http://www.nytimes.com/2007/06/14/us/14pants.html?_r=1&oref=slogin
The lawsuit for the $64 million pair of pants brings to mind a question: what do we do about frivolous lawsuits? Keep in mind, even after the Korean couple wins this - and it is certain they will win - they will have to pay attorney fees to the tune of $200+ per hour. Sometimes, in order to avoid such fees and the possibility of large losses, defendants will settle potentially large suits, regardless of their frivolousness.
So is there a judicial remedy? I suggest a suit for frivolous lawsuits. These would be countersuits, which defendants can file at the same time of the original suit. In effect, this would be a settlement tool - the risk of financial loss now deters people from pursuing law suits when the law is heavily against them.
it's an open question why this suit wasn't dismissed in summary judgment.
Wednesday, June 13, 2007
Tuesday, June 5, 2007
To be good or to be clutch?
This is a Machiavelli "to be loved or to be feared" question - if you had to pick, would you want a player that was good? or one that came through for you in the critical moments? And is there really as big a distinction as some people make it out to be?
On the side of "good" are your Dirk Nowitzcki's, A-Rod's, and pre-2007 Peyton Manning: players that at one point or another lead the league in kiss-ass stats but, at the critical moments, couldn't take their game to the next level. We're not just talking giving out mediocre performances. In Dirk's case, we're talking monumental meltdown to the point where Avery Johnson told him to quit bitching and start leading. A-Rod is self-explainatory here. In Peyton's case, we're talking sideline fits watching his defense which then turn into wild hailmary's. (Keep in mind, even in the 2007 AFC, he had a first quarter meltdown before coming back and winning the game.)
Think, for a second, of one of the now old Bulls-Jazz series where, with the game on the line, Karl Malone went to the line for the game tying free-throws. Pippen goes and whispers in his ear "The Mailman doesn't deliver on Sundays." And the mailman misses. Twice. (People seem to forget that - however great MJ was - the Jazz were ALWAYS close in their series; but MJ always pulled it off in the decision time.)
Andy Roddick, Phil Mickelson, every sport has them. Good, Great players. Who just don't finish the deals.
On the side of "clutch" are the players that do their best work when the game/series/season is on the line. LeBron's recent playoff performance is one, with 41 points in a game where EVERY piston was guarding him. MJ, Kobe, Brady and Vinateri - players that are already good, but that in the key moments of a game go into overdrive mode. These are players that know that every person on the other team is gunning for him, and yet still puts up the big numbers, because they LOVE the spotlight.
i bring up this point because i've noticed that this is probably a distinction that carries to non-athletic pursuits. i tutor the LSATs, and one frequent complaint i get from students is test-time anxiety. otherwise good students who, when the time begins to tick, start panicking, start making mistakes. other students, on the other hand, actually do better on test day - they focus more, read more carefully, their brain works on overdrive, and suddenly their score jumps a few more points from every diag that they take.
now, here's the dilemma: it might sound like you'd always want "clutch" players, since they perform when it counts. but clutch players can also start taking their "clutch-ness" for granted. see Pistons or the Heat. In the Piston's case, they seem in playoff series to always win the first few games, let down their guard, and end up having to fight their way back. In the Heat's, they don't even bother showing up for the regular season. It works, but it also risks embarrassing failures to launch.
with students, a clutch student just assumes that he'll do better on the actual test, so doesn't bother studying up for the test.
so which is better?
On the side of "good" are your Dirk Nowitzcki's, A-Rod's, and pre-2007 Peyton Manning: players that at one point or another lead the league in kiss-ass stats but, at the critical moments, couldn't take their game to the next level. We're not just talking giving out mediocre performances. In Dirk's case, we're talking monumental meltdown to the point where Avery Johnson told him to quit bitching and start leading. A-Rod is self-explainatory here. In Peyton's case, we're talking sideline fits watching his defense which then turn into wild hailmary's. (Keep in mind, even in the 2007 AFC, he had a first quarter meltdown before coming back and winning the game.)
Think, for a second, of one of the now old Bulls-Jazz series where, with the game on the line, Karl Malone went to the line for the game tying free-throws. Pippen goes and whispers in his ear "The Mailman doesn't deliver on Sundays." And the mailman misses. Twice. (People seem to forget that - however great MJ was - the Jazz were ALWAYS close in their series; but MJ always pulled it off in the decision time.)
Andy Roddick, Phil Mickelson, every sport has them. Good, Great players. Who just don't finish the deals.
On the side of "clutch" are the players that do their best work when the game/series/season is on the line. LeBron's recent playoff performance is one, with 41 points in a game where EVERY piston was guarding him. MJ, Kobe, Brady and Vinateri - players that are already good, but that in the key moments of a game go into overdrive mode. These are players that know that every person on the other team is gunning for him, and yet still puts up the big numbers, because they LOVE the spotlight.
i bring up this point because i've noticed that this is probably a distinction that carries to non-athletic pursuits. i tutor the LSATs, and one frequent complaint i get from students is test-time anxiety. otherwise good students who, when the time begins to tick, start panicking, start making mistakes. other students, on the other hand, actually do better on test day - they focus more, read more carefully, their brain works on overdrive, and suddenly their score jumps a few more points from every diag that they take.
now, here's the dilemma: it might sound like you'd always want "clutch" players, since they perform when it counts. but clutch players can also start taking their "clutch-ness" for granted. see Pistons or the Heat. In the Piston's case, they seem in playoff series to always win the first few games, let down their guard, and end up having to fight their way back. In the Heat's, they don't even bother showing up for the regular season. It works, but it also risks embarrassing failures to launch.
with students, a clutch student just assumes that he'll do better on the actual test, so doesn't bother studying up for the test.
so which is better?
Monday, April 30, 2007
Law: commerce clause
what is "commerce"? This is the question plaguing the Supreme Ct's recent Lopez and Morrison decisions, which restricted Federal commerce power to areas which were commercial.
My intuition comes from economics, based on the idea of externalities. The founders drafted the commerce clause out of the concern that states would discriminate against one another, or pass bills in ways that passed the harmful effects of in-state actions to other states (trash dumping), or would be unable to regulate areas that spanned multiple states.
If we take that as the intuition, we may understand the phrase "commerce" to encompass areas that are especially suceptible to these interstate externalities. What is commerce, after all, but the movement of goods from point A to B. Once commodified, goods move freely, and it is pointless to say that this pair of shoes is produced for "in-state" consumption and the other is for "export" out of state. For fungible goods, at least, there is an intuition that there is a fundamental connection w/ interstate commerce.
Yet not all commerce is commerce. Consider four categories:
1. Fungible goods (commodities)
2. Unique goods (e.g. artwork)
3. Interstate services (e.g. Western Union)
4. Local services (e.g. Mama's pizza)
All four are "commercial", yet intuitively, not all four affect interstate commerce to the same degree - hence the intuition that the activity has to "substantially affect" interstate commerce. 2 & 4 seem inheriently local, to the point that it becomes questionable why the gov't has to regulate it. Yet that judgment line has been virtually obliterated thanks to the Wickard aggregation principle. Taken alone, Mama's pizza has no effect; taken "as a class", all the Mama's pizzas in the nation make a pretty big dent. Perhaps in the dough market.
So without the "substantial affect" test as a viable line, the burden shifts onto defining "commerce". Here, there is some intuition that, as an abstraction, most commerce - most exchanges in goods and services in today's internet, globalized marketplace - will have externality issues and require federal legislation.
Yet if "commerce" is only a shorthand for denoting a category that has externalities, there will inevitably be other activities - arguably non-commercial - that will nonetheless have interstate externalities and perhaps require Federal legislation. Should federal legislation touch these? Marijuana. Adoptions.
Is the solution to expand "commerce" broadly - anything that conceivably touches money? Or, as I believe, is the solution to make explicit the purpose of the commerce clause - the elimination of externalities - and regulation ONLY when those externalities are present, and to demand a stricter accountability for finding them.
Maybe it's saying the same thing as the doctrine already is. Just more honestly.
My intuition comes from economics, based on the idea of externalities. The founders drafted the commerce clause out of the concern that states would discriminate against one another, or pass bills in ways that passed the harmful effects of in-state actions to other states (trash dumping), or would be unable to regulate areas that spanned multiple states.
If we take that as the intuition, we may understand the phrase "commerce" to encompass areas that are especially suceptible to these interstate externalities. What is commerce, after all, but the movement of goods from point A to B. Once commodified, goods move freely, and it is pointless to say that this pair of shoes is produced for "in-state" consumption and the other is for "export" out of state. For fungible goods, at least, there is an intuition that there is a fundamental connection w/ interstate commerce.
Yet not all commerce is commerce. Consider four categories:
1. Fungible goods (commodities)
2. Unique goods (e.g. artwork)
3. Interstate services (e.g. Western Union)
4. Local services (e.g. Mama's pizza)
All four are "commercial", yet intuitively, not all four affect interstate commerce to the same degree - hence the intuition that the activity has to "substantially affect" interstate commerce. 2 & 4 seem inheriently local, to the point that it becomes questionable why the gov't has to regulate it. Yet that judgment line has been virtually obliterated thanks to the Wickard aggregation principle. Taken alone, Mama's pizza has no effect; taken "as a class", all the Mama's pizzas in the nation make a pretty big dent. Perhaps in the dough market.
So without the "substantial affect" test as a viable line, the burden shifts onto defining "commerce". Here, there is some intuition that, as an abstraction, most commerce - most exchanges in goods and services in today's internet, globalized marketplace - will have externality issues and require federal legislation.
Yet if "commerce" is only a shorthand for denoting a category that has externalities, there will inevitably be other activities - arguably non-commercial - that will nonetheless have interstate externalities and perhaps require Federal legislation. Should federal legislation touch these? Marijuana. Adoptions.
Is the solution to expand "commerce" broadly - anything that conceivably touches money? Or, as I believe, is the solution to make explicit the purpose of the commerce clause - the elimination of externalities - and regulation ONLY when those externalities are present, and to demand a stricter accountability for finding them.
Maybe it's saying the same thing as the doctrine already is. Just more honestly.
Thursday, April 26, 2007
Politics: Education in China and US
http://news.bbc.co.uk/2/hi/uk_news/education/6589301.stm
Interesting BBC article about how math education in China - as measured by difficulty of exam questions - outstrips anything in the UK, and by implication, in the west. Shocking that the UK college diagnostic test is testing the pythagorian theorem, i.e. what i learned in middle school.
The argument against the type of testing regime in China is that it kills creativity and creates advanced test-takers rather than people with the "creative problem solving" abilities that Western education systems are supposed to engender. Critics argue that the fact that the US still leads in technical innovation reflects the superiority of its "creativity-first" model over a more mechanized approach.
For two reasons, this argument is flawed:
1) The US creativity-first model works for only the wealthiest schools. Allowing student creativity requires a teacher-student ratio of around 20:1 or less. Any more and the "creativity" is overshadowed by the necessity of classroom management. So if the model works at all, it only does so for a small section of schools. For everyone else, this model creates a diversion from fundamental principles and an inability to hold failing schools accountable. General chaos ensues as "inspired" school teachers teach the class to build popcicle-stick bridges, without first teaching them how to do fractions.
And if you look closer, the best schools in the US don't even emphasize "creativity" that much. They emphasize honors classes, AP sciences classes, SAT prep -> all the things that are, guess what, oriented towards the fundamentals.
2) As people who've ever watched a NBA game realizes - fundamentals always win over glamor. Time after time, it's the team that blocks out and that makes free throws that wins over the team that shoots 50 3-pointers or attempts alley-oops every other possession. But there isn't actually a tension: the best teams are the ones who have the fundamentals and then build off that to create pretty-looking plays.
Same in education. If you look underneath the US creativity, you'll realize that it's been fueled by those Chinese and Indian engineers who got their fundamentals first and then learned how to improvise. They get a good solid primary and secondary education in their home countries, and then come to the West - where there is the resources - to do tertiary training. These are the people getting pH.D.'s nowadays and - increasingly - the people publishing in the top journals.
So emphasize creativity, at your risk, but don't let it be an excuse for failing test scores.
Interesting BBC article about how math education in China - as measured by difficulty of exam questions - outstrips anything in the UK, and by implication, in the west. Shocking that the UK college diagnostic test is testing the pythagorian theorem, i.e. what i learned in middle school.
The argument against the type of testing regime in China is that it kills creativity and creates advanced test-takers rather than people with the "creative problem solving" abilities that Western education systems are supposed to engender. Critics argue that the fact that the US still leads in technical innovation reflects the superiority of its "creativity-first" model over a more mechanized approach.
For two reasons, this argument is flawed:
1) The US creativity-first model works for only the wealthiest schools. Allowing student creativity requires a teacher-student ratio of around 20:1 or less. Any more and the "creativity" is overshadowed by the necessity of classroom management. So if the model works at all, it only does so for a small section of schools. For everyone else, this model creates a diversion from fundamental principles and an inability to hold failing schools accountable. General chaos ensues as "inspired" school teachers teach the class to build popcicle-stick bridges, without first teaching them how to do fractions.
And if you look closer, the best schools in the US don't even emphasize "creativity" that much. They emphasize honors classes, AP sciences classes, SAT prep -> all the things that are, guess what, oriented towards the fundamentals.
2) As people who've ever watched a NBA game realizes - fundamentals always win over glamor. Time after time, it's the team that blocks out and that makes free throws that wins over the team that shoots 50 3-pointers or attempts alley-oops every other possession. But there isn't actually a tension: the best teams are the ones who have the fundamentals and then build off that to create pretty-looking plays.
Same in education. If you look underneath the US creativity, you'll realize that it's been fueled by those Chinese and Indian engineers who got their fundamentals first and then learned how to improvise. They get a good solid primary and secondary education in their home countries, and then come to the West - where there is the resources - to do tertiary training. These are the people getting pH.D.'s nowadays and - increasingly - the people publishing in the top journals.
So emphasize creativity, at your risk, but don't let it be an excuse for failing test scores.
Sunday, April 22, 2007
Politics: Va Tech
32 + 1. = 33.
every few days, somewhere in the middle east, some young man, ranging from 16 to 30 in age, straps a bomb on his chest, in his car, in a bag, and walks into a crowd. boom.
we in america watch in the distance, mildly saddened, but tempered by distance. by the certainty that it is baghdad, kabul, jerusalem. then madrid, london, new york.
then finally it becomes irrational. finally there is no more politics. no more agenda. no more cause. just a maniacally depressed young man with two guns and a desire to end lives.
and this we don't understand.
is it fair to call Cho a martyr? no, not to us. just as suicide bombers aren't martyrs to us. but to some other alienated kid out there, someone watching the news and receiving the tapes on a different frequency, who's hearing it in the suburban american version of jihad-dom, there is the martyr's message: hedonism, vodka, sex, U.S.A.
truth is: we don't understand suicide bombers. and, after all the forensics is done, we won't understand suicide shooters. we'll just have to accept that for some, there is a sense of alienation so strong that it must be resisted against by any means necessary. this is durkeimian anomie, the fit of not fitting, a collective subculture of people who hate culture. counter-culture with guns instead of guitars.
he's silent, but he's not alone. there's others out there. and that. that is frightening.
every few days, somewhere in the middle east, some young man, ranging from 16 to 30 in age, straps a bomb on his chest, in his car, in a bag, and walks into a crowd. boom.
we in america watch in the distance, mildly saddened, but tempered by distance. by the certainty that it is baghdad, kabul, jerusalem. then madrid, london, new york.
then finally it becomes irrational. finally there is no more politics. no more agenda. no more cause. just a maniacally depressed young man with two guns and a desire to end lives.
and this we don't understand.
is it fair to call Cho a martyr? no, not to us. just as suicide bombers aren't martyrs to us. but to some other alienated kid out there, someone watching the news and receiving the tapes on a different frequency, who's hearing it in the suburban american version of jihad-dom, there is the martyr's message: hedonism, vodka, sex, U.S.A.
truth is: we don't understand suicide bombers. and, after all the forensics is done, we won't understand suicide shooters. we'll just have to accept that for some, there is a sense of alienation so strong that it must be resisted against by any means necessary. this is durkeimian anomie, the fit of not fitting, a collective subculture of people who hate culture. counter-culture with guns instead of guitars.
he's silent, but he's not alone. there's others out there. and that. that is frightening.
Friday, April 6, 2007
Why I hate out-of-towners
So I never stopped to think about why we New Yorkers are perceived to be rude until today:
I was riding the elevator going up from my building's basement with my basket of laundry. The elevator stops at the first floor, door opens, and a group of four upper middle-aged people step in. Three women, one man.
Door closes.
One of the women looks at me - in casual shirt and shorts - and at my basket of laundry, and says, "Columbia University student doing his laundry."
Now, I'm not sure who the comment was directed towards, and I'm really annoyed (it's a dreary day out anyways), so I retort, "Is this some kind of museum tour?"
To which she answers, "Yes, we're visiting a friend of ours who lives in this building."
Elevator keeps going up. Stops at my floor, thank god, and I get out to leave. "Good luck in college," she says. Now i'm really annoyed. "This is actually a grad school dorm," I say, and leave.
Small episode, but it shows the difference between New Yorkers and everyone else. New Yorkers, getting on an elevator, know to get in, look to the front, and shut up. Now, if there's something really noteworthy - a cute dog, a cute girl - you may have permission to invade the other person's space and start a conversation. If it's a cute dog, the person's asking for it. Same w/ cute girls. And maybe, if there's a MASSIVE rainstorm outside and the person getting in looks drenched, you are allowed to express sympathy. This is good New Yorker manners.
BUT, if there's really NOTHING to build a conversation out of, and you're in an elevator for all of 30 seconds, you shut up and just watch the dials.
What you do not do is invade other people's privacy by random observations. What you REALLY do not do is remark about other people in the elevator to the friends you came in with. We new yorkers like conversation. but we like interesting conversation. we like meaningful conversation. we do not like observations about us that state the perfectly obvious just so you don't have to listen to the sound of the elevator gears for a few seconds.
and what we really don't like is to be regarded as museum objects. Do you ever see us going to Omaha and going "Midwestern farmer riding his tractor down main street?" NO. We keep those thoughts to ourselves. Yet you tourists come, and you feel it necessary to put us into some sort observational box. "Oh look, mommy, there's a Columbia University student... with a Barnard girl... oh god, what're they doing with that cucumber ???" Just shut up and let it go. It's new york. it happens.
I was riding the elevator going up from my building's basement with my basket of laundry. The elevator stops at the first floor, door opens, and a group of four upper middle-aged people step in. Three women, one man.
Door closes.
One of the women looks at me - in casual shirt and shorts - and at my basket of laundry, and says, "Columbia University student doing his laundry."
Now, I'm not sure who the comment was directed towards, and I'm really annoyed (it's a dreary day out anyways), so I retort, "Is this some kind of museum tour?"
To which she answers, "Yes, we're visiting a friend of ours who lives in this building."
Elevator keeps going up. Stops at my floor, thank god, and I get out to leave. "Good luck in college," she says. Now i'm really annoyed. "This is actually a grad school dorm," I say, and leave.
Small episode, but it shows the difference between New Yorkers and everyone else. New Yorkers, getting on an elevator, know to get in, look to the front, and shut up. Now, if there's something really noteworthy - a cute dog, a cute girl - you may have permission to invade the other person's space and start a conversation. If it's a cute dog, the person's asking for it. Same w/ cute girls. And maybe, if there's a MASSIVE rainstorm outside and the person getting in looks drenched, you are allowed to express sympathy. This is good New Yorker manners.
BUT, if there's really NOTHING to build a conversation out of, and you're in an elevator for all of 30 seconds, you shut up and just watch the dials.
What you do not do is invade other people's privacy by random observations. What you REALLY do not do is remark about other people in the elevator to the friends you came in with. We new yorkers like conversation. but we like interesting conversation. we like meaningful conversation. we do not like observations about us that state the perfectly obvious just so you don't have to listen to the sound of the elevator gears for a few seconds.
and what we really don't like is to be regarded as museum objects. Do you ever see us going to Omaha and going "Midwestern farmer riding his tractor down main street?" NO. We keep those thoughts to ourselves. Yet you tourists come, and you feel it necessary to put us into some sort observational box. "Oh look, mommy, there's a Columbia University student... with a Barnard girl... oh god, what're they doing with that cucumber ???" Just shut up and let it go. It's new york. it happens.
Thursday, March 1, 2007
Law: NYC bans N-word
http://news.bbc.co.uk/2/hi/americas/6406625.stm
Can I say just how STUPID I think a law banning the N-word is, even if it has no legal effect? Not only is the Constitutional question looming, this is the work of a ridiculous generational conflict between a prior generation that understood the word as a perjorative and a new generation that sees it as self-referential. Parents can tell their children not to call each other N-----; the government should not have to. The next NYC city ordinances will, if this trend is followed, be "pull up your pants," "wear hats forwards," and "do not rap using any profanity." the ability of people to change words and give them new meaning is precisely cultural evolution at its best: the N-word is being "salvaged," in a way, from its traditional meaning. And 50 year old city councilors should leave it alone.
Can I say just how STUPID I think a law banning the N-word is, even if it has no legal effect? Not only is the Constitutional question looming, this is the work of a ridiculous generational conflict between a prior generation that understood the word as a perjorative and a new generation that sees it as self-referential. Parents can tell their children not to call each other N-----; the government should not have to. The next NYC city ordinances will, if this trend is followed, be "pull up your pants," "wear hats forwards," and "do not rap using any profanity." the ability of people to change words and give them new meaning is precisely cultural evolution at its best: the N-word is being "salvaged," in a way, from its traditional meaning. And 50 year old city councilors should leave it alone.
Wednesday, February 28, 2007
Law: on the German cannibal
It's argued that the government somehow has an interest in regulating you from activities which you otherwise consent to doing: suicide, not wearing a seatbelt, doing drugs or, having someone else chop you up and store you in a freezer. These are activities which primarily only affect your own person, and, as such, gov't regulation seems like an intrusion into personal autonomy.
Under what principle can the government do this?
One, is it because some of these activities have negative social externalities? That is, they affect other people in their indirect consequences? E.g. not wearing a seatbelt results in more serious injuries and thus more burden on the public health system.
Yet this argument fails insofar as you would then have to weigh the strength of those externalities against the individual's autonomy. For seatbelts, if the person pays for his own health insurance, perhaps the externalities are minimal. Suicide, too, may not be that bad if you had no family to get depressed over you.
Two, alternately, is it because policy makers believe that individuals have limited rationality, and do not know what is in their best interests? Certainly the German cannibalism case, or suicides in general, apply here. But so does doing drugs or not wearing seatbelts. Government here is being paternalistic, perhaps in a good way, in saying that somethings, while pleasurable in the short run, are bad in the long run. And certainly cognitive psychology shows that people are extremely bad at making the "pleasure now versus pain later" cost-benefit calculations.
Or finally, is it just because the gov't, as some sort of guardian of societal mores, finds some activities so morally reprehensible that it feels itself as having a duty to prevent them?
It seems to me a lot of the law on pornography turns on which one of these three explainations you take: Is it bad for society? Bad for the individual consumer? Or just bad in general?
Under what principle can the government do this?
One, is it because some of these activities have negative social externalities? That is, they affect other people in their indirect consequences? E.g. not wearing a seatbelt results in more serious injuries and thus more burden on the public health system.
Yet this argument fails insofar as you would then have to weigh the strength of those externalities against the individual's autonomy. For seatbelts, if the person pays for his own health insurance, perhaps the externalities are minimal. Suicide, too, may not be that bad if you had no family to get depressed over you.
Two, alternately, is it because policy makers believe that individuals have limited rationality, and do not know what is in their best interests? Certainly the German cannibalism case, or suicides in general, apply here. But so does doing drugs or not wearing seatbelts. Government here is being paternalistic, perhaps in a good way, in saying that somethings, while pleasurable in the short run, are bad in the long run. And certainly cognitive psychology shows that people are extremely bad at making the "pleasure now versus pain later" cost-benefit calculations.
Or finally, is it just because the gov't, as some sort of guardian of societal mores, finds some activities so morally reprehensible that it feels itself as having a duty to prevent them?
It seems to me a lot of the law on pornography turns on which one of these three explainations you take: Is it bad for society? Bad for the individual consumer? Or just bad in general?
Thursday, February 22, 2007
Law: judicial review of legislative spending
given the problem of earmarks and pork-spending, there are two solutions possible:
1. executive check.
2. judicial check.
the solution of an executive check - in the form of a line-item veto - has been tried and struck down as unconstitutional. i wonder now if there is a possibility of using a judicial check.
this might work in the same way as the non-delegation doctrine. delegation occurs when the legislature gives some law making power to an administrative agency. the court articulated a principle that the law had to have an "intelligible principle" governing it, or be ruled impermissibly vague.
we might try something like this with rider bills , which are spending items attached to unrelated items of legislation. the court might try to articulate a standard that any item that has no rational relationship to the stated purposes of the bill be struck down as impermissible.
no idea where the court might find this power... and huge separation of power constitutional issues.
1. executive check.
2. judicial check.
the solution of an executive check - in the form of a line-item veto - has been tried and struck down as unconstitutional. i wonder now if there is a possibility of using a judicial check.
this might work in the same way as the non-delegation doctrine. delegation occurs when the legislature gives some law making power to an administrative agency. the court articulated a principle that the law had to have an "intelligible principle" governing it, or be ruled impermissibly vague.
we might try something like this with rider bills , which are spending items attached to unrelated items of legislation. the court might try to articulate a standard that any item that has no rational relationship to the stated purposes of the bill be struck down as impermissible.
no idea where the court might find this power... and huge separation of power constitutional issues.
Law: a tax on free speech?
a thought came up as a combination of the con law and the regulation classes that i'm taking: wouldn't it be cool to replace the MPAA's movie rating system with a simple tax on movie violence and obscenity and other undesirable behavior? for instance, smoking in movies and TV encourages teens to smoke in emulation.
for the argument to work, we need to assume that negative TV messages have social externalities. that is, while they may increase a film's sales, they adversely affect public morals.
the current system, to me, has a serious incentive problem. there are four grades of films: G, PG, PG-13, and R. (we'll leave aside M). each of those four ratings has a fair amount of room for maneuver. the rules are fairly reasonable, but by only having four categories, there is inherently a problem that most movie producers will not adjust the content of the films unless the film falls close to the boundary between two ratings.
For instance, if a film uses the F-word 1-3 times, it gets a PG-13. So there is an incentive to lower the usage of the word if there's only 4 instances of it. But, if the character says it more than 3 times, then there is no incentive to cut back. the character can say it 10 times, 20 times, and still keep the same rating. (although the reviewer's discretion may jump in at a certain point).
a similar problem exists that violence usually gets a free pass, whereas sex is heavily censored. and because it goes on behind the scenes, the public doesn't have a good idea of the relative weights of these screen acts.
in contrast, a tax system to obscenity would make film makers internalize the costs of obscenity (with proceeds going to, say, PBS). a filmmaker would have to make a cost-benefit decision on whether each instance of nudity or of violence is worth - artistically speaking - the tax penalities he would have to make for it.
So a system where every instance of the F-word is taxed at (arbitrarily speaking) 0.5% of revenue, filmmakers would limit that word only to those instances where it adds to the storyline. extraneous smoking, sex, and shooting scenes would be taken out, reducing the overall amount of violence while giving the artist the maximum flexibility to preserve the storyline.
is this censorship? well, i want to draw a distinction between movies as commodity and movies as expression. no, it's not a clear line. but one can certainly argue that nowadays, movies are as much a cultural product (along the thinking of the Frankfurt School), made for mass consumption, as they are mediums for expression. to the extent that they exist to make their producers rich, there is not a strong justification to protect them absolutely. and to the extent that the tax system can deter egregious behavior, perhaps it may forestall legislative backlashes that are more restrictive, just as what was proposed in the aftermath of the columbine shootings.
for the argument to work, we need to assume that negative TV messages have social externalities. that is, while they may increase a film's sales, they adversely affect public morals.
the current system, to me, has a serious incentive problem. there are four grades of films: G, PG, PG-13, and R. (we'll leave aside M). each of those four ratings has a fair amount of room for maneuver. the rules are fairly reasonable, but by only having four categories, there is inherently a problem that most movie producers will not adjust the content of the films unless the film falls close to the boundary between two ratings.
For instance, if a film uses the F-word 1-3 times, it gets a PG-13. So there is an incentive to lower the usage of the word if there's only 4 instances of it. But, if the character says it more than 3 times, then there is no incentive to cut back. the character can say it 10 times, 20 times, and still keep the same rating. (although the reviewer's discretion may jump in at a certain point).
a similar problem exists that violence usually gets a free pass, whereas sex is heavily censored. and because it goes on behind the scenes, the public doesn't have a good idea of the relative weights of these screen acts.
in contrast, a tax system to obscenity would make film makers internalize the costs of obscenity (with proceeds going to, say, PBS). a filmmaker would have to make a cost-benefit decision on whether each instance of nudity or of violence is worth - artistically speaking - the tax penalities he would have to make for it.
So a system where every instance of the F-word is taxed at (arbitrarily speaking) 0.5% of revenue, filmmakers would limit that word only to those instances where it adds to the storyline. extraneous smoking, sex, and shooting scenes would be taken out, reducing the overall amount of violence while giving the artist the maximum flexibility to preserve the storyline.
is this censorship? well, i want to draw a distinction between movies as commodity and movies as expression. no, it's not a clear line. but one can certainly argue that nowadays, movies are as much a cultural product (along the thinking of the Frankfurt School), made for mass consumption, as they are mediums for expression. to the extent that they exist to make their producers rich, there is not a strong justification to protect them absolutely. and to the extent that the tax system can deter egregious behavior, perhaps it may forestall legislative backlashes that are more restrictive, just as what was proposed in the aftermath of the columbine shootings.
Thursday, February 1, 2007
Politics: Obama
Biden on Obama: “I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy,” he said. “I mean, that’s a storybook, man.”
Offensive? Not to Obama. Probably to every other Black presidential candidate. But guess what, Biden is just saying what every single political observer is thinking: "Yes, Obama is black, and no, Obama is not that Black."
First, Obama is Black. Duh. He's half white, but in our one-drop culture, half is enough for Blackness unless you pull a Tiger Woods and start finding some native american in that mix.
Second, Obama is not that Black. No, not because his father's African, or because he grew up outside the US, or any of that. He's not that Black because all the usual ways of attacking a Black candidate: as outside the mainstream, as poor and inchoate and rabble-rousing, don't apply here.
Obama, in fact, is pretty invulnerable to those attacks, for one reason and one reason alone. I'll spell it: H-L-S. Obama is part of what I see as a new generation of minority leaders, many of whom are my classmates. These leaders are products of the opening of the American education system to minorities.
They've gone to top schools. They've had professional careers. Most engage in activism as a matter of personal conviction, but most also have other career objectives, other goals. Obama, for instance, was a U Chicago law professor before becoming an activist. Go ahead, pigeonhole that. It's hard to call them radicals, or rabble, or any of the things that lie behind words like "articulate and bright and clean."
So instead, they'll call him "Black, but not that Black"
Offensive? Not to Obama. Probably to every other Black presidential candidate. But guess what, Biden is just saying what every single political observer is thinking: "Yes, Obama is black, and no, Obama is not that Black."
First, Obama is Black. Duh. He's half white, but in our one-drop culture, half is enough for Blackness unless you pull a Tiger Woods and start finding some native american in that mix.
Second, Obama is not that Black. No, not because his father's African, or because he grew up outside the US, or any of that. He's not that Black because all the usual ways of attacking a Black candidate: as outside the mainstream, as poor and inchoate and rabble-rousing, don't apply here.
Obama, in fact, is pretty invulnerable to those attacks, for one reason and one reason alone. I'll spell it: H-L-S. Obama is part of what I see as a new generation of minority leaders, many of whom are my classmates. These leaders are products of the opening of the American education system to minorities.
They've gone to top schools. They've had professional careers. Most engage in activism as a matter of personal conviction, but most also have other career objectives, other goals. Obama, for instance, was a U Chicago law professor before becoming an activist. Go ahead, pigeonhole that. It's hard to call them radicals, or rabble, or any of the things that lie behind words like "articulate and bright and clean."
So instead, they'll call him "Black, but not that Black"
Monday, January 29, 2007
Social: Law student conversations
Just came back from coffee/tea with friend from USC (millenniums of cultural evolution and human beings end up socializing pretty much the same way as the ancient romans must have, minus the steamy bathhouses) and we commiserated at the lack of a non-legally-oriented social scene at our respective lawschools. he complained about how his classmates at so cal are obsessed w/ everything law; i related how every conversation i have nowadays w/ law school friends seems to live and die by "how's your job search" and "how do you like your classes". all of which made me wonder, have we become more boring? are we less interesting people?
and then, we proceeded to talk about school... and post-graduation... and our law school friends... and our professors... and more about our schools...
our lives have become a horror movie: you run and run and run but you know, soon enough, you gonna get stabbed anyways.
and then, we proceeded to talk about school... and post-graduation... and our law school friends... and our professors... and more about our schools...
our lives have become a horror movie: you run and run and run but you know, soon enough, you gonna get stabbed anyways.
Saturday, January 27, 2007
Movie: Rocky Balboa
"Life is hard and it will knock you down, but it is not about how hard you get knocked down, its about how far you keep going forward after you get knocked down that matters."
take your hero, and beat him up before he ever gets in the ring. beat him up with a bad kid, with a dingy restaurant, with a grimy city. and beat him up some more by making him take pity in a bartending mom who more wal-mart than victoria's secret. and then kick him by making him the object of ridicule, up to the opening moments of the fight.
then watch him stand up. and stand up. and stand up.
everyone who leaves the theaters will remember that line. it's the hook to the tune, the part you're supposed to hum to yourself.
but the other part of it, the part that's in the background, is that bit outside the ring. that swath of the movie that says, this is where they put the old horses out to die. to tell their fight stories over and over again and pose with teenagers for their digi-cam parents. the part that existentially questions whether there was any real point to the fight when, at the very end of it, rocky loses and the only validation he's won is that he's remained standing for 10 rounds of beatings. the part that asks what was all that "stuff" he had to get out of himself inside the ring and why he couldn't be doing it in a shrink's chair instead of a boxing ring.
cause, make it clear, end of that fight, rocky goes back to that restaurant. with, as mason dixon's manager says, "some more stories to tell." you take every single sports movie ever told, and you stay and right before the credits, they roll up and go "...and he ended up as a successful car salesman." and you wonder, this was it? this was what you get for that last minute shot? that last touchdown? that last punch? this? an eternity reliving that moment while peddling ford tauruses to suburban soccer moms?
that's the crisis rocky the movie can't resolve. that's the parallel with his kid, the i-banker groupie that, try as he might, just can't sell as many bonds as his dad can land punches. that hates the shadow but can't figure out who he is away from it.
yes, i'm making the case that silvester stallone, mr. rambo, has made the ultimate post-modern flick. the ultimate film about what do you do with a boxer past his prime? a dog - an ugly dog - past puppy-hood? a city - all working-class philly - past its glory days and reduced to a bunch of tenements where "the bus hasn't come in years". a life without meaning, a city without meaning, mourning the past (personified in the dead wife Adrian) and needing just someone to sock your lights out.
what do you do?
you go to vegas. and hope the lights drown your sorrows.
take your hero, and beat him up before he ever gets in the ring. beat him up with a bad kid, with a dingy restaurant, with a grimy city. and beat him up some more by making him take pity in a bartending mom who more wal-mart than victoria's secret. and then kick him by making him the object of ridicule, up to the opening moments of the fight.
then watch him stand up. and stand up. and stand up.
everyone who leaves the theaters will remember that line. it's the hook to the tune, the part you're supposed to hum to yourself.
but the other part of it, the part that's in the background, is that bit outside the ring. that swath of the movie that says, this is where they put the old horses out to die. to tell their fight stories over and over again and pose with teenagers for their digi-cam parents. the part that existentially questions whether there was any real point to the fight when, at the very end of it, rocky loses and the only validation he's won is that he's remained standing for 10 rounds of beatings. the part that asks what was all that "stuff" he had to get out of himself inside the ring and why he couldn't be doing it in a shrink's chair instead of a boxing ring.
cause, make it clear, end of that fight, rocky goes back to that restaurant. with, as mason dixon's manager says, "some more stories to tell." you take every single sports movie ever told, and you stay and right before the credits, they roll up and go "...and he ended up as a successful car salesman." and you wonder, this was it? this was what you get for that last minute shot? that last touchdown? that last punch? this? an eternity reliving that moment while peddling ford tauruses to suburban soccer moms?
that's the crisis rocky the movie can't resolve. that's the parallel with his kid, the i-banker groupie that, try as he might, just can't sell as many bonds as his dad can land punches. that hates the shadow but can't figure out who he is away from it.
yes, i'm making the case that silvester stallone, mr. rambo, has made the ultimate post-modern flick. the ultimate film about what do you do with a boxer past his prime? a dog - an ugly dog - past puppy-hood? a city - all working-class philly - past its glory days and reduced to a bunch of tenements where "the bus hasn't come in years". a life without meaning, a city without meaning, mourning the past (personified in the dead wife Adrian) and needing just someone to sock your lights out.
what do you do?
you go to vegas. and hope the lights drown your sorrows.
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