible with virtue. Rousseau believed that truth should be found, not "from the principles of a high philosophy", but "in the depths of my heart, written by Nature in ineffaceable characters." He thought that conscience and intuition should be the only guide and "we are thus freed from all this terrifying apparatus of philosophy; we can be men without being learned; dispensed from wasting our life in the study of morals, we have at less cost a more assured guide in this immense labyrinth of human opinions."

Fast forward 250 years and we are still locked in this same battle between empiricism and romanticism. The terms have hardly changed a lick. The Lockian empirical perspective has descended through our Founding Fathers and the ever-increasing reach of scientific discovery, while Rousseau's Romanticism has passed down through Kant, Hegel, the Transcendentals, and the Straussian neoconservatives. We see it expressed in battles between empirical relativism and absolute moralism, between the scientific method and truth by revelation (intelligent design), in the clash between modernity and traditional cultural values (a thread that manifests itself both domestically between red and blue politics and internationally between the modern West and extreme Islam), and in the certainty of neocon policy in face of contrary data. The conflict between Locke and Rousseau is the defining conflict of mankind these last 250 years and looks to be nowhere near resolved.

And here we are arguing over whether common sense intuition is superior to book-learnin.

I don't mean to be rude, but I do think that intuition informed by book-learnin is superior to naked intuition. I believe in the philosophy of the Enlightenment and the importance of empiricism. I choose Locke.

And I would note that empiricism does not dismiss the importance of intuition. Intuition is a critical element of the Scientific Method and guides its every step. But it is not an end point. It is the starting point. It provides the questions and the hypotheses that empirical study then attempts to evaluate. Intuition anchored by evidence, is to my mind, clearly superior to intuition alone.

The Misunderstanding of Depression

I sent the following to CSM's editors regarding Patrick Chisholm's editorial "The Bright Side of the Blues" (8/5):

I must admit I was shocked to read Patrick Chisholm's editorial "The Bright Side of the Blues" (8/5). In a publication as reputable as CSM, it is unusual to find such misinformation and misrepresentation.

Let's begin with the concept of depression. In psychiatry, depression by its very definition is maladaptive and prevents the afflicted person from thinking about anything else other than how terrible their life is. It is not the sadness that you or I feel as a natural response to life events. Our sadness is adaptive indeed and allows us to alter our behavior and think about life, but it is not the depression that psychiatrists talk about.

Now to antidepressants. A good psychiatrist does not indiscriminately treat every depressed patient with a pill and send them on their way. Evey patient is different - some benefit with just behavioral therapy and an antidepressant may be added if therapy alone does not work. Multiple studies have now shown that a combination of therapy and antidepressant treatment is superior to either therapy alone in treating this terrible disease. There is also no proof that antidepressants "result in suicide". If you read the studies carefully, antidepressants may increase reporting of suicidal thoughts, but were not associated with increased suicides in teens. Far from "handicapping the client's ability to navigate and control their social environment", antidepressants may actually enable a person to start working through their negative thoughts in a more constructive way, thus ending their depression. Chisholm also quotes that "the fact that we can feel depressed in the first place means depression must have a purpose". Does this also mean that cancer has a purpose because we can all get cancer? My hunch is that most people would disagree.

It is obvious to me that Chisholm has not suffered from depression, and I wonder whether he has even known someone with clinical depression. If he has, then perhaps he would understand just how debilitating this disease is. This kind of misinformation and faulty thinking is a disservice to the American public and certainly to all of those suffering from depression. I might expect this from Tom Cruz, but certainly not from the Monitor.

The Moral Hazards of War

Uwe Reinhardt has a good WaPo column that takes a bit more mature angle on the same issue Michael Moore confronted when he tried to recruit politicians to send their kids to Iraq.

There's Sex In My Violence!

This makes me laugh.

Philosophies of the Global War On Terror

Thanks to a random slashdot post I came across a very interesting documentary today. It's called The Power of Nightmares, created by filmmaker Adam Curtis. There are three one-hour episodes. It is available for free download from the Internet Archive. I found their download to be very slow, and looked elsewhere. You should have no problem finding it on your bittorrent tracker of choice. The BBC also has an intersting Q and A with Curtis. I've only got the first episode so far (bloody download limits). It's a great look at the origins of the neoconservative and jihadi philosophies and their rise to power, portraying both as a rejection modernity and liberalism. There's wonderful footage of some of the primary figures (young Rumsfeld cracked me up, the man never changes). I found the Reagan-era stuff in particular to be utterly fascinating. I would love to see an academic discussion of the film. There are a gazillion discussions of it on the internet, but nearly all from highly politicized viewpoints, either accepting the film in its entirety or trashing it in every regard. One of the more substantive criticisms I could find was a charge in this National Review article that the conclusions of a book that the film attacks, The Terror Network: The Secret War of International Terror were later verified by the Stasi files. There is also some discussion of criticisms in the film's wikipedia entry. I found it to be fairly even-handed, at least in discussion of the philosophies (although Curtis' version of historical events seems more subject to question), and honestly thought that Leo Strauss and Sayyid Qutb (who Curtis holds to be the seminal visionaries on each side) had interesting and important points to make. It's starting to seem that many of the important political and sociological events of the day can fit within the frame of mankind struggling with the onrush of modernity.

Update (7/24): Finished watching the series. It makes some fairly startling claims in the latter part, and presents really interesting arguments to back them. Quite a thought-provoking program, you should give it a look.

Hurray For Echo Chambers

A follow up to my post yesterday, quoted from Howard Kurtz's column today:

--The lightning-quick attacks came after 50 top liberal bloggers joined in a 45-minute conference call Tuesday night. "On the left, we've always talked about the need to have an echo chamber," says John Aravosis, a Washington lawyer and gay activist who writes at Americablog.com . "We believe the right has a whole media network, from talk radio to Fox News to Matt Drudge. The left doesn't have that because the left doesn't play well with others."--

Yeah, this seems to be pretty much what Sunstein was talking about... Viva la talking points!

Spoiling For A Fight

So John Roberts is the nominee, and now the circus begins. I don't know as much about the man as I'd like (although I saw him speak here a few months ago and was very impressed), but I'm disappointed by the knee-jerk reactions of liberal groups. The Kossacks are predictably upset, MoveOn has already started a mail-in campaign to reject him. I got an email for Human Rights Campaign to tell me that Roberts' nomination puts our rights in "grave danger." Much of the criticism apparently focuses on things Roberts did as an attorney in private practice and in the Solicitor General's office. I'm pretty sure Deputy Solicitor Generals don't make policy, and it seems to me that I once knew an attorney who defended a large corporation in a mass toxic tort case, and I'm pretty sure he wasn't a corporate shill.

The question that keeps coming to me is: who would you rather have? Who do these people expect will be nominated if Roberts is rejected? Roberts is obviously a very smart and talented man, and he doesn't strike me as an ideologue. Yes, he is a conservative, but this is a Republican administration. Was anyone expecting a liberal? Is this just a fight for the sake of fighting?

I have been very excited by the rise of a populist liberal movement on the internet, and to some extent I still am. But lately I'm beginning to wonder if it is possible for a populist movement to be sustained without devolving into partisan extremism. I can hardly read Kos anymore without wanting to throw things at my computer. It seems everything is a conspiracy, and everyone is out to get them. I don't begrudge far-left die-hards their right to have an online community, but is there any liberal community left that isn't dedicated to this level of pointless partisan bickering? Maybe there's one out there that I just haven't discovered yet. But it seems that the liberal populist movement is increasingly mirroring the conservative populist movement, and that both seem to be subject to a strong drift towards partisan extremism. It may be that this is an inevitable result of Sunstinian group-reinforcement.

I guess I should note that I haven't gone establishment. I'm still as anti-establishment as the next guy. But my problem with the establishment has never been that it isn't liberal enough; it's that it's too fake, too staged, too deeply engaged in politicking without enough consideration for the policy that is supposed to result from politics. It seems to me that this is exactly the problem that comes from the knee-jerk response against John Roberts. I don't see any consideration of what comes from winning (i.e. how would the next nominee be better than Roberts), there's just a strong desire to beat the other side. It's not a results-based response, it's purely political. It signals an approach that will never be interested compromise or in building common ground across political boundaries. That's disappointing. It's important to fight when there's need for it (say, plans for an ill-advised war), but that doesn't mean you have to fight all the time about everything.

A Sunstein Teaser

While Larry Lessig is out on vacation, he's left Cass Sunstein in charge of his blog (until the beginning of next week). Sunstein has been discussing his follow-up to Republic.com, looking at aggregation of information on the Internet in various forms (wikis, open source, etc.) and contrasting these forms of aggregation with Hayek's market pricing theories. He has also discussed the Chicago Judges Project and The Wisdom of Crowds. I look forward to seeing the rest of his posts.

Google Earth - The Coolest Thing Ever

Check this thing out. Note the checkbox that allows you to have roads superimposed on the map, which is pretty key to finding anything. The picture quality seems to vary quite a bit. Charlottesville is a blotchy, blobby mess, but the detail on our old Fox River Grove place is amazing. Even the cars in the driveway look sharp. Bantry Lane isn't quite as good, but it's not bad. D.C. of course looks good, but it seems to me there's a missing apartment building in there somewhere. It also looks like someone has taken a bottle of white-out to the top of the White House. I love doing slow zooms up and down. Once you know where to look, you can see the Pentagon from about 20 miles up. Likewise what looks to be a section of the Great Wall (40d37' N, 116d45' E) is visible up to about 100 miles.

The World is a Strange Place

CSM had a story on a website that translates foreign news stories to English. So, I went and checked it out. Reading through their stories I was quite taken by one "truth is stranger than fiction" story about an ancestor of our President, named (OF COURSE) George Bush.



Reverend Bush published a book in 1837 entitled The Life of Mohamed. It seems that some of our friends in the Muslim world have discovered this book and are none too pleased that the book, among other things, consistently refers to Mohamed as an imposter. Bizarre and meaningless, yet totally fascinating.

Restorative Justice in New Zealand

Restorative justice is something my dad has been interested in for a while now, and it seems like a good idea to me. CSM has a story about restorative justice in New Zealand, as well as some of the things New Zealand has done to integrate the native Maori culture into daily life. New Zealand is a pretty cool place in my book...

Poor Scott McClellan

This is a pretty funny transcript. My favorite part:

Q: Scott, this is ridiculous. The notion that you're going to stand before us, after having commented with that level of detail, and tell people watching this that somehow you've decided not to talk. You've got a public record out there. Do you stand by your remarks from that podium or not?

MCCLELLAN: I'm well aware, like you, of what was previously said. And I will be glad to talk about it at the appropriate time. The appropriate time is when the investigation...

Q: (inaudible) when it's appropriate and when it's inappropriate?

MCCLELLAN: If you'll let me finish.

Q: No, you're not finishing. You're not saying anything. You stood at that podium and said that Karl Rove was not involved. And now we find out that he spoke about Joseph Wilson's wife. So don't you owe the American public a fuller explanation. Was he involved or was he not? Because contrary to what you told the American people, he did indeed talk about his wife, didn't he?

MCCLELLAN: There will be a time to talk about this, but now is not the time to talk about it.

Q: Do you think people will accept that, what you're saying today?

MCCLELLAN: Again, I've responded to the question.

QUESTION: You're in a bad spot here, Scott... because after the investigation began -- after the criminal investigation was under way -- you said, October 10th, 2003, "I spoke with those individuals, Rove, Abrams and Libby. As I pointed out, those individuals assured me they were not involved in this," from that podium. That's after the criminal investigation began.

Now that Rove has essentially been caught red-handed peddling this information, all of a sudden you have respect for the sanctity of the criminal investigation?

MCCLELLAN: No, that's not a correct characterization. And I think you are well aware of that.....

And we want to be helpful so that they can get to the bottom of this. Because no one wants to get to the bottom of it more than the president of the United States.

It's gotta suck being a Bush press secretary...

Re: Insufficiently checked and balanced?

First, I apologize it has taken me awhile to offer a response to Ryan's post. Second, as I stated in my brief comment, I do not purport to be a constitutional or legal scholar but hopefully I can offer something useful.

As best I can tell, the short answer to your question, Ryan, is that the founders did not even consider election of judges at the time they drafted the Constitution. In the Federalist Papers, No. 76, Alexander Hamilton wrote that

It will be agreed on all hands that the power of appointment, in ordinary cases can be properly modified only in one of three ways. If ought either to be vested in a single man, or in a select assembly of a moderate number, or in a single man with the concurrence of such an assembly.

Of course, as you point out, all hands would no longer agree those are the only options for selecting judges that are on the table. To be sure, other methods of selection might more properly be referred to as something other than "appointment." Two other models have been implemented in the United States: election and merit selection. (For more background on these other methods, see these materials posted in connection with Frontline's special titled, "Justice For Sale.") To avoid this post becoming too unmanageable, I will focus upon the election of judges -- in particular, the election of appellate judges.

The election of trial or magistrate judges has a very long history -- too long to trace its source by this amateur historian. According to this article (again from materials provided by Frontline), Mississippi was the first state to require the election of all judges (in 1832). Many states followed course, particularly in the period between 1846 and 1860, during which period many states revamped their state constitutions. According to this press release by the Brennan Center for Justice at the NYU School of Law, as of 2002 38 states, representing 87% of all state judges, use elections to select judges. In 18 of these 38 states, judges are initially selected by election; in the remainder judges are appointed and then must be reelected to stay in office.

There is too sizable a debate to summarize here all the reasons in support of and against each methods of selecting judges. The argument I would make against the election of judges conforms with the reasons Hamilton offered in No. 78 of the Federalist Papers, but a brief lead-in is first necessary. I assume the election of judges entails not only the initial selection of judges, but also their periodic reelection -- as far as I can ascertain, no state has ever instituted a system by which judges are initially selected and remain in office "during good behavior," the standard the Constitution provides for Article III judges.

In my view, the harm of electing judges comes about by subjecting the interpretation and application of the law to the same public pressure as is responsible for crafting of the law. Assume a narrow majority succeeds in promulgating some vague standard of behavior to which all citizens must comply -- insert any controversial issue of your choice, particularly those involving criminal behavior or health and safety standards (euthanasia, abortion, and the prohibition of recreational drugs come to mind). Assume also that a harsher standard could not have garnered a majority. It is reasonable to expect, and experience confirms, that judges will often favor the harshest reading of the law that can be reasonably extracted from the text (and sometimes even unreasonable interpretations too) out of concern for getting reelected. The concern, to frame it differently, is that judicial interpretation plays less in most electors' minds than does outcome -- a tendency I suspect often factors into the decisions of elected judges. That concern is more significant where the law to be interpreted is a constitution, which serves in part to protect the rights of the minority.

My argument against election of judges, therefore, depends more upon the value of the life tenure of judges than it does upon how they are initially selected. I entirely agree with the sentiments expressed by Hamilton when he stated that

The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is no a less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.

Here (in RealMedia format) is a video excerpt of an interview with Justices Kennedy and Breyer displaying some hostility to the concept of election of judges.

I would be happy to elaborate upon any points I made here or, for that matter, upon points I missed. More important, I would be very happy to learn what you think.

Fun With Newscasts

This is pure awesomeness.

Insufficiently checked and balanced?

I have a question for you legal/constitutional experts out there: Why are supreme court justices appointed and not elected? What did the framers have in mind when they made these appointed positions? It seems logical to me that if the judicial branch is to be able to check and balance the other branches of government, then they should be elected independently by the people of the United States. I realize this wouldn't be a practical measure for all federal judge positions, but one might at least consider it for the supreme court. As it stands now, it seems that the executive and legislative branches have too much say in the makeup of the court. One could argue, however, that requiring the other two branches of government to agree on a judge creates a balanced enough approach. On the other hand, what would the ramifications be if justices were subject to general election? I would love to hear your comments.

A Reasonable Outcome on Grokster

The Supreme Court today announced their opinion reversing a summary judgment for Grokster. I'm not displeased with the outcome. They made no reference to Aimster's willful blindness doctrine (which I thought should control the case), but came to a similar conclusion, finding the demonstrated intent of the defendants to be the key to their determination. As I stated back in March, consideration of intent is a necessary addition to Sony without which Sony is easily gamed and unmanageable. Here it was clear by the defendants' actions in aggressively recruiting Napster users and promoting infringing material available on their networks (actions that were curiously absent from the discussion in the 9th Circuit decision) that it was their objective to profit from the infringment of copyrights. Sony could not stand if it was read to protect such actions.

One of the most interesting questions of the case, whether Grokster and Morpheus had substantial noninfringing uses, was not decided by the Court and was argued at length in the concurrences. Justice Ginsburg (joined by Rehnquist and Kennedy) wrote a concurrence arguing that they did not have a substantial noninfringing use, while Justice Breyer (joined by O'Connor and Stevens) argued that they did have substantial noninfringing uses. I agree with Breyer's arguments for a low bar on substantial noninfringing uses, particularly in conjunction with consideration of intent as in this case and Aimster. To have a high bar for substantial noninfringing uses that sets some sort of a cutoff based on the percentages of use creates a real problem for developers of new technologies who cannot accurately predict how exactly their technologies will be used. There would be a definite chilling effect on technological innovation. Policing intent should provide a sufficient avenue for nailing bad actors.

Thanks for Nothin'

I wanted to highlight this story by Columbia Journalism Review on the much-publicized $674m in "additional aid" to Africa (credit to Howard Kurtz for pointing it out). I've often noticed a huge gap between Americans' perceptions of our foreign aid programs and the reality. Dirty tricks like this are at least partly to blame...

Dear Lord Above

Some days I just love the internet. Unbelievable.


Osama bin Squirrel

Open Source and the Law

Slashdot has a large discussion of a very small article on a number of Florida judges who are disregarding the results of breathalizer tests because the manufacturer refuses to disclose the source code. It's an interesting idea. I think there may be other areas (black box voting systems) where this is more appropriate, but I like the general principle. In this particular situation, I wonder if there aren't other ways that the accuracy and reliability of the devices could be established, and whether that would satisfy the basic inquiry. A little more detail in the article would have been nice...

The Mobility Myth

As a follow up to the CSM class mobility story posted a couple weeks back, Michael Kinsley has a good Washington Post column today discussing social mobility and recent coverage of the topic in the Wall St. Journal, New York Times, and LA Times.

A Cool Response to the PATRIOT-ACT

Slashdot pointed out this story about a feature coming soon to a library near you: anonymous library cards. Instead of giving the library your personal information, you'd just a make a cash deposit that would serve as collateral for any books you check out. Slick, clever, sticks it to the Man. I like it.

The Larry Lessig Boys Choir Story

Wow. Like Sleepers, but for real...

The Bush PR Strategy

From slate: "See, in my line of work you got to keep repeating things over and over and over again for the truth to sink in, to kind of catapult the propaganda."—George W. Bush, Greece, N.Y., May 24, 2005

Real Damage from Prisoner Abuses

There were a trio of interesting articles on CSM today. First, this story on the marked decline of class mobility in America. A troubling trend that underscores, again, the danger in relying on capitalism to deliver social justice. There tends to be an implicit assumption that in a free market everyone gets what they deserve. If there are structural barriers to class mobility, that assumption becomes less valid.

The next story, a happy one for a change, discusses various much-needed efforts at reforming the jury system. As the article notes, there is a great deal of variation among the states (and some are doing nothing at all). Hopefully some of these programs will prove successful and spread to other states.

The story I most wanted to comment on, however, discusses the frightening perceptions among Arabs of our treatment of prisoners in the war on terror. The story focuses on recently leaked pictures of Saddam in his underwear. It also comments on the Newsweek Koran flushing story and the recent NYT story on abusive treatment leading to the deaths of two prisoners, as well as the light sentences and lack of high level accountability for Abu Ghraib. While the Newsweek retraction provided a high profile opportunity for the scoring of political points, I hope that we haven't lost sight of the very real problem that our cavalier treatment of prisoners is creating. These are not isolated incidents. University of Miami law professor Michael Froomkin has been keeping a watch for torture stories on his blog. A sampling:

- U.S. takes hostages to coerce relatives into surrendering
- Guantanamo prisoner claims to have suffered violent sexual assaults and near drowning during his captivity.
- Guantanamo prisoner claims that Gitmo tapes would be as explosive as the Abu Ghraib photos
- Guantanamo prisoner claims innocence, details physical mistreatment
- Guantanamo prisoner claims prisoners were handcuffed naked and attacked by dogs
- 15-year-old Guantanamo detainee claims abuse
- Pentagon inquiry confirms use of sexual tactics in interrogations
- Military lawyers at Gitmo try and fail to end physical abuse of prisoners.
- Afghan prisoner, left exposed to the elements by the CIA freezes to death.
- Gitmo prisoner claims torture, assault, near-suffocation
- Mother Jones story details many claims of torture at hands of U.S.
- Navy disgusted by abusive treatment at Gitmo.
- Terror prisoners claim to have been beaten and abused at New York's Metropolitan Detention Center.
- Iraqi prisoner hung from the wrists until dead (Abu Ghraib related)

These are stories that may not get much play in the U.S., and to be fair, many of them are unconfirmed allegations. However, they almost certainly draw attention from Al-Jazeera and other Arab outlets. As the CSM story notes, U.S. treatment of prisoners is having a strong impact on Arab public opinion. It is difficult to believe that high level decisions (such as the DoD memos exposed after Abu Ghraib) within the administration are not fostering such treatment. Unless I've been grossly misinformed, these sorts of actions do not typify American treatment of prisoners in past conflicts. Moreover, it is difficult to see what we gain from all of this. There have been few claims that we've gained critical intel from this abuse, and many claims to the contrary. I simply don't understand why we aren't doing anything about this. Abu Ghraib never got any real reaction within the administration or the DoD, and all of these stories roll by without attracting any significant attention. Aside from the fact that this treatment is shameful in view of Americans' generally shared values of human rights and human dignity, it seems ruinous from a strategic PR standpoint. But no one in the administration, and few in the press, are paying attention. Whatever stupid things Newsweek may have done, that's the real story here.

Re: The Military Spending Debacle

Thanks to Joe for pointing out the continuing profligacy of US government spending, in particular on defense. I would also add that we could get rid of the failed/untested missle defense system. The Bush administration has already spent some $30 billion on this with more increases in spending requested. As Joe points out, however, who would be opposed to spending more money on the security of our nation? Worded as such, the answer is obvious. The problem of course is that government spending seems completely dissociated from the individual American. If Congress spends an additional $50 billion on defense, do I notice its impact on me? Perhaps a program elsewhere will be cut (in the ideal world) or perhaps the continuing debt will destabilize the dollar and eventually the economy. Yet I will have difficulty drawing the connection between the two. We need some mechanism to tie the effects of government spending to the individual American. If you raise my gas price by 10 cents per gallon, I would probably take notice. It is wishful thinking on my part that such an obvious link would ever be made by Congress or that they might impose spending restrictions (e.g. tying budget increases to inflation).

In the bigger picture, I worry about the ever increasing cost and size of our government. It reminds me of Windows and the ever-increasing amounts of code added without simplifying the existing code first. Inefficiency and waste only grow in this scenario. Are we reaching a point where government operations become compromised by their own complexity?

The Military Spending Debacle

CSM has an article with a broad discussion on current military spending and various proposed changes. It's really a fairly absurd situation. The article notes that we will spend $667b in the next year. It mentions that the Task Force on a Unified Security Budget proposes $53b in cuts, and $40.5b in additional spending. It also discusses the proposed base closings. In inflation adjusted dollars, we are spending more on defense than we have since WWII. Adding to the absurdity of the situation, Donald Rumsfeld does want to make cuts (as per the base closings) to manpower at a time when Iraq and Afghanistan have stretched manpower perilously thin, thus leaving Congress in the position of opposing the one budget-slimming measure of an otherwise aggressively spending administration (not to mention the always pork-barrel sensitive matter of base closures).

I think any analysis of the defense budget needs to start from the recognition that the U.S. military is light-years ahead of any other in the world. Our nuclear arsenal itself is enough to ensure that U.S. will never be attacked by any nation-state. And there is not a conventional military on the planet that the U.S. could not steam-roll over. In light of these things, Rumsfeld's plans for a lighter, slimmer military make a lot of sense. However, it doesn't seem feasible to make these cuts while we are digging deep into the reserves and National Guard to keep enough troops in Iraq.

But it seems there must be places to cut, given that we had 500,000 troops in south-east Asia with a lower defense budget than we have now. Perhaps there is something to the quote in the article that we're doing a very poor job of getting reasonable prices from defense contractors (on whom our military has grown increasingly reliant). Certainly there seems to be a disturbingly incestuous relationship between the public and private military sectors (starting in the VP's office). Some of the big ticket programs (nuclear bunker-busters) seem wasteful and unnecessary as well.

Unfortunately the current politics of national defense are such that neither party could feasibly propose any significant cuts. Moreover, it is difficult to see how this could change any time soon. There was no significant focus on fiscal problems in 2004 by either side, and it seems that budget deficits would need to take an immeasurably higher profile in order to compete with the terrorist-mania that governs politics. There is a very real argument that our fiscal situation poses a greater threat to American dominance and security at the present time than terrorists, but I don't see that as a politically salable idea. It's a bloody mess, no doubt about that.

Disaster!! ShunTV Nailed

Bastards. "The MPAA says it wants to encourage legitimate download sites instead." I'm sure you did all of the nonexistent legitimate download sites a ton of good. Thanks.

Buh-Bye to the Broadcast Flag (for now)

Just wanted to update a story mentioned here a couple months back. On Friday the D.C. Circuit shot down the FCC's broadcast flag requirement. (decision here) The court had ruled to give the challengers (library associations and the EFF) additional time to demonstrate that at least one member of their group had standing to sue in their own right. The library associations satisfied the court on this point, and the court denied the FCC's request for Chevron deference, stating that the agency had never been delegated authority to regulate hardware devices except to the extent they are incidental to transmitting the TV signal. Noting that the TV's work just fine on unencrypted signals with the demodulator turned off, clearly the demodulator is not involved in the actual transmission. The flag order imposes regulations on what the devices do after the transmission has been received, which is outside the FCC's delegated authority. As per the WaPo story, the MPAA is pissed, and I'm sure this is not the last we'll hear of the broadcast flag.. But for now, hurray for the good guys!

A Brief Moment for Ethics

I'd like to note how deeply I'm enjoying the Delay scandal. Not just because he's a scumbag and deserves it, but because it makes me happy to see the Congress concerned with ethics, even if they're only doing it to score political points. Already various Congresspeople are rushing to get their records in order. There are a lot of good lobbyists in Washington (take, for example, the Center for Democracy and Technology), but by and large the Congress-lobbyist network is a cesspool of corruption. The Republicans have threatened to retaliate by exposing ethical lapses of Democrats (Nancy Pelosi's name has come up a few times). I say more power to them. Although the partisan infighting of it may be distasteful, I would find bitter partisanship palatable in a contest of ethical purity. It might not make the politicians actually become ethical, but at least forcing them to follow the formalities of ethics guidelines would be a step in the right direction.

Time Warp

Following politics recently, I'm starting to feel that we've been time warped back to August, 2001. As you may recall, at the time, after passing a flurry of bills that he had campaigned on, President Bush had largely stalled out, and Republicans were beginning to wonder if the President's critics were right. Bush spent the next three years riding support for his anti-terror agenda. But at this point, the public has gotten the sense that the war on terror will be a long, hard (and often dull) slog. The insurgents in Iraq are back in full force after a post-election lull. Global terror attacks are up significantly in the past year. The new Iraqi government has been slow moving and is mired in conflict.

With foreign policy no longer providing a safe refuge, Bush has had to return to domestic policy. He's now simultaneously trying to prop up Tom Delay against ethics charges, support his nomination of John Bolton, push his social security program, and back Senate Republicans in eliminating the filibuster, all issues on which he has little public support and on which Democrats feel they can capitalize. Add to that the failed and unpopular gambit to intervene in the Schiavo affair, and the Bush presidency appears to be a key setback or two from descending into irrelevance. His party is wavering and beginning to drift. This looks much more like Bush the bumbling amateur politician of mid-2001 than Bush the avenging war hero of more recent times.

Undoubtedly the Bush team still has a few tricks up their sleeve. In political cycles it's a long time until 2008 and Bush will have ample opportunity to try to reinvent himself. I can't even speculate which direction he might turn, but it does seem that much of his difficulties are related to his stubborn, hard-line approach to policy and his close relationship with the Religious Right, and I have a hard time picturing him compromising on either point. Time will tell. Perhaps the best hope of the administration at this point is that the Democrats will fumble the ball, as they did in the election last year. I can't say I have a great deal of confidence in them, but the Democrats can't screw up all the time. They'll get it right eventually. Everything is set up for them right now. All they've got to do is bring it home. I've got my fingers crossed..

Is It Paternalism When You're Right?

This interesting (but factually thin) article on CSM on Americans' bad investment choices puts me in mind of our frequent paternalism discussions. The author aptly comments at the end that the problem isn't really that people couldn't be good investors, but they don't bother to do it. I'd add that it probably isn't a matter of sheer laziness, but that there are a hundred other common areas where people fail similarly, and they have only so much time and attention to go around. And, of course, there's the factor that economists have been known to be spectacularly wrong from time to time as well...

Bad Blood

I'm overdue to post something on the ongoing tiff between China and Japan which is being followed very closely by a certain member of my household. Japan has never repudiated the atrocities they committed in WWII the way Germany has and this has been a continuing source of tension between Japan and Korea (North and South) and China. While post-war Japan has emerged as a major donor nation, with much of their contributions targeted to nations harmed by them in the war, they have been careful to characterize those payments as donations rather than reparations, and Japan has consistently glossed over their wartime atrocities in their textbooks and historical accounts. China and Japan have never been particularly close, and this insult is one that China is not willing to drop. The recent discussions of UN reform, with the strong possibility of Japan gaining a permanent Security Council post, has brought things to a head. Japan does need to own up to their past, but I'm not sure the U.S. will care to push that point. Tension between the two nations hardly hurts us, allowing the U.S. to act as mediator, deepening Japan's dependence on the U.S. for military and diplomatic support, and strengthening U.S. influence in the region. It will be interesting to see if they can move past this, as China and Japan could both profit greatly in many regards from closer ties. The pull of profit seems to be slowly healing old wounds between China and Taiwan, and it may do the same between China and Japan.

Re: A Critique of Social Science (Hank's Response)

I just wanted to draw to the Board's attention a comment on one of Henry's posts, by someone posting as "vox humama" (was that meant to be "humana"?). It reads:

I am out here in the hinterland with the rest of the "rational" population, so reading this was the equivalent of mental weightlifting. I am happy to state that I not only got it done but actually feel stronger for it. As a member of the over 50 age group, my eyes were not well served by the experience. (BIGGER PRINT WOULD BE APPRECIATED!)
It would be hard for me to make any comments of a sufficient intellectual rigor to feel worthy of this discussion. But my question would be, Is the academic world, particularly or especially the "disciplines" of the social or soft sciences, engaged in this kind of discussion? Or is it the elephant under the proverbial rug?

I will give Joe or Henry the first shot at a substantive answer, but I agree with the commenter that we should consider making the default setting a little easier to read (note, however, that one can always change the text size in the browser). I am happy we have a reader beside ourselves!

Re: Federal Courts

I don't know whether a survey of the empirical evidence would demonstrate the number of appellate court cases has increased relative to the number of cases the Supreme Court hears, though my observation matches Joe's. Yet I do not see that trend--if there is one--as posing a problem to the stability of the system. The courts of appeals are certainly aware of decisions of other circuits (the parties make sure of that) and the courts are, as a general matter, hesitant to create a circuit split unless the reasoning of another circuit is really flawed. To the extent that circuits disagree, the Supreme Court can step in to resolve the controversy after the courts have had a chance to work it out themselves. I think the system is sufficiently dynamic to respond to the increased reliance upon courts of appeals. In my view the existing structure could only be characterized as broken if people believed the courts of appeals were unable to handle the added burden, but in my view they are doing just fine.

My two cents.

Federal Courts

CSM has a decent article up summarizing the state of the federal appeals courts as it pertains to the nomination battles. The commentary is fairly worthless, but numbers are interesting. In particular I wonder how sound the system is where the Supreme Court, which supposedly provides appellate review of all the circuit decisions, only handles about 0.1% of the number of cases handled by the circuit courts (that doesn't even take into account state cases that SCOTUS may also review). My understanding is that the caseload of the Supreme Court has been in decline for some time now, even as the size and caseloads of the circuit courts have been increasing. The obvious implication is an increasing balkanization of the federal legal system as the unifying influence of the Supreme Court on the circuits wanes. It's a topic I've never read about or heard discussed in class, so it's hard for me to assess how problematic this is (if it's a problem at all), but I find it curious and may have to poke around and see what's out there (I would be surprised if there isn't a fair amount of literature on this)...

India Begins To Assert Itself

Here's a bit of an interesting development on the international front. After the U.S. decided to sell F-16's to Pakistan, India was understandably upset. To make amends, the U.S. somewhat cynically, offered to sell F-16's and F-18's to India as well. India refused the offer, and instead announced $746 million in military purchases from Russia, Germany, Italy, Israel, and Qatar. Additionally, India has recently stated that it wants no part of a U.N. Security Council reform that would not give them veto power, stating that they wanted equal footing with any other permanent members. With China also becoming far more active in regional affairs (although still suprising meek on global issues), the next decade or two are likely to see some major changes in the geopolitics of south and south-eastern Asia.

For Those With MP3 Players

Following a lead from slashdot I've found a free lecture archive on audible.com that includes the Library of Congress Series on the Digital Future, which features presentations by David Weinberger and Larry Lessig, among others. Not only is it free, but due to audible.com's Red Tag Sale, it's also 50% off! What a deal!

ps. I don't know if audible.com allows deep linking, if it doesn't work, do a search on audible.com for Lawrence Lessig, click on the Library of Congress Speech, then click on the link to C-SPAN on the speech page, then click on See All Matches.

Sheer Brilliance!

An alarm clock that hides from you when you hit snooze. I need one of those!

Round 2: Social Sciences (Part I)

Henry's response does an excellent job of moving our discussion along. I accept wholesale his explanation about complexity and chaos, so I'll focus on the second half regarding economic theories.

I like Henry's interpretation of Mises, and I can see where he found support for it and I think this is the correct interpretation, but I'd like to note for the record that Mises' statement regarding action necessarily being rational and that the term rational action is pleonistic does not jive with Henry's explanation. Mises is actually asserting that volitional action is necessarily rational. I disagree with him even on that point, but it is a far more defensible position than stating (as Mises does) that all action is rational.

Given this interpretation of Austrian subjectivism, I think there are two approaches through which behavioral criticisms could be viewed. The first would be to assert that even volitional actions can be irrational. The second is to suggest that there may be more economically significant actions than Mises would suppose that are not volitional. I think these two approaches are just different sides of the same coin. I'd like to preface my discussion of these criticisms by agreeing with Henry, that behavioral critique does not render Austrian economics (or neo-classical economics for that matter) invalid, but merely offers a refinement. The assumption of rational preferences and action that characterizes neo-classical economics and Austrian economics is for the most part (as stated in my Round I:Part I response) a good assumption. This assumption is the critical insight on which both theories are based (as well as many political theories) and yields a great deal of useful theory, theories which have validated themselves quite well in actual practice. The behavioral critique is merely an effort to define some possible boundaries for the operation of these theories.

~> Read More!
Coming around then to the criticism, I think the first step is to question the realm of possibility. We don't know precisely how cognitive processes work, and probably won't any time soon. However, we know enough to speculate. Based on current knowledge I think it is valid to speculate that all cognitive processes may not be equal. We know that the brain is a mechanistic device, that neurons fire in networks, that different parts of the brain are engaged for different purposes. We also know from information theory (as was brilliantly illustrated in Henry's chaos discussion) that some calculations are more difficult than others, and that there are many different methods to achieve approximate results and many degrees of precision which can be applied to calculations for approximation. We also know from computer science that many of the tasks of calculation in which the brain engages are phenomenally complex and difficult from an information processing standpoint. Even given equivalent processing power, human programmers would face immense difficulty trying to program something that could accomplish all that the brain does. Taken altogether, I conclude from this that the brain employs many wonderful shortcut algorithms (heuristics) to allow it to perform with the remarkable efficiency that it does.

From here we need to note a few things about heuristics. We know that (by definition) in the act of approximation, some precision is lost. From experience in mathematics and computer science we know that each heuristic has certain limiting characteristics; each heuristic has varying strenths and weaknesses. In some cases one algorithm for compressing an image file will outperform a second algorithm, where a different image file may yield the reverse result. We also know that it's usually (but not always) the case that the more efficiently a heuristic performs, the greater the loss of precision.

At this point we might make a few conclusions and assumptions about brain operation. Due to its use of various heuristics, it is likely that the brain performs more efficiently on some types of calculations than others. Perhaps more importantly, if we are willing to contemplate that the brain may use more than one unique heuristic to solve the same problem in different situations, the brain may yield a varying quality of results to the same question based on which heuristic is applied at a given time. The final step needed to reach the behavioral position is to suppose that external factors may consistently (and non-volitionally--I'll come back to this) trigger the use of one heuristic over another.

There are a lot of assumptions involved here, and I don't ask you to accept them all as true. I would only ask that you consider them as reasonable proposals not obviously contravened by present knowledge about cognitive processes (and I would be entirely happy to hear any criticisms you have on this point). What you are looking at is the central premise of the deductive argument of behavioral theory. It is a theory which Henry rightly states cannot be proven at this point.

The experiments carried out by behavioral psychologists, as Henry notes, do not fully eliminate the possibility of interfering factors (including rational volitional reasons for the actions taken). However, these data are not meant to prove anything, but rather to offer some support, by whatever limited means are available to us, to the premise above. I again disagree with Mises' position that because we cannot know how cognitive processes work nor definitely predict what action they will produce we must treat them as ultimately opaque and (while accepting Mises' own assumptions on cognition) question no further. His assumptions about which actions are volitional and that volitional actions are rational are no less a reach than the assumptions of behavioral theory. As an unknown quantity, cognitive processes remain open to deductive argument and to experimentation such as it is.

From my perspective, I find the assumptions made by behavioralists to be emminently reasonable. They very much conform to my own intuitions about cognitive processes and my knowledge of data processing and heuristic algorithms and my observations of human behavior. I find that behavioral experiments, although they vary in quality (and I agree that the VCR one is particularly weak), do offer at least some support for behavioral theory. The results of many of them are difficult to interpret as anything but the application of a weak heuristic in a decision which, in other circumstances, humans are capable of applying a stonger one.

To determine, finally, how behavioral theory plays with Austrian subjectivism requires behavioral heuristics to be placed within the context of actions, volition, and rationality. This may be a discussion about cognitive processes, but I see it as rather more a matter of semantics. The key cognitive insight (and a largely subjective one at that) is that we don't generally think in terms of heuristics. I had been planning on making an argument of this, but arriving here I realize that this argument would probably equal in length the rest of this post and I'm not up for that at the moment. Feel free to challenge this premise and I will flesh it out at a future date. For now, suffice it to say that the immense amount of effort invested by cognitive scientists, behavioralists, and computer scientists to uncover the heuristics utilized by the brain speaks volumes about our conscious awareness of the heuristics applied on our behalf. While we do experience a conscious phenomenon of weighing decisions before us, resulting in volitional action, the selection of heuristics and the application of them in the weighing process appears to be entirely subconscious.

The rest of the analysis descends into a semantic morass. In undergrad I took a 500-level philosophy course that dedicated an entire semester to a single question: What is agency (i.e. how do we define a person's actions)? Based on my experiences therein I'll offer the following conclusion to the above conundrum: Nobody has the first fricking clue what any of this means. At some point in the discussion the level of detail is such that we have no remaining useful intuitions about the basic terms (action, volition, intent, etc.) and they become maleable and in some senses interchangeable. But I'll try...

First, going back to my initial theory of rational as "consistent with or based on reason," I conclude that the variation in outcomes caused by the application of various heuristics are irrational. The output of the more precise heuristic here represents a rational action. By contrast the output of the subpar heuristic is simply not consistent with or based on reason. It is rather the product of, in essence, a cognitive defect. There is a sense in which you could say even the better heuristic is irrational, since it also is frequently an approximation, and it is only by comparison to the subpar heuristic that it appears rational. In other words, there is a danger here that I am calling any nonoptimal (in some ultimate sense) decision irrational. That is not my intent. I think there is something noteworthy about the supposition that a) the human mind can apply heuristics of varying quality to the same problem and b) external stimuli can consistently alter which heuristic is applied. I do not assert that the reasoning relied on needs necessarily to be optimal to be rational, but only that the subpar heuristic is inconsistent with that individual's own ability to reason through the problem (applying their own subjective values and objectives in the process), and that the subpar heuristic is applied not due to a rational choice (i.e. I don't have time to think this through), but as the result of the nonvolitional impact of seemingly irrelevant external circumstances. It is this quality that makes it irrational.

Next, in these cases the action is volitional in any meaningful sense, and yet the decision is framed by heuristic analysis which is subconscious and involuntary. What does that mean? One could say that this infection of nonvolitional framing which resulted in an irrational act caused the act to be effectively nonvolitional. This would fit with Mises' view of action (being nonvolitional, it is no longer assumed to be rational), although the scope of behavioral impact on economic actions would remove from his theories many actions that I think he would have thought covered by them. The alternative, which seems rather more straightforward to me, is to consider this a volitional action, but an irrational one, hence my basic conflict with Mises' assumption.

In either case the results would be the same. In the former, we've just removed a lot of economically significant actions from Mises' theory. In the latter Mises' theory would need to be amended to cover only rational volitional actions and the same thing occurs. In either case we now have a whole class of actions for which we need to reformulate existing economic theories.

Whew. Well, that shoots my afternoon. :)