Doing time in Science jail

David Harris' Science Newsreports that charges of misconduct have resulted in the termination of Jan Hendrick Schon by Lucent Technologies:

The committee found Schön guilty of substituting data from one experiment for another, re-using the same data to represent multiple experiments, failure to keep systematic records of experiments, and destruction of samples, data and working devices. Schön was found to have acted intentionally or recklessly and without the knowledge of his co-authors.

This is of course disappointing for two independent reasons: (a) I have Lucent stock and (b) physicists are supposed to be beyond such things. This episode does underscore the fact that science - like most human activities - is a community based on trust. As this review of Steven Shapin's The Social History of Truth points out:

[Shapin] orients his study in opposition to some received views about science and scientific discourse. One is epistemological individualism--the official position of the British empiricists--according to which the "legitimate springs of empirical knowledge" are located, not in the discourse of groups of people, but "in the individual's sensory confrontation with the world" (202). On this view, the ideal scientist bases his evaluations of empirical claims as much as possible on his own observations and reasonings, instead of depending on the testimony and theorizing of others. Shapin argues, to the contrary, that scientists rely so heavily on the testimony of others whom they trust that we cannot understand the production of scientific truth unless we understand how trust is established and maintained, weakened and lost.

Trust is a social good that is not a universal constant between different societies. Studies of trust as a social phenomena indicate that the highest levels of social trusts are found in Northern European societies, which interestingly is where modern science developed, and may be one reason why science was stillborn in Greece, India and China.

This brings back so many fond memories

The Angry Clam who has gone from reporting on the insanity at UC Beserkly to commenting on the zaniness at my alma mater [Lex Communis, UCLAW Class of '83] has a post about the usual alphabet soup of empowered, balkanized and racially segregated law societies are engaging in the usual leftist agitprop.

Gather around, children, and listen to Grandpa tell you stories about what it was like to be at UCLA Law School back in the fall of 1980, just after Reagan was elected. The sun shone somehow brighter that fall, but it didn't take long for the same students who had been pooling their $5,000 student loans [guaranteed interest capped at 3%] to purchase $10,000 CDs [interest payments guaranteed at 12+%] to send the new Administration paper plates on which they wrote "President Reagan, don't make us choose between education and eating" when he wanted to means test eligibility for student loans.

And, then, I remember being in Con Law [Professor Karst, who was one cool dude for being an unmitigated liberal - and who gave your humble blogger the second highest score in that class for an essay that painted the evolution of First Amendment law as the economic product of the New Class] and reading the Jawhawk Democratic Club decision, which had held that the system which had let whites select a "white" candidate behind whom whites could pool their votes was unconstitutional, but at the same time the alphabet soup of minority law societies would get together to select their single candidate who would then paste the four or five non-minority candidates in their own version of a "whites only" primary, and nobody noticed the hypocrisy.

Ah, what fond memories of being the "only other conservative" at UCLA Law School. It makes me proud to see the Angry Clam carrying on a fine tradition.

Good news: Recent scientific experiments confirm that the universe is gobsmacking weird

ScienceDaily Magazine -- Discovery Supports Astronomers' Paradoxical Views Of The Universe

Welcome ...ibidim...overflow

If you are arriving at this site via Spain, welcome to the "most respected blog in all of north-central Fresno county." I am happy to report that the "Traveller" vs. "Traveler" issue has been cleared up. "Traveller" is the European preference, and "Traveler" is the Yank version. [Honestly, "Traveller" looks correct.] Thanks to ibidem and The Raven for that clarification. I should explain that this is a serious subject among the RC bloggers who make up "St. Blog's Parish." At St. Blog's, grammar and spelling has been turned into a kind of bloodsport by the presence of nihil obstat, who is - and I say this with Christian charity - an anonymous anal-retentive, proof-reading troll, and I mean that in a nice way. Opinions on nihil obstat vary. As for me, I accept his or her presence as beneficial and a goad to proper English usage, and a very real proof of the Catholic doctrine that sins -even grammatical sins - never go unpunished. [I need a plenary indulgence against typos.]

More obscure Science Fiction references

In case you have recently wondered about what became of Samuel R. Delany, Ken's Book Blog [which is another Salon blog] reports that he has written a book decrying the destruction of a community by the heartless operation of an unmerciful society. The community in this case being the Times Square porn community whose unique culture was eradicated by urban renewal. [Although I liked The Einstein Intersection, I have never forgiven Delany for luring me to invest my entire month's allowance in Dhalgren back when I was fourteen.]

Blogville Update.

I didn't know that Salon is running its own blog system, which includes the Raven [ which is mentioned several posts down] and David Harris' Science News which is written by a physicist and is oriented on science.

ibidem has your up to the minute blogopedia on the Irish Travelers [the accused is described in the Irish press - in what seems to be a fit of hyper-political correctness - as an "Irish mother." ] [It seems that I am in Nihil Obstat proof-reading trap. Is it "Travelers" or "Travellers?" My Wordperfect spell check says "Travelers," but the professional news articles seem to use either form at their own pleasure. If this was a verbal form of communication, I'd just mumble at this point.]

Methodist News

This article describes how the UMC has positions on Iraq, Stem-cell research, Guatemala, and the Clean Water Act, but affirms that individual Methodists can dissent on any of these positions and still remain in good standing as Methodists. This formula kind of sounds like an attempted rationalism for a denomination that is becoming progressively less relevant to its membership.

From the Profiles in Election Year Courage File

Ipse Dixit describes the new Gray Davis paid family leave law as flagrant election year vote buying. As this article describes the new law:

The law — financed by an employee payroll tax — allows workers to take six weeks off to care for a newborn, a newly adopted child or ill family member. Employees will be eligible to receive 55 percent of their wages during their absence, up to a maximum of $728 a week.

If Sweden ever revitalizes its porn industry, it will be hard to tell California and Sweden apart.

Insta-expert

My site meter went nuts today based upon the "Irish Travellers" post down below. This suggests that the news media is not furnishing the public with information it would like to know, such as "wht the heck is an Irish Traveller." The same Google search that led to the Lex Communis post turned up this one at The Raven, which is far more direct about the ethnic traditions of the Travellers than I was:

The Irish Travellers are basically gypsies, grifters who work cities like the old-time carnies who were wont to fleece the yokels and scram before daybreak. Driving a distinctive sort of carry-all van, they'll offer to pave your driveway and you'll be thrilled with their workmanship—until the first good rain. The link above to Traveller's Rest notes that not all Travellers are thieves and to those who are hard-working honest people, no offense is intended here.
Mishakawa Indiana authorities (where the event occurred) said, "she did have a history of retail store fraud," which is in keeping with the Traveller lifestyle; the beating she gives her daughter is administered after a failed attempt to scam the department store outside which the event occured. In their extremely insular culture, Traveller women are generally married off within a clan at very early ages, often as young as 11 or 12. One wonders what kind of pathology Toogood may have acquired as a result of her abnormal upbringing, and what future awaits her young daughter.

Not worth a tinker's dam.

One of the interesting aspects of the videotaped child abuse news story is found in this paragraph.

Toogood, who said she is an Irish traveler who currently lives in Mishewaka but moves from place to place looking for work, reiterated her feelings that her daughter should at least be allowed to live with her husband or another family member.

The fact that Togood describes herself as an "Irish Traveller" is mentioned, but elicits no journalistic interest whatsoever. This may be a form of journalistic political correctness since the Travellers are commonly known as a band of itinerant grifters and con-men who prey on their host society. These are the people who will paint your address on the curb and then demand payment. A group of them worked Fresno a few years ago with a roof repair scheme. They have been the subject of a pretty decent movie by Bill "Game over, Man" Paxton. As this movie review describes the subject:

On the highways and backwoods of the rural south, a coterie of Irish grifters live in a world distinctly and exclusively their own. Moving from town to town, the Travellers make their living through the family business, conning and scamming nearly everyone whose path they cross

They do exist, as this post points out:

Irish Travellers (sometimes known as "itinerants" or "Tinkers") are a very small minority group in Ireland. They make up less than 1% of the population with approximately 23,000 people in the Republic and another 1,500 in the North. It is also estimated that there are about 15,000 Irish travellers in Britain and another 7,000 in the USA. Irish Travellers belong to a distinct ethnic group within Ireland. They have their own language, beliefs and social customs which have been made stronger over time due to their exclusion and marginalisation from mainstream "settled" society.
Occasionally Irish Travellers have been confused with the Roma or Gypsies in England, who despite centuries of coexistence, cultural interchange and limited intermarriage, remain a distinct people.
Until not so long ago Irish Travellers were referred to as "Tinkers". This word referred to their occupation as tinsmiths and metalworkers and was derived from the Irish word "ceard" (smith) or "tinceard" (tinsmith). This word is now generally used in a derogatory sense. Most of the Travellers' traditional crafts such as spoon-mending, tinsmithing and flower-making have gone by the way now as a result of urbanisation and the introduction of plastic and industrial technology.

The Bloviator has a lengthy post linking to and discussing recent scholarship on the cause of the malpractice insurance "crisis." [To paraphrase Tommy Lee Jones in Men in Black "there's always a crisis."] Bloviator summarizes that malpractice rates are driven by changes in interest rates, that controlling payouts in malpractice cases by "caps" on malpractice awards does provide a "short term" effect on reducing malpractice premiums, and that doctors over-estimate their exposure to malpractice awards.

This post is the first time that I have seen an acknowledgment that malpractice premium increases result from insurance companies' investment decisions. Although it is politically correct to blame malpractice lawsuits for this "crisis," the fact is that juries are biased in favor of medical practitioners more than any other group in society. If a doctor gets tagged for malpractice, then he or she has done something fairly egregious.

Caps in damage awards may have a short term effect in fighting malpractice insurance rate increases, but they may have long term effects on the victims of medical malpractice. I don't have the citation for this story - I read it in the San Francisco Daily Journal about ten years ago. The opinion piece was by a lobbyist who had represented the medical lobby in enacting malpractice caps in a state in the Mid-west. As fate would have it, the author underwent surgery and had his spinal cord knicked, leaving him in intense pain. Unable to work, his life unravelled. His wife divorced him, he filed bankruptcy, and lost everything except his exempt assets, and he was left to sit in constant pain, reflecting on his good work in limiting medical malpractice damages.

For more on internet defamation law, check out Libel Law Meets The Net - Washington State Bar News

This is creepy.

My post on the recent case defining some edges on the element of "pervasiveness" for environmental sexual harassment claims ended up in sixth place on someone's Yahoo! Search Results for "straddling his groin." [Which phrase is a quote from the published legal opinion.] My post even ended up one place higher than something entitled "Leather Glove Fantasy." I really feel sorry for the person who was obviously looking for informed commentary on recent legal developments and inadvertently wandered into a string of internet porn sites.

New Environmental Crisis

Plants fighting back against African desert areas. The threat to the Sahara desert is blamed on increased rainfall and better agricultural techniques.

Remember when the Mayans were thought to be a gentle people with no experience of warfare? Think again.

This is one weird looking dinosaur.

OmbudsGod

The OmbudsGod links to a post reporting that an academic study has found liberal bias in the media and also posts on the Bob Greene termination story. Check it out.

Star Wars Test?

I saw this tonight. I thought it was a near earth asteroid. But contrary to the article, it appeared to blow up mid-flight, producing a neat dissipation pattern. Another person who saw it says that she saw one missile track collide with another last month. We may have some not-so-secret Star Wars tests going on.

More Heinlein

To keep the Heinlein theme going, check outIpse Dixit - Archives by Month for a link to a picture of Rodin's "Caryatid fallen beneath her stone" which you will remember from "Stranger in a Strange Land." Also, read the post on the artwork of the "Falling Woman." For what it's worth, I think this statue works as art.

Stayner found legally sane; penalty phase next

Here is the Fresno Bee article:

On Monday, the same jury that convicted Stayner of first-degree murder also determined that he was legally sane at the time of the crimes. The same nine men and three women will begin hearing testimony in the penalty phase when the case resumes Thursday afternoon.

I just tracked into this John Scalzi's Whatever Column column asking the immortal question, if you are a libertarian who would you rather have as a parent Ayn Rand or Robert Heinlein. This column is kind of ironic for two reasons.

First, although he may be a big noise in Blogville today, I remember Scalzi as the Fresno Bee movie critic from a few years ago. [He was a good one, too.]

Second, back when I was active in Libertarian college and law school circles, I noticed and would observe that Libertarians had either been influenced by Ayn Rand or Robert Heinlein. One or the other, not both. The Randites were typically physics or math majors. For them, political philosophy was cut and dry. Start with the initial premise of A=A and work everything else out from there.

Those of us from the Robert Heinlein school didn't think anyone had all the answers. [Definitely, including the Randites.] The universe is too complicated for that. Start with obvious axioms and apply incontrovertable logic and you end up thinking that the internal angles of a triangle add up to 180 degrees, which they don't at relativistic distances. Logic's a thin thread to hang your life on. Competence is what really counts, and competence is something that one acquires through experience. If you read Heinlein, you knew that the axiomatic truths of the life were few and number and boiled down to "TANSTAAFL," which meant really that there were no shortcuts or quick and easy answers. Heinlein made it very difficult to become a True Believer.

Synchronicity rules the world

I have been kind of busy this morning taking the deposition of the Plaintiff/cross-defendant in a case where my client is suing for defamation. Although I had neatly comparmentalized my work from my posting yesterday, this case actually meets my criteria for filing a defamation claim: it's necessary since he's already a litigant, it does not involve any public issues, the defamation is tied to actual and discrete business interference, I don't have the case on a contingency and the client is very presentable. So far, so good. Heck, apparently I have my trial brief half written. Cool, I can bill for blogging. [Just joking.]

Too cool for words. Disputations has a "Babelfish" button that translates his page into eight languages. [Might have helped me figure out what the Iranian underground found so interesting.]

The unregulated "Free Market of Ideas."

For a different take on internet activity and libel, go to Rod Dreher on Internet & Libel on National Review Online. Dreher uses Michael Rose's threat of litigation against his critic Father Rob Johansen as the peg for his dire warnings about inadvertently being cast as a defendant in a libel action. A few comments to provide context are in order. Several posts below I make the point that defamation suits are generally bad business propositions. That doesn't mean they don't happen. While I wouldn't generally take one outside of certain rare circumstances - solid business damages, not vaporous reputation damages, a clearly libellous statement, something that doesn't involve a public issue, a plaintiff without substantial skeletons in the closet - if someone wanted to pay me at an hourly rate, then those things are their problem. I have written a number of letters threatening defamation actions. I call such letters "brushback" letters, a term I get from baseball where where a pitcher tries to "brushback" a batter who is crowding the plate. These letters are commonly used where the salesperson of one business starts getting a trifle too rambunctious in casting aspersions on a competitor, or where a former employer is indulging in some hit-and-run bad-mouthing of a former employer. I send the letter, which outlines the law, to the culprit's superior. From there, the usual scenario is that the boss then looks at the letter, wonders why he's getting threatening letters from some attorney he doesn't know, spends a little bit of money talking to his own attorney, and then calls the subordinate in and advises said subordinate that he doesn't need to be involved in such nonsense and that his business will do very well, thank you, without having to incur gobs and gobs of legal fees defending against spurious lawsuits. Oddly, I get good results with this kind of letter for just that reason. The decisionmaker doesn't have a personal stake in the personality conflict, and tells everyone else to "tone it down."

It looks like this scenario has played itself out with the Rose-Johansen contratempts.

And that is a good thing. The core of business and public discourse should be on truth and professionalism.

On the other hand, unless Johansen was making very personal false statements about Rose, Rose's chance of anything but publicity would be very slight.

Also, its useful that everyone get some idea of the edges of defamatory speech. Several posts below I made the point that defamation requires a mistatement of fact. This is an oversimplification. Defamation requires a reasonable fact finder to conclude that the communication implied a provably false factual assertion. Opinions may contain such an implication. Here's a lengthy excerpt detailing some of the edges in this area:

The United States Supreme Court has "recognized constitutional limits on the type of speech which may be the subject of state defamation actions." (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 16, 110 S.Ct. at p. 2704, 111 L.Ed.2d at p. 16.) However, the high court has rejected constitutional protection for defamatory statements simply because they are categorized as opinion as opposed to fact because, inter alia, such a distinction ignores the fact that expressions of opinion may often imply an assertion of objective fact. Nonetheless, the Supreme Court has reaffirmed a line of cases that provide "protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual. [Citation.] This provides assurance that public debate will not suffer for lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added much to the discourse of our Nation." (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. at p. 2706, 111 L.Ed.2d at p. 19.)
Hence, characterizing a developer's negotiating position as "blackmail" was constitutionally protected when used by the Greenbelt News Review because "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable." (Greenbelt Coop. Pub. Assoc., Inc. v. Bresler (1970) 398 U.S. 6, 13-14, 90 S.Ct. 1537, 26 L.Ed.2d 6.) Likewise, the title, "Lies, Damn Lies and Fund Advertisements," was held not to imply that a Fund lied. (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 29 Cal.Rptr.2d 547.) Similarly, a campaign mailer charging the opposing candidate with "ripp[ing] off" the California taxpayer by maintaining a private law practice while on the public payroll was held "when taken in context with the other information contained in the mailer [to be] rhetorical hyperbole that is common in political debate," and not defamatory. (Beilenson v. Superior Court, supra, 44 Cal.App.4th at pp. 951-952, 52 Cal.Rptr.2d 357.) Finally, a "vague charge" that the plaintiff "entered into a corrupt relationship" with a councilman "was not a factual assertion of crime" but implied "moral criticism of objectives and methods, not the occurrence of bribery." (Okun v. Superior Court (1981) 29 Cal.3d 442, 459, 175 Cal.Rptr. 157, 629 P.2d 1369.) [FN12]


FN12. Although the Supreme Court in Okun distinguished between statements of fact and statements of opinion--a distinction now discredited--it also properly recognized that it was ultimately looking at whether a factual assertion had been made for purposes of assessing whether the publication was defamatory. (Okun v. Superior Court, supra, 29 Cal.3d at pp. 450, 459, 175 Cal.Rptr. 157, 629 P.2d 1369.)


"Whether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact---the dispositive question in a defamation action--is a question of law for the court. [Citations.]" In all cases, "[t]he dispositive question for the court is whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. [Citation.]" (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724-725, 275 Cal.Rptr. 494; Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at p. 1500, 39 Cal.Rptr.2d 848.) "Courts must be cautious lest we inhibit vigorous public debate about ... public issues. If we err, it should be on the side of allowing free-flowing discussion of current events. We must allow plenty of 'breathing space' for such commentary." (Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1193, 31 Cal.Rptr.2d 193.)

In this case, taken in context, Scherer's purported use of the words "thief" and "liar" in the course of a chance set argument with a political foe at a shopping center was the type of loose, figurative, or hyperbolic language that is constitutionally protected. (Morningstar, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 690, 29 Cal.Rptr.2d 547.) Specifically, in the context of a heated oral exchange at a shopping center in the midst of a hard-fought initiative contest, anyone who might have overheard Scherer call plaintiff a thief or a liar would have understood Scherer to be furious at, and critical of, plaintiff's position, but would not likely have thought that Scherer's supposed outburst was accusing plaintiff of a criminal past or of dishonesty in his business dealings. There is a difference between a false assertion in campaign literature that a person was arrested or has a criminal past and the assertion of invective in the midst of a heated confrontation over a political issue, given that the standard is whether a reasonable fact finder could conclude that the communication implied a provably false factual assertion. (Moyer v. Amador Valley J. Union High School Dist., supra, 225 Cal.App.3d at pp. 724-725, 275 Cal.Rptr. 494; Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at p. 1500, 39 Cal.Rptr.2d 848.)

Rosenaur v. Scherer 88 Cal.App.4th 260, 279-280, 105 Cal.Rptr.2d 674,687 - 688 (Cal.App. 3 Dist.,2001)

However, no matter where the edges of legally permissible activity lie, it is always a good idea to keep in mind that even if name-calling is not actionable, it is also not very persuasive.

I'll leave it up to Norah Vincent to tell me if this was a frivolous case

The San Francisco Daily Journal had a column discussing the recently decided decision by the California Courts of Appeal in Herberg v. California Institute of the Arts. When I read the facts of the case, I couldn't decide whether to be horrified or amused. Maybe there's a better word for the emotion you feel when you come face to face with an absurd situation in real life that would have made a good plot for the Bob Newhart show. You tell me.

Mary Herberg is 82 years old and works for the California Institute of the Arts ["CalArts"] as a cashier in the accounting department. Her daughter Bobette Heuer works for the CalArts as the director of financial aid, and her granddaughter works for CalArts also.

CalArts is dogmatically liberal. CalArts will have no truck with the cultural philistines who might get offended by a crucifix immersed in urine or the Virgin Mary daubed with elephant feces. It has the following policy provision in its administrative manual:

CalArts’s policy on censorship is contained in its administrative manual: “A. CalArts does not censor any work on the basis of content; nor is any work at the Institute subject to prior censorship. [¶] B. If ny person objects to any exhibit or presentation, that person should convey the objection in writing to the student’s dean. The person will receive a written answer to the objection within 48 hours of its receipt. If the person is dissatisfied with the decision, he/she may appeal it to the [Exhibit Review] Committee. The decision of the Committee is final.”

So far so good. All very politically correct. Then the following occurs:

In the early morning hours of May 13, 1999, two students in the Foundation Art Class, Jeremy Ringermacher and Ariel Rosenberg, exhibited a piece they titled The Last Art Piece. The Last Art Piece is a pencil drawing, about 25 by 40 inches, depicting Herberg and other CalArts faculty, staff and students engaged in various sexual acts. Herberg appears in the center of the drawing, bare-breasted and facing the viewer. She is depicted sitting on top of a nude male faculty member, straddling his groin as though the two were engaged in sexual intercourse.

So the 82 year old Ms. Herberg is publicly represented nude as having sex with a CalArts faculty member. This artwork is used by the artists in critique sessions and is available for viewing by 100 people at a reception:

Throughout the day, the student artists participated in formal and informal critique sessions about he Last Art Piece and its effect on Herberg and the rest of the CalArts community. A reception held in the main gallery that evening was attended by about 100 people. Heuer, her husband and Dutro returned to the main gallery in the late evening to see if The Last Art Piece had been removed. It had not.

Although the 82 year old Ms. Herberg and her daughter complained about being unilaterally made the subject of this painting, she was told by the administration that she had to go through the procedures set forth in the administrative policy manual. [It was also repeated by the Court that Ms. Herberg never actually saw the drawing. The evidence suggests that there was a concerted effort to keep her from viewing the picture such as CalArts suggestion to the daughter that she take her mother out of town for a few days.]

The next day, the artists concluded that they had made their point about the merits of representational art and voluntarily removed the painting.

Ms. Herberg sued CalArts for sexual harassment under the "hostile environment theory." The hostile environment theory allows recovery for damages where a person has been subjected to conduct of a sexual nature which is either sufficiently pervasive or severe enough to change the "terms and conditions" of that person's employment. It was pretty much conceded that being depicted as a wanton harlot for 24 hours was not sufficiently pervasive to meet that prong of the hostile environment theory, so the question was whether the facts showed sufficient severity. The trial court concluded that it did not, and granted summary judgment.

The Court of Appeal agreed, holding:

Liability for Sexual Harassment May Not Be Imposed Based on a Single Incident That Does Not Involve Egregious Conduct Akin to a Physical Assault or the Threat of Physical Assault. Plaintiffs’ hostile work environment claim rests on a single incident: the display of The Last Art Piece in the main gallery for a period of about 24 hours. The trial court properly found that this incident, although doubtless upsetting to the plaintiffs, did not create a workplace that was “so discriminatory and abusive that it unreasonably interfere[d] with the job performance of those harassed.” (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 923.)
Although Herberg and her relatives were understandably embarrassed and upset about the drawing, it is undisputed that the drawing was not intended to harass plaintiffs, but rather to make a point about representational art.

The Court concluded:

Quite simply, no reasonable jury could conclude that the presence of The Last Art Piece in the main gallery for 24 hours constituted severe harassment within the meaning of FEHA.

The commentary I read contained the following observation:

One moral of the story is for employees to consider the nature of the employer's business before choosing to work there."

It seems to me that both conclusions are incredibly cavalier and seem to create a liberal art school exception to the law of sexual harassment. The problem faced by this 82 year old woman is not only the 24 hours during which her likeness was on display for comment, critique and public viewing, it is that throughout the short remainder of her career, she will have to contemplate the unnecessary embarrasment to her family and herself every day she goes to work. ["You know, I think I've seen you before. Wait, weren't you the model for that drawing....."] As for the notion that an employee agrees to assume the risk of public humiliation by being depicted in a sexual performance without her consent, that is just bizarre. ["Well, Honey, one thing you should know before you start here is that every now and again we may post a drawing of you having sex with the sales department. We won't keep it up for more than 24 hours, so it won't be too severe from a work environment viewpoint."] One can imagine a jury's reaction to a defense that a plaintiff should have known that she would be groped occasionally when she went to work for the employer.

The hostile environment concept is the unholy godchild of the feminist movement. Society might be better off without it. But the concept does exist, and was Ms. Herberg's belief that she had been placed in an environment which had become severely hostile due to her employer's refusal to "censor" a sexual depiction of her really unreasonable?

OK. This is strange. I just got a hit from gooya news, an iranian news and article source. Since the entire site is in Farsi, I have no idea what they're linking to or if they like it or if there is a fatwa out on me.

The Law and Internet Defamation

[Bill Cork sent me a nice e-mail asking for my thoughts on the various charges of defamation at certain sites. The following represent my thoughts as a person who sues other people for a living.]

I may be somewhat unique among right-wing blogger in that I am actually a practicing attorney with a not insubstantial plaintiff’s contingency practice, mostly employment cases. This makes me part of the despised class that files innumerable frivolous cases in which I do not believe solely to extort money in quick settlement. So why have I never filed a defamation case?

The answer is that defamation cases are incredibly difficult to prove and the damages in defamations cases are notoriously difficult to evaluate. Notwithstanding various silly comments over at Norah Vincent’s blog site that less than “one in ten” of the cases which are filed have merit, the decision that an attorney makes to take a contingency case is a business decision. Any case I take on contingency obligates me to invest somewhere between $3,000 to $10,000 of my own cash in costs and somewhere between $30,000 to $100,000 of my time. Unlike defense counsel who are paid an hourly rate and do not suffer from having to make a decision to take a case, I have to make my decisions very carefully. One case where I have been hoodwinked by a client, or I have failed to properly evaluate, and I could be in bankruptcy. Defense counsel can abandon their clients when they don’t get paid. Plaintiff’s counsel can’t. As a practical matter before I take a case on a contingency, I want three things: (a) a sympathetic client, (b) facts that tell a story of injustice and injury and (c) a solvent defendant. Miss any of those elements and I won’t invest in your case (and, if I won’t, neither should you.)

So, I have been reading the latest allegations by people with hurt feelings with some amusement. Robert Sungenis is concerned that statement that he is “anti-Semitic” founded upon his publication of supposed excerpts of the Talmud that purport to advocate sex with three year old male children constitutes defamation. He writes:

He also chose to slander me and the CAI apostolate with such wording as "ugly lies" "abominable" "despicable," "godless trash" "vulgar and hateful Jew-bating calumny," among other derogatory terms. He then adds injury to insult by telling his audience not to support CAI. Unfortunately for Mr. Scott, he doesn't know how close he is to a libel suit for his deliberate and inflammatory defamation, especially his call to boycott funds from CAI.

Ms. Vincent is concerned about people accusing her of being less than honestin part because her blog’s motto makes an appeal for money Ms. Vincent writes:

...A couple of gleeful little nitpickers, who clearly have nothing better to do than comb my site for crunchies, have been spreading the word that I’ve been soliciting money for my website under false pretenses. Their claim? Blogging doesn’t cost anything, so why do I have the following blurb posted next to my tip jar? “Web real estate is expensive! If you like the site, toss me some coin to help put a virtual roof over my head!”

The answer is that my blog has indeed cost me something. On the very first day the blog went up I received enough visitors to overload the system, and was obliged to purchase more bandwidth from my server in order to get the site up and running again. This detail was something none of these sleuths bothered to check out before they went to town with their puggish indictment. This is a very minor point, but an example of the kind of small-minded sludge that passes for commentary on certain blogs. To those in question, and they know who they are, I say this: If you don’’t like my ideas, don’’t read them. If you disagree, by all means do so. But don’’t poke around making petty accusations you can’’t substantiate.”

I would, incidentally, be interested to hear from the lawyers out there about what the rumblings are in the legal community regarding blog abuse and what can be, or perhaps is already being done about it. Is there a body of ““bloglaw”” already taking shape in the wings? What are the issues at hand? Will blogs be subject in the future to the same rules as print venues——rules regarding fact and harm?

I’m particularly amused by Ms. Vincent’s final comments for two reasons: (a) it proves something I have observed about people who are most concerned about litigation reform - it’s always the other guy's legal claims that are frivolous and (b) at the end of this post you will see how the legal system encourages irresponsibility by the media - if conventional manufacturers had the same legal protections as newspapers, one in four automobiles would spontaneously explode.]

Herewith a brief outline of defamation law.

Basic elements of defamation claim

Black-letter Law. Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Civ.Code, §§§§ 45, 46; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts §§ 471, pp. 557-558; Smith v. Maldonado 72 Cal.App.4th 637, 645, 85 Cal.Rptr.2d 397, 402 (Cal.App. 1 Dist.,1999]

An alleged defamatory statement must contain a false statement of fact; a statement of opinion is not actionable. [Gregory v. McDonnell Douglas Corp. 17 Cal.3d 596, 601, 552 P.2d 425, 427-428, 131 Cal.Rptr. 641,643 - 644 (Cal.,1976)

Analysis Both Sungenis and Vincent seem to have problems with establishing a prima facie case of defamation. A good defamation case requires a false statement of fact. If someone had alleged that Sungenis is a member of the Nazi Party or received money from Saddam Hussein, he might have a better claim. For someone to assert that Sungenis is in their opinion anti-Semitic based on his writings is simply not actionable. Likewise, comments and inferences based upon Vincent’s writings are matters of opinion, and any good judge would bounce a defamation complaint on demurrer or summary judgment.

Affirmative Defense

Black-letter law: By voluntarily injecting oneself into public discussion and issues, one becomes a limited-purpose public figure for the purpose of defamation analysis. [Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Thomas v. Los Angeles Times Communications LLC 2002 WL 31007420 (9th Cir.(Cal. (C.A.9 (Cal.),2002)] A public-figure plaintiff must prove by clear and convincing evidence that the defendant published the disparaging statements about the plaintiff with actual malice. [ See Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir.1990); Suzuki Motor Corp. v. Consumers Union of U.S., Inc. 292 F.3d 1192, 1200 (C.A.9 (Cal.),2002).]
Actual malice requires a showing that the defendant made a false statement "with knowledge that the statement was false or with reckless disregard as to whether or not it was true." [Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).]

While truth is always a defense, and normally the burden of pleading and proving truth is on the defendant (Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233, 11 Cal.Rptr. 97, 359 P.2d 465), in an action initiated by a private person on a matter of public concern, the First Amendment requires that the plaintiff bear the burden of proving falsity. [Philadelphia Newspapers v. Hepps (1986) 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783; Rest.2d Torts, §§ 613, com. j.]

Analysis This is the defense that separates the media world from mere manufacturers. Issues of public discussion are pretty much a free-fire zone. The rules to which Ms. Vincent refers - and which keeps attorneys for newspapers occupied - involve private figures. Most news stories frankly do not involve people who reach out for attention and voluntarily inject themselves into public discussion, such as happens in Blogville. Most people are “private figures.”

On the other hand if you have a blog and write on an issue, congratulations you have become a public figure, and you bear the burden of showing (a) what was said about you was untrue and (b) the person saying it knew it was untrue or was “reckless” as to determining whether it was untrue. Further, you have the burden of proving your case by “clear and convincing evidence” which is the same standard used for obtaining punitive damages, and any experienced attorney will tell you that right-wing calls for jury reform notwithstanding, the clear and convincing evidence standard is a very rigorous burden of proof. [One simple recommendation for winning a defamation case, make sure that you have a citation for your arguments.]

Miscellaneous Procedural Issues

I did some brief research on the issue of jurisdiction and venue. It appears that under California law, defamation written by someone in Wisconsin and read by a plaintiff in California do not establish sufficient “minimum contacts” for suing the Wisconsin defendant in California. [See Nam Tai Electronics, Inc. v. Titzer 93 Cal.App.4th 1301, 113 Cal.Rptr.2d 769 (Cal.App. 2 Dist.,2001)]

I could be wrong, but this may be the issue that Denise Howell over at Bag and Baggage recently argued before the California Supreme Court so the rule may be changing, or not.

The bottom line is that if you have to go to the defendant’s jurisdiction, and home county, internet defamation cases become a lot more costly and lot less attractive.

Concluding Policy Thought

“However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” [ Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339--340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789.]

It’s called the “Free Market of Ideas.” Neither Mr. Sungenis or Ms. Vinson need a defamation lawsuit. Both of them have the ability to circulate their response, and make their cases. I think Ms. Vincent has done that. I agree that the people carping at her are nitwits who disgrace their ideological position by the mewling and puking nature of their charges. I picked all that up by simply reading both sides. As for Mr. Sungenis, I think he stands indicted in my humble opinion as guilty of anti-Semitism. The issue of anti-Semitism is not discharged by having Jewish friends in college. I think William F. Buckley, Jr. in the issue of National Review which banished Joseph Sobran and Pat Buchanan correctly noted that anti-Semitism can be as much a matter of tone and style as substance. One may permissibly oppose aid to Israel without being anti-Semitic, but the first time you start making dark reference that the Gulf War was a Jewish conspiracy, you have crossed the line. If Mr. Sungenis is concerned about his reputation, then he has adequate private, non-Statist means to protect his reputation. And that is what the “Free Market of Ideas” really means.

One last point, while I’m at it. One ironic thing is that Mr. Sungenis and Ms. Vincent might be more susceptible to lawsuits about their writings than their critics. In May of 2002, the California Supreme Court decided in Kasky v. Nike that persons who made public statement as part of their business and because of their profit motivation could be sued for “unfair business practices” if they made misstatements of fact in their publications. I don’t really believe Kasky will be extended to writers like Sungenis and Vincent, but Kasky did take the position that strong First Amendment protections were not needed where there was a profit-motive on the part of the speaker. Since both Sungenis and Vincent make a living by selling their words, the principle of Kasky could be extended to them. [Threatening litigation is like riding on a tiger; getting off the back of the tiger may be more difficult than getting on.]

Best News of the Week

Rand Simberg posts on this exchange between Buzz Aldrin and a kook who believes the Moon landing was a hoax.

On Tuesday, in Sibrel's own words, referring to Buzz, "I approached him and asked him again to swear on a Bible that he went to the moon, and told him he was a thief for taking money to give an interview for something he didn't do..."

Whereupon the second man to walk on the Moon Sunday-punched the kook. Now, although Simberg does make a sound case that the alleged punch never happened - would a 72 year old MIT graduate really punch a 37 year old conspiracy nut, and how hard would it be to fake this so-called event - nonetheless the publishing staff of Lex Communis is hoarding its spare change for a Buzz Aldrin Beer Night.

And, by the way, here is a site that debunks the "Moon landing was a hoax" lunatics.

Some interesting questions are raised at 50 Reasons Lord of the Rings Sucks.

This article suggests that there may still be hope for the Episcopalian church:

Far from being another one of those ugly courtroom dramas which occasionally blow up in the churches with no consequences, this has been a cause celebre. The current Archbishop of Canterbury, like scores of other bishops worldwide, refuse to recognise the validity of such a desperate process. But in an exceptionally brilliant strategy, Bishop Bennison was wrong-footed by an African Primate and neighbouring Bishop. Archbishop Bernard Malango of Central Africa agreed to receive Father Moyer as a priest about six weeks ago, in preparation for a deposition. Then he was able to transfer Moyer as a priest to the Diocese of Pittsburgh -- without the necessary letters dismissory required in ECUSA -- which under Bishop Robert Duncan is one of the few centres of sanity in American Episcopalianism.

John Dean's essay, "The Seventeenth Amendment Should It Be Repealed?", makes the interesting and quixotic argument that federalism might be strengthened by repealing the Seventeenth Amendment and allowing state legislatures to pick Senators.

Better living through a stronger vocabulary; Freedom in the Gap

Once a month, I get together with about four other people at the local Catholic book store for a Communio circle. The purpose is to read an discuss an article in Communio: International Catholic Review. Communio's mission statement is as follows:

Communio was founded in 1972 by a group of theologians that includes Hans Urs von Balthasar, Henri de Lubac, and Joseph Ratzinger. It stands for the renewal of theology in continuity with the living Christian tradition, and continuing dialogue of all believers, past, and present.
Communio regularly carries articles on philosophy, the arts, and the relation between Catholicism and American culture. In a regular feature which we call "Retrieving the Tradition" we reprint Catholic classics of our time by Bernanos, Blondel, Chesterton, Claudel, Dawson, Day, Gilson, Guardini, Pieper, and many others.

Communio is just chock-a-block full of incomprehensible theological/philosphical articles that elude understanding. Often the article seem to be extended inside argument between theologians that lesser mortals aren't privy to. The trick is to wade your way to the end of the article to find out the real point of the article, and then to go back and see how the meandering skein of thought got you to the conclusion.

And, of course, there is the thick, impenetrable writing style of which this is an example from Roger Duncan's "Emmanuel Levinas in the Light of Fides et Ratio"

Husserl had explored consciousness as the intentional constituting correlate of an objective and invariable structure of meanings, only to keep coming up against a surd of non-intentional consciousness prior to and controlling intentionality, relativizing its clarity.

Put aside the fact that "intentionality" has an undefined technical meaning which is not the same as "intentional." What the heck is a "surd?" The speculation last night was that it shared a cognate root with "absurd." Of course, since we were meeting in a Catholic bookstore, there were no dictionaries available.

The answer from a quick google search is:

"surd:"
A quantity that cannot be expressed as a rational number. It consists of the root of an arithmetic member (e.g. [sqroot]3), which cannot be exactly determined, or the sum or difference of such roots.

"Surd" - use it in conversation today.

[Parenthetically, Duncan's point is identical to the passage I read this morning in John R. Searles "Rationality in Action:" Rationality in Action is concerned with the issue of choice. Searles' argument is that there is always a "gap" between human actions and the causes or reasons for the actions, which gap is a function of "free will." Searles makes the point on page 74 that "The intelligibility of our operation in the gap requires an irreducible notion of the self." Now, if you have read Fides et Ratio, you will recall that John Paul II's principle concern was restoring a philosphy of "being." Wander over to Joshua Claybourn's Domain and you will see an interesting series of comments on the issue of atheism and ethics. Several posts by atheists claim that all human action is determined mechanistically, which is the issue that both Fides et Ratio and Searles contradict. Interesting, it may all go back to a "surd" of "non-intentional consciousness prior to and controlling intentionality" if you get my meaning.]

Coming Here Soon - Blame Canada

In case you missed it, trial judge NOV's fraud verdict against Simon

The trial court judge has overturned the jury verdict against Gubernatorial candidate Bill Simon's company.

Republican Bill Simon's beleaguered campaign for governor of California received a jolt of good news yesterday when a judge overturned a $78 million fraud verdict that a jury had levied this year against his family's investment firm.
Judge James C. Chalfant dismissed all of the damages against Simon's firm and ruled that it had been the victim, not a perpetrator, of business fraud. Simon, who is running for public office for the first time, had called the earlier jury verdict "silly and outrageous."

This is not an appellate decision. On motion within approximately 60 days, the trial court judge can set aside a jury verdict on the basis that jury's finding is not supported by any "substantial" evidence. This is actually an extremely high standard, and judge's are traditionally very reluctant to set aside a jury's verdict. The plaintiff will certainly appeal this ruling.

Janet Reno is a loser

In the Florida primary, McBride claims the victory - because he got more votes, but Reno wants a recount. Great, it will give her more time to write her memoirs and describe how she had the longest tenure as Attorney General and yet found time to send an eight year old back to a totalitarian dictatorship at gunpoint.

Good news for the Bankruptcy bar. The Bankruptcy reform bill has been put on hold again. This time conservative support for the legislation went spongy because of punitive ideological provisions which had been put into the bill to single out anti-abortion activities for particular opprobrium.

England Rules

I found myself in the absurd position on Wednesday(9/11/02) of getting involved in a bar argument with a fellow Irish-American where I was arguing in favor of England. His position was essentially "screw the English" until they get out of Northern Ireland. My argument was that since 9/11/01, England has been America's staunch ally and best friend - who can forget the Queen ordering the playing of the Star Spangle Banner at the changing of the guards on 9/12. As proof-text, read this Samizdata post and look at the impromptu posters in which the "real England" shares America's remembrance of 9/11.

As Jonah Goldberg observed America means we are not slaves to history

Jonah Goldberg's Goldberg File on National Review Online But, despite the best efforts of our public schools, Americans actually understand their history. We just don't wallow in it. Because one of the great things about America is that it was designed to be a life raft to escape the sinking ship of history. If Arabs and their American apologists want to bitch and moan about the crusades, if they can't get over the fact that a few hundred years ago their societies imploded like a bad soufflé in a clay oven, that's their problem. We're not mad at the Japanese for bombing Pearl Harbor anymore, but we're supposed to keep apologizing for a defensive war launched by popes nearly a millennium before the Boston Tea Party? Get over yourselves, you're not that important.

Compared to America, why should I care about Irish history? I am an American. England has supported America. England rules.

Coffee, Croissants and Christianity

Ad Orientem reminds us of September 11, 1683 when the Ottoman Empire's first assault, and best chance, to take Vienna failed. [The odd title to this is a backhanded reference to the tradition that the European taste for coffee is ascribed to the vast quantities of coffee left behind by the departing Turkish armies, and that croissants were initially baked to commemorate this victory of the Cross over the Islamic crescent.]

"A little coldness at sunrise tomorrow."

Peggy Noonan offers her view on the day after September 11, 2002.

The New Jerusalem

Rich Galen looks for the meaning in the last year:

A year ago our enemies tried to darken liberty's torch. Yet that torch continues as a powerful lighthouse; Guiding those who are searching for even the most fragile pathways to liberty in even the most distant land.
And our Constitution still sets the metes and bounds of delegated authority. Not just in America, but as a marker wherever people pray - and fight - for freedom.
And we strive, every day, to make our national soul worthy of being his "memory's mansion."
And so was made, as Genesis promised, "a great nation."
God HAS blessed America.
The new Jerusalem

War and Remembrance

James Lileks reflects on the last year.

The Rest of the Story.

[Via Penner] Here's more on the story about the guy who cut down the tree bearing the purported apparition of Mary. Apparently, he didn't own the tree; it was on property owned by the Alta Irrigation District, which decided not to press charges. Further, it appears that his distaste isn't really directed against Catholics; it's directed against non-whites and Jews. According to this Fresno Bee article:

It's an area where neighbors know one another well, and everyone knows Bill Gaede. He owns cattle, shoes horses and isn't quiet about the fact that he doesn't like Jews or nonwhites.
An atheist, he particularly didn't like the road clogged with Mexican people looking at a vision of the Virgin Mary when he drove by in his pickup with the swastika flag.
Gaedes' wife, Dianne, said the flag just flies the symbol they use as a cattle brand, and they don't think of it as the Nazi symbol.
"It's just defiant. It's an Indian fertility sign around for thousands of years, and no law in the world says we can't have it for a brand."

This guy uses a swastika to brand cattle?

Ok. That's different. Arrest him.

Just joking. Clearly, the Irrigation District could have had him arrested for trespass. [And can sue him for treble damages for injuring timber under the Civil Code section 3346.] Mr. Gaede is clearly a kook, but while trespass and property destruction are crimes, being a kook isn't.

From the "Never-ending quest to show that George W. Bush is the most inarticulate person to ever gargle in the English language" File.

Heres a Washington Post article entitled, "Crawfishing from a Unique Vernacular." The article is a meandering stewpot. The purpose of its disjointed paragraphs is really not susceptible to logical parsing, albeit it does seem commited to creating a tone that President Bush is really inarticulate, even though he's not. For example, the article initially spends a paragraph "quoting" Bush's observation that if people are left their own money, they will demand "gooder services." A reader's initial reaction would probably be to groan at Bush's inability to comprehend points of English usage that the average second-grader has mastered. But the article then points out that "gooder service" is actually a transcription error and that Bush had said "good or service."

The reader then should ask something like "does the author of this article have any intent to ever connect to the alleged topic of the article?" How is a transcription error an example of anyon'e "vernacular?" Sure, quoting the unscripted speech of conservative polticians is always good for a cheap thrill, but any attorney knows that transcription errors are a dime a dozen and are usually the fault of the transcriber, not the speaker. [Also, transcription errors are frequently unintentionally amusing. I remember asking about "alzheimer's disease" in a deposition, only to have my question transcribed as asking about "old timer's disease," which almost works. I guess that is an example of a "Central California vernacular."]

Anyhow, the article then observes that "the phrase, which Bush uses, regularly, has posed some difficulty for him." So, maybe it really is Bush's fault after all.

Then, the article moves into the "they hate things, we love things" quote that Eugene Volokh has debunked by the simple expedient of quoting the phrase in context. [Ah, context, what a concept.]

The article than moves on to the great "crawfish" controversy of 2002, which the press presumably lept onto to show Bush's mangling of language. The problem is that the word "crawfish" actually is recognized by dictionaries, and connotes the sense of a hasty and undignified backtracking from a previously intransigent position accompanied by bluster and bluffing. For example, the common English phrase "Well, maybe Bill Clinton did commit perjury, but so what? He was defending the Constitution, and he was being hectored by mean-spirited religious hypocrites" would be an example of crawfishing. Although, the author of this article may not have heard of this use of the word "crawfish" in J-school, I knew it, and I have never lived anywhere near the deep South.

The article neatly seques from the only thing near the topic of "vernacular" usages to accuse Bush of "crawfishing:"

Bush has also found a clever way of dismissing administration leaks. Rather than confirm or deny the leaks, Bush crawfishes: He belittles the leaker's rank in the government. Asked about finger-pointing between the FBI and the CIA this spring, Bush dismissed it as "the level-three staffers trying to protect their hide." Asked about an attack on Iraq at a July 8 press conference, Bush scoffed at "somebody down there at level five flexing some know-how muscle." He did not explain why this leaker was two levels below the other.

What the heck does this paragraph have to do with the initial premise of the article. The initial premise appeared to be that Bush misused the language by his resort to some unique regional "vernacular" usage, although apparently he's not using vernacular English, he's simply the victim of garden-variety transcription errors. It then moved on to interesting regional lexical usages which had been previously unknown to the Post, but which, in fact, would have been known to anyone who read material broader than the New Yorker or George.
Apparently, not content to violate only the generally accepted rules of essay writing - define a topic and stick with the topic, the article elects to lapse into a state of existential logical fugue by first defining "crawfish," and then misusing the recently defined word in the next paragraph. Nothing in the relevant comments about leaks constitutes "backtracking." Bush is "poisoning the well," but really how does that subtle rhetorical technique have anything to do with Bush's employment of an odd regional "vernacular?"

The article ultimately leaves gives up the ghost with respect to every reconnecting with its topic with this concluding paragraph:

An agitated Vice President Cheney, in a tête-à-tête with NBC's Tim Russert on Sunday, said it was "reprehensible" that people would think the administration had "saved" its ammunition on Iraq to bring it out now, 60 days before an election. "So the suggestion that somehow, you know, we husbanded this and we waited is just not true," Cheney said.

Now where would people get such a cockamamie idea? Well, maybe from White House Chief of Staff Andrew H. Card Jr. and Bush political adviser Karl Rove, who made the case to the New York Times's Elisabeth Bumiller last week that they pretty much did what Cheney said they didn't do -- waited patiently and deliberately to launch a long-planned rollout. "From a marketing point of view, you don't introduce new products in August," Card said. Added Rove: "The thought was that in August the president is sort of on vacation."

Again, what does this have to do with Bush's vernacular usage of the English language? Where is the Bushism in this passage dealing with Cheney's appearance on Sunday morning news shows.

And, finally, exhausted by following that last capricious leap from topic to topic, the article ends.

Swimming against the tide

Korean Pentacolist church joins the Episcopalian denomination.

Dave Barry on September 11

In case you missed it, here is the link to Dave Barry's column, On hallowed ground. Reflecting on Lincoln's dedication of the Gettysburg military cemetary, Barry writes movingly on what should be the true focus of the anniversary of last year's treacherous and cowardly attack on unarmed civilians:

In the Gettysburg Address, Lincoln was essentially trying to answer a question. The question was: How do you honor your heroes? Lincoln's answer was: You can't. No speech you give, no monument you erect, will be worthy of them, of their sacrifice. The best you can do is remember the cause they died for, finish the job they started.

Amen. Next Wednesday is no occasion to celebrate - we haven't won. It is not an occasion for public reflection on how America has changed - this is real life, not some encounter group. It is not an occasion for speeches that talk about "we" or "I" - they - Flight 93 - sacrificed themselves to protect their country, we didn't do anything. Wednesday is a day for a brief private reflection on where one was exactly a year ago, a time to remember what it felt like to be an American that day, and how it felt to see the celebrations on the West Bank as American children were vaporized. It is a day to join James Lileks in thinking about Christine Hanson who didn't get to see her third birthday because a score of sick, twisted cowards wanted to hasten the dawn of the glorious Tenth Century:

Tonight I was googling around looking for a picture of Christine Hanson, the daughter of Kim Ji-Soo and Peter Hanson. She was two. The family was flying to Disneyland when the terrorists slaughtered the flight attendants, stabbed the pilots to death, and drove the plane into the building. (Yes yes, we know what happened; don’t be so dramatic, and Disneyland? Please. You’re getting bathetic.) My wife came up with Gnat to say goodnight while I was searching; I gave the little tot a peck on the lips and told her daddy loved her, and went back to work. As I heard the crib rail go up I heard a particularly deafening jet pass overhead - one of the old unhushed cargo planes that makes the china rattle at Jasperwood - and I remembered something from last night.

Later he writes:

Little Christine was Gnat’s age, give or take a month; bin Laden’s lackeys killed her - and did so to ensure that other fathers, mothers, brothers, and sisters died as well, preferably by the tens of thousands. This little girl’s death wasn’t even a comma in the manifesto they hoped to write. They made sure that her last moments alive were filled with horror and blood, screams and fear; they made sure that the last thing she saw was the desperate faces of her parents, insisting that everything was okay, we’re going to see Mickey, holding out a favorite toy with numb hands, making up a happy lie. And then she was fire and then she was ash.

I feel the same anger I did on 9/11; I feel the same overwhelming grief. Nothing in my heart has changed, and God forbid it ever does.

Lincoln's speech lasted twenty minutes. That should be the limit of our public ceremonies. Privately, we should all remember the events of one year ago, remember that even innocent children were vaporized for a Holy Cause, and demand that the job of protecting the nation which started on Flight 93 be finished.

Hometown News

Man cuts down tree allegedly bearing likeness of Virgin Mary. I hadn't heard about this "apparition" until I read the article via Amy Welborn's sit. In any event, read these facts:

But the Fresno County Sheriff's Department didn't charge Bill Gaede, who cut down the tree Thursday morning and allegedly screamed, "You Catholics! There's your virgin," because they have no victim. And with no victim, they have no crime, they said.
Detectives on Friday asked a circle of people praying around the felled trunk if someone would press hate-crime charges. All said no.

Now, let's think about this. The tree's owner chops down his own tree and he gives voice to his personal opinions about Catholics and/or the Virgin Mary. Where's the crime? Last time I checked, being a jerk is not against the law. Frankly, the scary thing is that the police asked the onlookers if they wanted to press "hate-crime" charges aginst this man's lawful exercise of his voice and his axe. The scary thing is that there are such things as "hate-crimes" in the first place.

Discriminations lays out another case of historical malpractice, the alleged slave conspiracy engineered by Denmark Vesey. Apparently, modern scholars have embraced the case of an African-American freeman who was found guilty of purportedly engineering a massive race revolt by a racist legal system that ran a kangaroo trial. Historian Michael Johnson has determined that Vesey was probably innocent of the great conspiracy, which, when you think about it, adds to the horrific indictment of slavery. John Rosenberg at Discriminations writes:

Finally, however, the scandal Johnson has unearthed is not so much the "unrelenting carelessness" of so many historians re the documentary evidence that he discovered. It is that, in practice if not in theory, many historians have succumbed to the post-modernist claptrap of Fishian "metahistorian" Hayden White, cited by Johnson, who argues "that historians who go to the archives engage in meaningless ritual since what they find there only fits their preconceptions and what they write is, in any case personal invention." (p. 200).

I am going to hazard a guess that modern historians wanted the image of a powerful African-American freeman as a kind of wish-fulfillment. It's not surprising that they went off the tracks, but one has to be skeptical when historical finds match political motives. Tonight the Discovery Channel had an hour long show on the purported finding of evidence of female gladiator. There may have been women gladiators, but given the wish-fulfillment theme among the avant-garde about women breaking out of gender roles, I would want more evidence about the extent or reality of this phenomenon.

Via Kate Tushnett comes this neat site - Dark Room - which focuses on film noire.

Kevin Holtsberry is pleased to see the 49ers win the opening game since he picks them to win the whole thing. I like that; it may give me a reason to pay attention to the NFL this year.

New Blog

JURIST - Tillers on Evidence

Steve Ray takes on Sola Scriptura.

No enemy to the left?

One of the reasons that the modern conservative movement owes a large debt to William F. Buckley, Jr. was his unwillingness to accept the liberal dogma that there is "no enemy to the left." Moderate leftists have rarely resisted the temptation to radicalize their position by disassociating themselves from extremist allies. The history of the Russian Revolution and the silly Sixties provide examples of moderate leftists being caused to adopt bizarre and unhealthy positions because they seem unable to deny the moral highground to the radical minority.

Buckley, in contrast, on several occasions has excommunicated former allies from conservativism, generally over the issue of anti-Semitism. For example, in the 1950's, Buckley exiled the John Birch party to the fever swamp of the radical right, and in the early 1990's, Buckley publicly excommunicated Pat Buchanan and Joseph Sobran for the implicit anti-semitism of their writings. Conservativism was strengthened by its refusal to adopt the pestilential attitudes that these former fellow travelers brought with them.

Mark Shea seems to be playing a similar positive role in Catholic circles. Go to Shea's site and track the posts to Catholic Apologist Robert Sungenis' posts on the conversion of the Jews. Sungenis has elected to go beyond legitimate arguments about why the conversion of the Jews is a theologically legitimate objective. Instead, Sungenis has chosen to recycle the worst slurs and slanders in the anti-Semitic repertoire. Shea is right this is poison, and it poisons all Catholics who do not immediately repudiate Sungenis. Sungenis gives aid and comfort to all enemies of Catholicism and poisons the relationship beween Christians and Jews.

Beacon of Light Redux

Professor Reynolds surrebuts Eric Alterman on the Sweden vs. Mississippi debate. Reynolds concedes that Mississippi may not be wealthier than Sweden, but accepts Alterman's concession on the other points of Swedish non-exceptionalism. For me, though, the real point is at the end of Reynolds post where he points out that for many, including Alterman, Sweden does remain a beacon of light.

Which raises the question, why would anyone have a vested emotional interest in proving that his country is inferior to another country? Certainly, we all do not have to be hyper-chauvinist, and objectivity is a good thing, but it seems perverse or pathological for someone to have an emotional stake in proving the inadequacy of one's own country.

The OmbudsGod has this link to a Washington Times article about a Harvard professor whose mission is to "abolish the white race." By this, Noel Ignatiev means that the corporate cultural consciousness of "whiteness" needs to be eradicated from the minds of whites. There are really only two problems with this agenda. First, insofar as I know from personal experience, there is no such "white" corporate mind. People tend to divide their personal map of the social world in ways that are important to them. Some people divide the world up by religion or ethnicity or sexual orientation or membership in clubs. The only people who can be counted up consistently to divide the world up racially are either lunatic white supremacists and some not insignificant percentage of the African-American population for whom the racial division may in fact be significant. [In fact the best way to break down racial divisions is to accentuate the importance of trans-racial identities such as religion or service clubs.]

The second problem is the diversion of resources. It seems to me that the quickest way to ensure that a culture or people not get out of its historical box is to obsess on the past. There should be a real concern that every talented mind drawn into some cloud-cookoo land project like this one, means that there is one less talented person making a contribution to the community, be it through business or science or the construction of community infrastructure.

Irony Alert

Remember the Wiccans? A ritual candle used by that "ancient" religion of nature worshippers, is being blamed in starting the Angeles forest fire. Or maybe it was the Satan worshippers. Whatever. It certainly wasn't any of the real religions that keep their candles inside churches. [Via Rand Simberg]

Never say niggardly, Nigeria, niggle, or for heaven's sake, Niger

Via Mark Shea is this Wilmington Star article on a school teacher who was reprimanded by her principal for describing a literary character as, gasp, niggardly. Once upon a time, sexual ephitets were verboten in polite company and pants were painted on nude artwork. That kind of Victorianism was laughable, wasn't it? We're ever so much more enlightened in our modern progressive age.

Litmus Tests Again

I observed several posts down that one generally applicable litmus tests between conservatives and liberals is their basic attitude toward the United States. Conservatives, like Rich Galen,for example, think the world is lucky that America is the only superpower in existence. Given America's documented history of providing foreign aid and establishing democracies in countries that it has conquered in war, this seems like an obvious empirical fact. Many liberals seem to believe that on balance the world is worse off for the existence of the United States. They usually have to rely on fanciful hidden conspiracy theories that would make stories of the Illuminati look pale; for example, America's intervention into Afghanistan and Somalia were due to oil.

That makes this counterpoint between Eric Alterman and Glenn Reynolds touching. Alterman opened with the observation that America could take lessons from Sweden. Glenn Reynolds countered with the observation that Sweden is no beacon of light since it is poorer than Mississippi and has a higher crime rate. Alterman then resorted to this plea for factual support for his worldview

Glenn Reynolds says I’m wrong to admire Sweden — though he seems to give Denmark a pass — owing to their crime rate which is allegedly worse than ours and their poverty rate which is worse than Mississippi’s.

I find the first part hard to believe and the second part, for now, impossible. Some sound evidence on this question please. This sounds like a job for Maxspeak, who is already on probation linkwise, or else an intern at Tapped.

Which neatly proves my point about litmus tests. Alterman just knew that Sweden had to be superior to the United States because, well, the United States really can't be superior to the ethically superior Swedes because America has so many things wrong with it. But Reynolds citation to the 2000 Crime Victim Survey points out that Sweden falls into a group of countries where over 24% of the population is victimized by crime. It also contains this observation:

Women in Sweden, Finland, Australia and England and Wales were most at risk of sexual assault. Women in Japan, Northern Ireland, Poland and Portugal were least at risk. Many of the differences in sexual assault risks across country were small. Generally, the relative level of sexual assault in different countries accorded with relative levels of offensive sexual behaviour - though there were a few differences

Recently, several posts have noted the recently emerging phenomena of gang rapes in Sweden and Australia.

I don't know about Sweden's per capita income compared to Mississippi, but a brief google search unearthed this United Nations Statistics Division report which shows that Sweden has a per capita income of $26,968, while the United States per capita income was $32,778, or the United States per capita income is 20% higher than Sweden's, with a much lower tax rate that supports a much larger military commitment that kept Sweden from becoming a pimple on the tail of the Soviet Union. this Mississippi state document shows that Mississippi claims a per capita income of $20,688 in 1999, with a sharp decline for 2000. So, Professor Reynolds may have been overstating the Mississippi comparison as it relates to income, but on balance Sweden does not come off as superior to America, which was Alterman's point.

These statistics are somewhat surprising, but only because it is customary to be skeptical of claims of American exceptionalism.

"A dragon lives forever; but not so little boys. Painted wings and giant's rings make way for other toys."

Rich Galen is recycling his essay from last year on the topic of the "first day of school," but it's really about parenthood. It has particular resonance for me this year because I took the Widget to her first day of Kindergarden last week, which doesn't seem possible since it was only yesterday that I was taking her to her first day of daycare in her baby carrier.

LA Cathedral

If I did this right here is the LA Times graphic of the new LA Cathedral. Now, my aesthetic ability is so questionable that they've revoked my critical judgment, but when I first saw drawings of the Cathedral, my immediate reaction was "Hey, it looks like the ski lodge at Squaw Valley." On further reflection though, I realize that it may actually evoke a memory of California Mission architecture. If so, it may stand the test of time.

Stayner Trial Update

The Stayner trial enters the sanity phase. I didn't realize this, but it appears that the guilt phase goes first, and that the defendant gets to put on evidence of sanity to negative the intent element, then there is a sanity phase, which seems redundant to the finding of guilt, and then there is the penalty phase. Anyhow, Stayner had a defense expert testify about his family history:

Stayner, too, was shaped by his environment, McInnes said. The kidnapping of his brother, Steven, when he, too, was just a boy. Molestation by an uncle who showed young Cary pictures of nude young girls that he could never erase from his mind. The return of Steven after seven years of sexual abuse. Steven's death in a motorcycle accident. The murder of a favorite uncle. A suicide attempt.
Those incidents and more fueled Stayner's mental illness and his break with reality in 1999, she said.
He thought the world was ending, that he was receiving messages from television and others commanding him to "do something that he didn't want to do," McInnes said. And he saw dotted lines on the necks of people around him, shortly before he strangled Sund and Silvina and cut Juli's throat.
Then, McInnes said, he could no longer distinguish right from wrong or comprehend his actions -- the legal test for insanity.
Evidence in the sanity phase of the trial is expected to conclude this week.

I suspect that Stayner will lose the sanity phase also - the jury has already found against him once on the sanity issue and the evidence that he was not able to understand his actions is nonexistent. On the other hand, this evidence is really designed to have an effect on the only phase that matters in this trial, which is the penalty phase.

The Angry Clam continues a loney struggle to remain the last rational person in Berkeley with this post on the appropriate way to commemorate the one-year anniversary of 9/11. What the heck is this stuff with candle-vigils and national days of service? Would that have been an appropriate anniversary commemoration on 12/7/42? Heck no. The only appropriate commemoration of 9/11/01 is to bomb some significant asset of those who were part of or supported that treacherous unprovoked attack on defenseless Americans.

Correction: I am informed by said truculent crustacean that he is no longer matriculating at Berkeley. He has climbed the greasy pole of education and clawed his way into one of America's elite educational institutions - the Harvard of the West - UCLA Law School. [Of course, out here we refer to Harvard as "the UCLA of the East."] 20+ years ago, UCLA was rated as one of the nation's Ten Most Respected Law Schools, a rating which it should have retained unless it went heavy into the Critical Legal studies nonsense.

Military Secrets Update

Tanks being shipped to Mid-east. [Via Megan McArdle.]

Chiropractors are "Doctor." Dentists are "Doctors." Educators are "Doctors." But holders of Juris Doctors are unethical if they call themselves "Doctors" or "J.D.'s." From William Sulik - who is a treasure trove of the obscure - comes this San Diego Bar Association Ethics Opinon that discusses the history of this ethical paradigm. [Thus endeth my bitter guerrilla campaign to acquire the same social status as the Ed.D.'s.]

Here is the link to a convert Catholic blogger writing on religious news and living in Spain -... ibidem ... The internet, isn't it cool.

Media values

Stuart Buck at The Buck Stops Here links to a USA Today article acknowledging that something like 200 people jumped out of the World Trade Center Towers on 9/11. During the last year, there have been hints here and there about this, but I have seen no numbers, and I missed the French filmmakers' documentary the one time it was aired. Last night Hannity & Colmes had Charley Daniels on to play a moving 9/11 song which PBS had refused to let him play on its July 4th show. Connect these dots with the Hillary Clinton piece several posts below - and factor in the incessant "I am an American" spots post 9/11 - and you have to wonder if the media weltanshauing doesn't include the view that Americans mustn't be provoked because we are inherently violent and irrational. What a strange view of a country that has proven both its ability for domestic tolerance - e.g., no synagogue burnings here - and forebearance in foreign affairs - e.g., no reparations required from Afghanistan.

Skakel innocent?

I have absolutely no brief against Michael Skakel. I'll admit that my gut reaction is that he is probably guilty, but I'm willing to chalk that one up to my ethnic dislike for the Kennedy clan. [Basically, as an Irish Catholic, I hate aristocrats - even if they are Irish Catholic aristocrats.] Anyhow, TalkLeft: Skakel: What Went Wrong makes an interesting case for Skakel's innocence. However, missing from TalkLeft's analysis are the many, many instances where Skakel confessed to murdering Moxley. Frankly, unless there was a convincing explanation for Skakel to confess to cold-blooded murder years later to complete strangers, I'm inclined to think that the jury had substantial evidence for its verdict.

Kennewick Man Update

From William Slawski at Delaware Law Office - a Delaware Legal Weblog - who apparently has figured out how to blog and bill - comes the definitive rundown on the Kennewick Man controversy. Kennewick Man, you will recall, was a Holocene era skeleton dating back approximately 8,500 years ago which had skeletal features suggesting that some immigration to North America came out of Europe. [Drawings of the reconstructed find looked like Jean Luc Picard.] Almost immediately various Native American groups began to cite their tribal stories and their religious belief that the skeletons of ancestors should not be disinterred for study. The Army Corps of Engineers obligingly buried the site under tons of concrete.

Now stop there for a moment. Eight thousand years ago. What were your ancestors doing at that time? Who knows? But if you are Caucasian you can bet that they weren’t in Europe. My Celtic ancestors arrived in their portions of Europe only about circa 500 BC, displacing earlier non-Indo-European peoples, and were displaced in turn by Germanic and Latin invaders within the next thousand years. There is approximately zero chance that the random skeleton unearthed in County Galway from the Holocene epoch has any connection to the modern Irish.

Yet, an implicit racism exists when it comes to Native Americans. Somehow Native Americans are immune from the turnover of populations that exists everywhere else, and somehow Native American oral tradition can actually trace back history in North America over eight thousand years, a claim unimaginable in European history outside of silly psuedo-scientific documentaries.

Fortunately for science, the Magistrate ignored the myths and superstitions that apparently ruled the Department of Interior during the 1990's. Mr. Slawski also has the opinion from which these quotes are gleaned.

On the burying of the archeological site:

In April 1998, the Corps buried the discovery site of the remains under approximately two million pounds of rubble and dirt, topped with 3700 willow, dogwood, and cottonwood plantings. COE 5873-74, DOI 2347-51, 2515. The lengthy administrative record that Defendants filed with this court documents only a portion of the process by which the decision to bury the site was made. Nevertheless, that record strongly suggests that the Corps' primary objective in covering the site was to prevent additional remains or artifacts from being discovered, not to "preserve" the site's archaeological value or to remedy a severe erosion control problem as Defendants have represented to this court.

On the notion that modern groups can claim the Kennewick Man as one of their own:

There is no reasoned starting point from which to evaluate whether a
shared group identity exists between the present-day Tribal Claimants and a particular earlier
group.

The Court relied on this pragmatic construction of the statute for the purpose of determining whether a modern group could claim seizin with respect to really, really old bones:

The statutory language also implies that the members must perceive themselves as part of a group and function as such. There must be at least some common elements of language, religion, customs, traditions, morals, arts, cuisine, and other cultural features; a common perspective on the world and the group's role within it; and shared experiences that are part of the group's erception of its history. See, e.g., DOI 3021-24, 7512, 8992, 9031-33, 10309. This commonality distinguishes the group and its members from other groups, and legitimizes the present-day group's authority to represent the interests of deceased members. See, S Rep No 101-473 9, DOI 0581, ("The requirement of continuity between present day Indian tribes and material from historic or prehistoric Indian tribes is intended to ensure that the claimant has a reasonable connection with the materials"). Retention of group identity over time also requires transmission of "that complex whole which includes knowledge, belief, art, morals, law, custom...

The Court quite correctly concluded that no such group identity could be traced from the Holocene epoch:

“In other words, the available evidence is insufficient to either prove or disprove cultural or group continuity dating back 9,000 years.”

The Kennewick Man incident is important both as archeological data, and as an example of the harm that politics - now exclusively politically correct politics - can do to science.

Here is an LA Times article on that controversial statue of the Virgin Mary that appears to have been modeled on Michelle Pfeiffer.

I'm siding with the trooper on this one.

According to the LA Times' article Who You Calling 'Hon'? the traditional greeting in Baltimore is to call people "Hon," which sparked this law enforcement incident.

It is now at issue in a lawsuit filed against the Maryland State Police by a suburban Baltimore computer systems analyst who claims that a female state trooper went ballistic, arresting and mistreating him, after he called her "Hon" during an August 1999 traffic stop. When word of the lawsuit surfaced this summer, the "hon" case became a sensation on television news and radio talk shows.

I might consider going "ballistic" next time a bank clerk or phone marketer calls me by my first name.

Great Moments in Media Bias

Media Research Center CyberAlert shares this John Stossel report:

A holiday weekend video treat: How cable music channel VH1 turned booing of Senator Hillary Clinton into cheering.
Senator Clinton was booed when she walked on stage last October at a rock concert in Madison Square Garden to benefit 9/11 victims. It was shown live by VH1 but, as ABC's John Stossel illustrated in a July 20/20 special on media distortions, when the Viacom-owned cable channel replayed it sound technicians replaced the booing with cheering and applause. And that version is the permanent record VH1 put onto its DVD of the event.

I'm certain that VH1 would explain that they were intending to eliminate rancorous political partisanship from an event that should have been uniting and not divisive. How come, then, political unity is never a virture when it involves a conservative politician or cause, at which point we celebrate the strength of our country in its tolerance of disunity?