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Tuesday, March 21, 2006

media use of passive voice criticized

CNN is running a story under a very typical MSM headline: "Rumsfeld's Iraq-Germany analogy disputed."

It is not news that someone in the world disagrees with public officials. Usually these articles are a total joke, and the disputing parties are fringe special-interest groups or liberal college professors. Besides, if the dissenters really are important enough to merit a story, put them in damn the header.

In this case, the people criticizing Rumsfeld's analogy are Henry Kissinger and Zbigniew Brzezinski. An obviously better headline would be: "Former top officials dispute Rumsfeld's Iraq-Germany analogy." An even better one would be: "Kissinger disputes Rumsfeld's Iraq-Germany analogy."

Of course, such a clear headline might make it more difficult for the article to support its strained implications. Rumsfeld wrote: "Turning our backs on postwar Iraq today would be the modern equivalent of handing postwar Germany back to the Nazis." One might think that the "dispute" involved something substantive, like an argument that turning our backs on postwar Iraq today would be just fine, or at least that handing postwar Germany back to the Nazis would be much worse. But the substance of Kissinger's (and even Brzezinski's) criticism is that there were no post-war Nazis to hand Germany over to. "[T]he opposition was completely crushed," Kissinger says. While this may render Rumsfeld's analogy inelegant, it doesn't even make the analogy invalid, much less undermine the argument. Rumsfeld could just as easily have said, "Turning our backs on postwar Iraq today would be the modern equivalent of ressurecting the Nazis and handing postwar Germany back to them."

Monday, March 20, 2006

unbiased like Spielberg in Munich

Amazon.com has come under fire from pro-choice groups. Apparently when customers searched for "abortion," the search engine would automatically suggest, at the top of the results, "Did you mean adoption?" Cute. Amazon has instructed its engine not to do this any more, but apparently that isn't enough. As the NY Times notes:
Customers, however, are still offered "adoption" as a possibility in the Related Searches line at the top of an "abortion" search results page. But the reverse is not true.
This strikes me as being an unequivocally fair and "neutral" sentence, the very neutrality of which reveals an ideological bias in its writer. Much like Spielberg's evenhandedness in Munich.

Saturday, March 18, 2006

as if the Iditarod wasn't progressive enough already

Despite years of animal-rights activism, the Iditarod Trail Sled Dog Race -- a grueling 1100-mile trek that commemorates the 1925 "race" to bring diptheria serum to the people of Nome -- has perservered and grown in popularity. Now, having already achieved unprecedented gender-equality (women have won the event five times), their big tent is getting even bigger:
NOME, Alaska -- Rachael Scdoris and her Iditarod sled dog team were navigating a treacherous cliff, crisscrossed with switchbacks, when her sled slammed into a thick spruce tree.

"It was the worst run I've ever done," said [Scdoris].

Scdoris managed to recover from the fiasco in the Alaska Range and crossed the Iditarod finish line in the post-midnight chill of the old gold rush town, becoming the first legally blind musher to bring a sled dog team more than 1,100 miles from Anchorage to Nome.

Wednesday, March 15, 2006

sometimes i thank Yale for rejecting me

I don't understand the cult of Jack Balkin. Everyone in the blogosphere seems to be falling over themselves to praise his recent post on the FAIR litigation.

Let me summarize it for you:

1. "Why I joined the litigation":

Obviously responding to arguments that liberal law professors are dishonest and/or out of touch, Balkin says that it's worth it to push pointless half-assed legal arguments when the cause is just, even if they might lead to bad law and bad results in other areas. While so doing, he stresses that he really meant to support an alternative, even more crackpot theory of the case that would allow the Court to overturn Dale and rule for FAIR at the same time.

2. "What the FAIR opinion does":

Balkin sees some silver linings: First, he thinks Roberts has conditioned his opinion on Law Schools remaining breeding grounds of corporate hackery. (Perhaps this is why he thinks bigshot Yale could have won an as-applied challenge). Second, if you squint very hard and tilt your head sideways, you see that FAIR "narrows" Dale, by suggesting that Dale doesn't apply to circumstances that Dale doesn't apply to.

3. "What the FAIR opinion leaves unresolved -- and why the military may not be happy with the result":

Balkin predicts a knock-down drag-out affair over the question of whether Law Schools can really protest against the military recruiters they let on campus. Apparently, if something is so obvious that all eight Justices endorse it without feeling the need to explain themselves, this makes it ripe for litigation.

Monday, March 13, 2006

somewhat shocking follow-up

I was looking into the breakdowns for some of those polls in my post about the new Allen/Romney abortion position below. One of the current polls is this one by Ipsos/Associated Press. This is actually one of the more pro-choice polls, finding that 52% of the respondants believed that abortion should be legal in all or most cases, and only 43% of respondants believed that abortions should be illegal in all or most cases.

But the poll goes on to ask "Regardless of your opinion about abortion, do you think the federal government should decide whether abortion should be legal or not, or should each state government decide?" 46% said that it should be decided by the federal government, and 43% said by the states.

Now, I expected that a majority of those who thought abortion should be illegal would say that it should be decided by the states, and that a majority who thought it should be legal would say that it should be decided by the federal government. But, much to my surprise, the results were almost uniform in both camps.

Abortion should be illegal: 47% Federal government, 43% States
Abortion should be legal: 48% Federal government, 44% States

This means that 66% of respondants either said that abortion should be illegal, or that it should be left to the states (43% + .44 * 52%). Conversely, it means that only 25% of respondants believed both that abortion should be legal AND that the federal government should decide (.46 * 52 %).

If these numbers are an accurate reflection of opinion -- and not just that people have no idea what they're talking about (compare, for example, the large majority of people who disfavor overturning Roe v. Wade) -- the switch to the Romney/Allen position could be a total coup, turning a dog of an issue into a big Republican winner.

Update: Why is that so 66% meaningful? The implicit assumption is that nationalist pro-lifers would support the overturning of Roe regardless. Therefore, the 66% number comes from summing the people who explicitly endorsed the outcome of overturning Roe (the Romney/Allen position) and those for whom overturning Roe would be a step in the right direction. This seems reasonable to me. My concern is that the pro-choice people who endorse federalism here are merely doing so "in theory" rather than "in practice" -- i.e., they think abortion policy should be determined at the state level, so long as that policy is pro-choice (and I don't mean that as a dig - it's a rational position).

national Abortion strategy

George Allen, the current conservative darling for the 2008 Republican nomination, took a somewhat surprising position on Meet the Press this Sunday. He stated that he believes the abortion question should be decided on a state-by-state basis. When pressed as to whether, therefore, he believed it would be okay for a state to allow any abortion at any time during pregnancy, he essentially (with some hemming and hawing) agreed. Similarly, though he disagrees with South Dakota's lack of exceptions for rape/incest or life/health of the mother, he said they should be allowed to set that policy if they choose. So I have two questions:

1) How does he reconcile this position with a national ban on Partial Birth abortion? I think he probably just overstated his case, and really meant to maintain that a few things are so heinous they should be nationally banned, but that everything in the grey-area should be left to the states. Only a handful of conservatives have actually argued that the national government shouldn't be involved in the PBA debate. Does that make them faint-hearted federalists?

2) Does this represent a trend in national Republican abortion strategy? From Reagan to Bush, every Republican presidential nominee has endorsed a national ban on abortion, with some exceptions - enforced by Constitutional amendment, if necessary. This new position -- that it should be left to the states -- was not so surprising when endorsed by Mitt Romney, as a perceived liberal. But with a solid conservative taking the same tack, perhaps this means Republicans are retreating and realizing the efficacy of the middle-ground.

As a side-note, I happen to think that the Romney/Allen position is wise, for a number of reasons:

1) It makes the Democratic position, of abortion-on-demand everywhere, seem extreme and anti-democratic by comparison.

2) It mitigates the political problems of the abortion debate to the Republican party, particularly if the Court seems to be inching closer to overturning Roe. No matter how principled they may be, a lot of pro-choicers in blue-states will simply care less about this issue if they know that the Republican candidate is not trying to outlaw abortion in their back-yard.

3) It synergizes the Republican position with the actual effect of overturning Roe. A majority of the country opposes such a ruling, but this is largely because most people incorrectly believe that this would outlaw abortion everywhere. Even people who endorse significant restrictions on abortion frequently think overturning Roe would be too extreme.

For a great sense of american abortion schizophrenia, read through this summary of polling.

Wednesday, March 08, 2006

per curiam dissents?

Nelson Lund and Craig Lerner have an article on NRO endorsing several Supreme Court reforms, including the elimination of signed opinions:

"Truly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to a lot of muddiness in the Court’s work. We propose that Congress require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. If the justices could be shamed into complying in good faith, we would see fewer self-indulgent separate opinions, less flamboyant majority opinions, and more reason for future justices to treat the resulting precedents respectfully."

This idea clearly goes too far. In a scathing solo dissent, I think I could "name that Justice" in 6 words or less -- and it could encourage both laziness in majority opinions and radicalism in dissents. However, an intriguing possibility would be to make every opinion "unsigned" with respect to the joining justices. In other words, the "Opinion of the Court" would be unsigned, and concurrences/dissents would be signed "J. Scalia and J. Ginsburg, dissenting," etc.

One benefit would be that it might force justices to find actual consensus rather than permitting shabbily reasoned opinions slide because only one Justice is fully accountable. Also it might help resolve problems that arise when one Justice joins a majority opinion "in full" and then writes a concurrence criticizing or limiting it -- thus becoming a "super justice" in the eyes of many law professors. Lastly, it would almost certainly kill the scenario where a Justice writes the "Opinion of the Court" even when they have only a minority for parts of the opinion. If the opinion were unsigned, the Justice would have to write a separate concurrence w/r/t the part that doesn't carry a majority.

solomon proves that law professors are liberal hacks?

Johnathan Adler on Bench Memos has a post about how the Solomon case outcome proves that the cornucopia of prominent law professors who joined the FAIR v. Rumsfeld litigation either "live in ivory towers oblivious to the real world" or "proceeded with the case because they put their political views . . . ahead of their legal judgement." (Of course this assumes that the Court got it right. While I think it did, and the reasoning is very persuasive, this may not be true of every unanimous opinion it issues.)

This gets at the dual-role of law professors. They aren't judges who are required to divorce their political views from their analysis, but they aren't quite politicians either. As teachers, you would expect there is some duty of law professors to teach from their head and not from their heart. But as lawyers, professors are encouraged (if not expected) to get involved in litigation for the causes they believe in -- and we would never criticize a lawyer for taking a dog of a position if it's the best he can do for his side.

I think that either the professors were simply wrong in their analysis of the law (though their political prejudices may have clouded their reasoning), or they were acting appropriately in their roles as advocates. If, however, they were to teach the positions they took for political reasons, while understanding their falsity, it would be most pernicious.

Tuesday, March 07, 2006

yes, two liberalish oscar-related posts in a row

I would like to respond briefly to the Roger Ebert argument that "Crash was just the better picture." Note that he didn't say "the Academy, as a group, just preferred this film." If that were the case, it would be begging the question, as I want to know why the Academy, as a group, went for the less-credentialed film. Any individual may hold an opinion as to the relative quality of two films with near-impunity, but a group as large and diverse as the Academy does not take positions on whimsy -- there is causation. As many filmgoers deny aesthetic truth, I think Ebert's position raises some very interesting philosophical questions.

He seems to be suggesting that 1) there IS an aesthetic truth-of-the-matter, 2) that Crash was the better film, and 3) that this was causally related to it winning the Academy Award. Leaving 1) and 3) aside (especially 3, which seems almost ludicrous looking at the Academy's history), let's focus for a second on 2: If there is objective truth about movie quality, how can we discern what it is? Surely not from the opinion of Roger Ebert. In fact, we have certain (imperfect) heuristics that are meant to settle these disputes. They include various critic's awards, guild awards, polls, compendiums of opinion, top-10 lists, and even correlate factors like number of nominations or box-office, etc. Not that these things are wholly accurate, but when there is disagreement, the position that has these things on their side is stronger. Now there are a lot of systematic problems with this method -- for example, it favors bigger films with broader appeal than 'brilliant' films with limited appeal, it favors a particular type of film that appeals to the non-representative sample of people involved, and it frequently includes irrelevant criteria (like who has been 'snubbed' recently). At the end of the day, though, it is clear that this system has endorsed one of these films. With the exception of the Academy, almost every element in this heuristic favored Brokeback, right down to boxoffice.

Of course, this doesn't prove that Ebert's claim that Crash was a better picture is wrong. If he is right, however, we must account for the complete failure of the rest of the credentialing system -- It was so uniform that I doubt it can be chalked up to variance. Either the system is wholly unreliable -- which does not seem to comport with Ebert's belief that the Academy got it right for the right reason -- or you must believe that there was some pro-Brokeback bias that directed those groups to choose it despite it being the lesser film. Perhaps the critics, guilds, brits, and filmgoing public all had a pro-homosexual agenda that mattered more to them than their critical integrity. Or perhaps the bias lay elsewhere.

Sunday, March 05, 2006

deconstructing oscar

Brokeback Mountain went into the Academy Awards as the prohibitive favorite to win Best Picture, having won the New York and Los Angeles film critics awards, the Golden Globe for Best Drama, the Producers, Directors, and Writers Guild awards, the British Academy award, and even the Independent Spirit award. It also grossed the most of all the nominated films, had the most nominations, and won Best Director. Plus I really liked it. So how did it manage to lose to Crash? Aside from the "peaking too early" tautology, there are a few common arguments that people will make:

1) Crash is set in Los Angeles. One of the "rules" of Oscarwatching is that the Academy loves movies about their town.

2) Crash is an ensemble piece starring half of Hollywood. The degrees of separation between your average academy member and Crash are probably significantly lower.

3) Brokeback Mountain is about gay cowboys.

I don't think 1) is that persuasive. L.A. movies may do fairly well (see, e.g., Mulholland Drive, L.A. Confidential, The Player), but they haven't managed a win in at least a couple of decades. 2) is more persuasive, and the concept helps explains travesties like A Beautiful Mind beating Fellowship of the Ring and Gladiator beating Crouching Tiger Hidden Dragon. 3) is almost certainly a big factor. Despite their public liberalism, the Academy is still full of old men who are probably uncomfortable with homosexuality. Plus Crash is about race, which is a much less polarizing social issue that everyone can get behind, and it provides conscience cover for closet homophobes.

There's one other issue that may have tipped the balance, and that's Brokeback's bipolar Oscar campaign. I think it had two opposite problems: First, it tried way too hard to hide the gayness of the movie in its marketing. Since the initial poster which showed Ennis and Jack as Titanic-style doomed lovers, there has been almost no hint of homosexuality in any of the t.v. commercials or trade ads, which have all favored visuals of both main characters with their wives or herding sheep rather than with each other. To me, this demonstrated a lack of guts on the filmmaker's part, as it ran away from a compelling relationship between the two male leads. If the filmmakers can't buy it themselves, why should we? Second, the movie was pushed by its promoters as being a vitally important social message about intolerance. This caraciture may have distracted from the film's better qualities, or even fomented resentment among voters who felt they were being blackmailed. Not only would a less political message perhaps have been more palatable to people with some degree of actual homophobia who may have been willing to recognize the film on its merits, but the more political message may have turned off many voters who are quite tolerant themselves, but who don't think that society is really out to lynch every homosexual. By highlighting the film's "importance" rather than its quality, it becomes a referendum on an issue, and you lose a lot of support from Academy members unwilling to vote for the entire homosexual agenda. Of course, the movie really IS about humanizing homosexuality and promoting tolerance, but it does this by using old-fashioned characters and storytelling to show the viewer that the love between Ennis and Jack is both very difficult and very real. The marketers should have let people see this, and let the message speak for itself.

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