Sunday, November 16, 2003

The Federalist Society Lawyers Convention (III): Day Two Recap

[My apologies for not being able to post this installment yesterday. I had a limited posting window of a few hours Saturday morning before checking out of my room, and I couldn't get a working Internet connection. -- P.]

Friday morning: A coffee-laden breakfast dispatches the residual head-haziness from last night's fun. Today's program offers a lot of different panels that strike me as about equally interesting. I'll have to make some judgment calls. Robert Bork's lecture in the evening will, of course, be the snazz event of the day.

9:30 a.m.: I arrive, late, to the panel on Political Ideology in the Legal Academy. That's a sexy topic, by legal standards, so my having entered mid-stream probably explains why I find the discussion a little disappointing. Prof. Jonathan Turley (who seems to appear on at least one panel at any legal event held anywhere) condemns the poiticization of legal scholarship as contrary to the professional ideals of the academy. He particularly condemns the recent tendency of law professors to flock in hundreds to sign their names to "open letters" in the press that contentiously endorse a particular view on disputed and politically sensitive legal issues such as presidential impeachment or Bush v. Gore. It is, Turley argues, an attempt to bully public opinion by sheer force of numbers, as if this conferred a reasoned authority on the professors' pronouncements.

Several panelists echo Turley's criticisms of the "open letters" phenomenon. Yale professor Bruce Ackerman receives criticism for (in the view of some of the panelists) leaping into the fray with constitutional views that seem to fit the political exigencies of the moment. Columnist Stuart Taylor agrees that the "letters" are a bad and unscholarly phenomenon. Even Georgetown professor Mark Tushnet (a once and future Crit) agrees, noting that he refused to sign the impeachment letter.

As I said, I picked up the thread late in this panel, so you're getting fragments. There's a nice blogosphere moment: in the Q&A, rarely seen Volokh Conspirator Prof. Michelle Boardman steps up from the audience to ask a question, which she prefaces by saying, "I'm a newly appointed law professor; I'm right-leaning, Protestant, and female. Statistically, I don't exist." (I think this was a reference to Northwestern prof James Lindgren's research on the diversity of the legal academy. As I recall, Republicans, Catholics, and Hispanics are the most statistically underrepresented major groups on law faculties, but the intersection of two categories -- Republicans and women -- produces the most overwhelming statistical gap of all. Republican women are something like fifteen percent of the national population; only 0.5% of law professors.) Boardman notes that she teaches contracts and insurance and asks the panel if there is a connection is between the absence of conservatives in the legal academy, and the demand for particular legal specialties. The panelists agree that it is much harder to get a job teaching constitutional law than business law, and regret that everyone is so keen to teach con law. No particular answer emerged on the question, interesting to me, whether there is a degree of ideological resistance to hiring conservatives in con law, international law, and similar public law subjects that is absent or weaker in other subjects. (Professor Bainbridge and other bloggers examined these issues at considerable length several weeks ago.)

11:00 a.m.: Secretary of Labor Elaine Chao delivers a brief address. She is introduced by Fed Soc director, former Congressman, and Mayer Brown partner David McIntosh, who points out that Chao was the first labor secretary in 30 years to successfully invoke the Taft-Hartley Act to end a labor dispute (last year's West Coast shipping lockout). He praises her for having successfully urged Congress to repeal controversial Clinton-era workplace ergonomics regulations. Chao gets a lot of applause from the crowd. Since I duly described some of the male participants in yesterday's international law panels as "suave," I feel justified in describing Sec. Chao as "elegant."

Chao begins by praising the Federalist Society for its practice of including diverse viewpoints on its panels. She notes that the Department of Labor now includes more Society members than any other cabinet department save the DOJ. That was news to me. Chao delivers her address with the aid of an electronic prompter, and it is fair to say that her delivery is somewhat stilted. She discusses the new Labor regulations -- just finalized this week -- that impose heightened financial reporting requirements on American labor unions. She expresses strong approval of the Fed Soc's new joint venture with AEI, "NGO Watch." It will compile and report data on the activities and supporters of prominent non-govermental organizations. Chao says it will benefit all Americans by making the actions of NGOs more transparent. She finishes to applause. We are told she must leave without taking questions. I head up to my hotel room.

12:10 p.m.: "Are you having a good time?" a federal judge asks me as I step onto the elevator. I tell him that indeed I am; it's my first convention. We shake hands and exchange some pleasantries on the way down to the lobby.

12:15 p.m.: I meet an old college buddy for lunch. He's now an appellate litigator here in DC. We step down the street to a nice Italian place and talk for an hour about law, politics, the Court, and our hometowns.

1:45 p.m.: I decide to bag Ken Starr and the campaign finance/BCRA panel in order to sit in on the Corporate and Securities panel, entitled "Ups and Downs on Wall Street." Is this because Judge Kozinski is moderating the latter panel, and I have just learned that he issued a major Commerce Clause decision yesterday in United States v. Stewart? Hard to say. "Welcome to the panel on Wall Street and stuff like that," Judge Kozinski begins.

There's a decent crowd for this discussion. The big topics are (1) the Sarbanes-Oxley Act, with its heightened regulatory requirements for corporate directors, accountants, and lawyers; and (2) the new SEC proxy rules that make it a little easier for shareholders to get their own director candidates onto the ballot.

On the first heading, several panelists, including Illinois prof Richard Painter and SEC Corporation Finance honcho Alan Beller, point out that lawyers need to pay mind to the integrity and credibility of their methods of self-regulation as a profession, lest the federal government step in. The accounting profession provides a warning example for us. In the wake of Enron and similar scandals, "self-regulation of accountants is dead," as Mr. Beller bluntly puts it. The SEC has taken over.

Service Employees International Union president Andrew Stern takes the lead in discussing the new proxy rules. He thinks they are a step in the right direction: they allow institutional investors (like his union's pension fund) to exercise more control over the corporations that they partially own as shareholders. Stern is an impressive speaker, and his pro-capitalism arguments for liberalizing proxy rules reflect an interesting angle. (Prof. Painter directs a sally at him: "How about federal Sarbanes-Oxley certification requirements for unions?" There's a ripple of applause.) In fact, Stern expresses concern about the new Labor Department financial reporting regs for unions; he thinks they're pointlessly burdensome. A lot of the Q&A is directed at Stern. People bring up evidence of union corruption in defense of the new reporting requirements, and criticize mandatory union dues as a violation of individual liberties. It is evident that many people here are not big fans of unions or their leaders.

3:45 p.m.: The Environmental Law practice group holds a panel on "Constitutional Limitations on Federal Environmental Protection." This topic is important. The revival of the Commerce Clause in Lopez and Morrison raises the question of how the decisions may impact the ESA, CWA, and some other major federal environmental statutes. Judge David Sentelle, who is no stranger to these issues, moderates the discussion with a drawl and a firm hand.

NRO regular Prof. Jonathan Adler argues that the Constitution imposes real federalism limits on Congress, and these should be obeyed in environmental law cases, as elsewhere. Saying the federal government can't do something doesn't mean it isn't important, Adler argues, nor that it won't be addressed. Professor John Eastman concurs, and quickly runs down the list of Commerce Clause decisions supporting this view: Lopez, Morrison, Solid Waste Agency (itself a Clean Water Act case), last year's 4-4 tie in Borden Ranch. He also defends the application of federalist principles to environmental law on policy grounds. Local control ensures that the costs and benefits of regulations are borne by those who create them.

[. . .]

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Friday, November 14, 2003

Semi-Live From the Federalist Society Lawyers Convention (II): Day One recap

Hello! Wednesday night I wrote: "I plan to take notes during the day and write up the interesting bits at night." That plan seemed less attractive when I returned to my hotel room at midnight yesterday after conviving at the hotel bar. Instead, I'm up with the dawn today to run down Thursday's opening events.

8:30 a.m.: Registration. I spot several friends and ex-colleagues milling around. Also recognize (by name tag) a couple of the Ex Parte guys from Harvard Law School.

9 a.m.: U.S. Solicitor General Ted Olson gives the opening address to a packed crowd of navy and gray suits in the Grand Ballroom. You will be shocked to learn that the nation's top appellate advocate is, in fact, a confident and engaging public speaker. He leads off by joking that his appearance before the Society today will make it impossible for him to be confirmed by the Senate to an appointed position. The crowd laughs; Olson will make at least two more confirmation-related jokes in the course of his brief speech. Turning to the convention's theme of international law and U.S. sovereignty, Olson runs down the issues in some of the juicier foreign-related cases pending on cert before the Supreme Court, including cases from the Ninth Circuit and elsewhere that have given a broad interpretation to the 18th-century Alien Tort Claims Act. Then he returns to confirmations. He notes that even as he speaks, the Senate is in the middle of a marathon session prompted by the judicial filibusters. Olson states that he holds the whole Senate responsible for its failure to act on nominations. He opines (here as elsewhere, I am drawing on my notes to recall his remarks) that if current trends continue, nobody who is brilliant and qualified, but who is seriously conservative or seriously liberal, will be able to be confirmed as a judge anymore. And with that, he turns us loose, saying: "Start your engines."

Olson will be spotted, Waldo-like, at convention events throughout the day.

9:30 a.m.: Cool scholarly panel on "Customary International Law And Judicial Activism." Two themes dominate: (1) the legacy of the Second Circuit's decision in Filartiga v. Pena-Irala, 630 F.2d 876 (1980), which held that the Alien Tort Claims statute created federal court jurisdiction over private claims for violations of customary international law (CIL); and (2) the Supreme Court's use of evidence of international law and custom in blockbuster constitutional cases like Atkins v. Virginia (2002) and Lawrence v. Texas (2003). The next issue on the horizon is likely to be the juvenile death penalty. Assistant US AG (and former UVA law prof) Jack Goldsmith argues that Filartiga changed the game by allowing courts to use much less demanding standards to identify "customary" international norms, looking to unratified treaties, UN General Assembly resolutions, law review articles, and the like. He is frank in expressing his hope that the federal courts have begun to pare back "this nonsense." Columbia prof Lori Damrosch then holds up the pro-CIL side, noting that the "law of nations" is specifically mentioned in the Constitution, and that Jay and other Framers approved a role for U.S. federal courts in applying the law of diplomacy, admiralty, and the like. That should matter to a group of originalists like the Society's members, Damrosch suggests. UVA prof Curtis Bradley argues that, inter alia, customary international law is not binding federal law ("law of the United States"), either for judicial purposes or for pre-emption purposes. Neither Article III not the Supremacy Clause makes reference to the "law of nations," which was well known to the Framers. Only "treaties" -- i.e., explicit law -- are mentioned there. The reference to the "law of nations" occurs in Article I, setting out Congress's power, not the courts'. Suave, German-accented NYU prof Matthias Kumm argues that even if CIL is not treated as a direct source of enforceable norms, it may be useful as persuasive authority to courts construing the U.S. Constitution. He suggests that it may be "pragmatic" for U.S. Courts to dialogue with foreign courts in this way; it will make the foreign courts more likely to adopt exemplary U.S. norms in return.

Then Judge Frank Easterbrook delivers his thoughts on the subject. He is, shall we say, anti-CIL. "Custom, unless there's a command behind it, is not law. If there's a command behind it, we call it a statute." The only ways to make international norms binding on federal and state governments are through the Treaty power, and through the "define and punish" (law of nations) clause of Article I.

In the Q&A, Prof. Kumm agrees with Easterbrook that if originalism is correct, it is very hard to justify the use of CIL to guide constitutional interpretation, as Kumm proposes. Later, responding to a question about the role of scholars in identifying international law norms, Easterbrook says (cheekily, I think) that he finds the work of contemporary scholars useful when he confronts questions of international law, "just as I find the work of the Ninth Circuit useful when I confront questions of domestic law. I read what they suggest and then do the opposite."

11:00 a.m.: Milling around, people-watching. This is a majority male crowd, but I'm both pleased and impressed by the number of women present. I am constrained to observe that Federalist Society women are better-looking, on average, than FS men (who are normally distributed about the mean). This should not surprise; it's a characteristic of U.S. lawyerdom generally. I noticed it in law school too.

11:15 a.m.: Under Secretary of State John Bolton, who has a prominent white mustache, gives a vigorous address defending the international legitimacy of the United States' recent uses of force in Iraq and elsewhere. He contends (contra UN Sec'y Gen. Kofi Annan) that U.S. constitutional procedures themselves are sufficient to confer legitimacy on the use of American force in Iraq. Bolton also discusses the International Criminal Court (ICC). He defends the Bush administration's policy of negotiating "non-surrender" (or "Article 98") agreements with dozens of countries to protect U.S. personnel from the purported jurisidiction of the ICC. He notes that the US is not a party to the Rome Statute that created the ICC, and is no longer even a signatory, having "un-signed" the Statute early in the G.W. Bush presidency. Bolton criticizes the ICC as contrary to basic American values and constitutional principles such as popular sovereignty.

Lunch: Ended up at a table with some law students and some U.S. government attorneys here in DC. Pleasant chit-chat. One fellow asks me about some of my former experiences as a federal law clerk. Catering: standard convention food; roast beef, etc. Not bad.

Milling around after lunch: Hey, I met Feddie (Steve Dillard)! This is my first blogosphere moment at the Convention. Steve is an extremely affable and bright guy with a Southern accent that I kind of envy. He introduces me to one of his former co-clerks; she is also a Federalist in good standing. To tell the truth, there seems to be a bit of a Judge Daniel A. Manion mafia present here. Steve and I are scheduled to have dinner Friday night, so more later.

3:30 p.m.: Another showcase panel, this one on "Unilateralism, Multilateralism and American Sovereign Interests," and another packed crowd. This was one spirited discussion. State Dept. legal advisor William Taft IV gives a calm overview of current U.S. policy; we see value in cooperation with multilateral organizations; we are willing to act whichever way (unilateral or multilateral) is most effective in a given situation. To which iconoclastic Cornell prof Jeremy Rabkin responds with a gleeful riff on how "international legitimacy" doesn't matter much in the real world. Iraqi guerillas seem just as happy to blow up UN personnel as US troops. Playing along with the UN rules doesn't win us anything more in the way of real, material aid from other nations than cutting our own deals with them does. Rabkin notes that the people who were rebuilding occupied Germany were the same people who created the nascent UN, but it never occurred to them to turn Germany over to the UN. "Occupation is serious business, and the UN is not serious."

Next up is Ambassador John Richardson, the European Commission's man in the UN. Richardson has a plausible, gracious manner and an Oxbridge accent. I had several reservations about Ambassador Richardson's remarks, but he deserves kudos for coming to talk to us, facing a not especially sympathetic crowd of U.S. legal conservatives. He argues that the US needs the international diplomatic system, if for no other reason than to set some rules and regulations for the global marketplace. He plays on the concept of "democracy" and argues that by flouting the will of the majority of the world's nations and inhabitants, the U.S. is acting contrary to democracy, and thus to its own principles. (Rabkin will retort that it makes sense to talk that way about the US itself, but not the world as a whole. We here in the US are "used to defending each other," even if we don't all agree on values.)

Columnist Charles Krauthammer, who is bedeviled by recurring microphone problems, then delivers an eloquent, grim series of remarks. He approves what he terms Rabkin's "skewering of the notion of international legitimacy." Returning repeatedly to the example of the UN's condemnations of Israel, which have often been opposed only by the US and Israel itself, Krauthammer argues that the US not only should not be ashamed of going it alone in the world -- it should be proud. (In case you didn't get the drift, Krauthammer will also respond to a question later by declaring the United Nations "institutionally corrupt" and "morally bankrupt.")

You know who I liked? Professor Ruth Wedgwood (Johns Hopkins; former Yale Law). A Fed Soc regular and old hand at the international relations biz, Wedgwood gave a frank and pragmatic defense of US involvement in the UN ("staying in the game," as she put it), while being clear about the limits of what we can hope to accomplish. Nations who act in multilateral organizations are usually pursuing their own simple (or complex) self-interest; we should accept this and seek what we can get. She spoke of the "happy state of strategic ambiguity between unilateralism and multilateralism" at the UN.

The most likeable thing about Wedgwood was the way her measured and down-to-earth take on international politics (or so it struck me) was interspersed with quintessentially professorial asides. She observed at one point that the UN/EU folks tend to prolong "talks" well past the point where they're likely to do any good. And if my notes are right, she made a quite unselfconscious quip about them trying "to drag people into some Habermasian ideal speech situation." Gotta love the Habermas references before a crowd of lawyers.

Early evening: In my hotel room working on some documents I brought from home. Still have to pay the bills.

8:30 or thereabouts: The Society's annual dinner in the mega-ballroom. Rumsfeld was originally scheduled to speak to us, but he bailed, so WH Chief of Staff Andrew Card filled the bill. This is where I make a confession: I missed the entire floor program, including Card's speech. I arrived after the appetizers. Folks I talked to later said Card's speech was workmanlike, but that he speaks very slowly. They said the content of the speech was pretty much sonorous boilerplate. And that's no surprise: actually, every speaker I've heard so far from the political branches of the government has stuck pretty closely to boilerplate. These people simply can't afford to say anything interesting. So you have to look to the academics, columnists, and life-tenured federal judges (sweet Article III!) to strike the sparks.

Seating at the dinner was fascinating. My assigned table was way off at the edge of the ballroom. They seemed to have grouped me with a bunch of young folks (i.e., my age) who all hailed from the same geographic region where I now work. The same federal Circuit, as it were. Lots of talk about state Republican politics, which I followed quietly, since it wasn't my State they were discussing. Elsewhere in the huge room, some friends of mine had a far superior view of the proceedings from the unofficial Kirkland & Ellis table.

I saw Gen. Olson and (I think) Judge Starr milling around at dinner. According to the program, Nino himself was also present with some of his (extensive) family. Didn't see the man myself, though.

10:00 p.m. - midnight: Attendees and luminaries repair to the Mayflower Hotel's bar. I had a very enjoyable time. Fell in with some friends from one of the big-city Fed Soc chapters and shot the breeze at length. Cigars were distributed (embrace the cliches! resistance is futile); beverages were imbibed.

Basically, all the propaganda they tell you about the Fed Soc is true. I was sitting there contentedly, iced Scotch in hand, when I suddenly realized that Judge Kozinski was lounging with a big crowd to my immediate right (he seemed to be distributing cigars to the masses), and Judge Easterbrook was holding forth at the table immediately behind me.

And then Ted Olson stepped by, en route from the bar.

See you tomorrow; I'm off to this morning's first session.

* * *

Wednesday, November 12, 2003

Semi-Live from the Federalist Society Lawyers Convention: prologue

I arrived late this afternoon in gray and temperate DC, after an annoying rail schlep from the BWI airport. The Mayflower lobby was not obviously swarming with legal conservatives.

Come the evening I strolled down K Street in search a bite to eat. As I don't think I've mentioned before, I spent a summer in Washington during law school, in which time I got to know this area fairly well. Downtown DC at night is like being indoors, especially when there's a ceiling of clouds overhead. It must be all those similar, squat 12-story buildings full of lawyers, bunched close together on either side of you.

So many lawyers here. I spot 'em walking the streets, with neat, inobstrusive hair styles, talking articulately in cell phones or just walking home silently with purse or briefcase in hand, and I think, I know you. A little, anyway.

This prompts a pair of conflicting reactions that I felt often when I worked here. On one hand, I could sit down randomly at a bar with one of these passing lawyers with a fair chance that a pleasant conversation would ensue. Heck, we might know some people in common, a fact that is striking when you consider its context: a continent-sized nation of 280,000,000 people. On the other hand, I carry around a hazy notion of the ideally structured society, derived from Burke, Tocqueville, Eliot, et al. -- and imperial DC, with its endless platoons of carpetbagging symbolic analysts flown in from hometowns around the country, plus vast tracts of urban blight, is far from embodying that ideal.

I probably prompt similar thoughts in others.

Anyway, I ended up at a bistro in a small hotel, where I sat alone, read, and had a virtually perfect roast chicken. Good wine list too; see footnote.

The convention starts tomorrow morning. Most of the big speeches and discussions on international law and foreign policy -- this year's themes -- are tomorrow. I plan to take notes during the day and write up the interesting bits at night. See you then.

[FN:] Splurged on wine at dinner when I saw the restaurant's list of snazzy half-bottles. My eye leapt to the 2000 Domaine Weinbach Riesling Schlossberg Grand Cru. Weinbach is a favorite of mine: their whites tend to be more generous and extroverted than other primo Alsace producers (e.g., Trimbach). Dignified light gold color, dense, richly fruity, yet polished and essentially dry. Long clean finish. A wonderful dinner wine.

* * *

Sunday, November 09, 2003

Canada Rocks! (Or: I'd Listen to Neko Case Sing Anything)

Everybody who cares probably already knows the score, but it must be said: the best record I've bought in the past couple of months is the New Pornographers' righteously catchy debut, Mass Romantic (2000). The follow-up, Electric Version (2003) isn't half-bad either.

* * *

Superlative / comparative

The Chiefs are now 9 and 0. Unbelievable. I expect to hear Chiefs-related similes ("I'm blowing up like Dante Hall," "I'll run through your crew like my name was Priest Holmes") crop up in hip-hop singles in due course. This is only fair.

* * *

A Whiff of Nostalgic Futurism

I'm back. E-mail access was surprisingly dodgy while I was away, hence no posting.

The trip will have to be judged professionally by its fruits, but it seemed reasonably successful. If nothing else, I picked up some spare non-iron dress shirts that will come in handy for my next trip later this week. (Hey, what did you think I wore? An excessive fear of cliched behavior bespeaks a morbid disposition.)

I caught a connection at one of those hub airports that has a fancy monorail connecting its far-flung concourses. The monorail is cool. The doors close softly, an accentless voice speaks its warning, and away you slide. It delivers a whiff of space-colony nostalgia, prompting thoughts of that sleek future that didn't quite arrive -- the same feeling a tourist gets walking around the Minneapolis Skyway.

I read the other day that no human being has ventured beyond Earth orbit in over 30 years. Not quite what one expected, is it?

Speaking of nostalgic futurism -- but here the knowing, ironic 1990s variety -- I was looking the other day for one of my Stereolab CDs but couldn't find it. I think it's in storage at the ancestral home.

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Wednesday, November 05, 2003

Off On A Business Trip

Out of town until Sunday night. Not certain whether I'll be able to blog from the hotel, but I'll probably contrive to put up a post or two.

Do check out this post by Professor Fox at Philosophenweg on the apparent scarcity of communitarian sentiment in the blogosphere.

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Tuesday, November 04, 2003

Straight From the Underground: Memphisbowlerpimp

Readers of this blog must get disoriented by its sometimes abrupt changes of topic and tone. (Last week, as you'll recall, I encouraged you to eat more eels.)

But you might surf over and check out the collected works of this random reviewer I found called "Memphisbowlerpimp." I was searching Amazon for classic rap LPs at lunch hour when I stumbled across his reviews. There are dozens of them. Here he analyzes A Tribe Called Quest's 1991 classic, The Low End Theory:

"Tribe was off the hook in the 90s and my buddy Kroll had this CD. It was bumpin so much we decided to start our own rap group. We were white and Vanilla Ice was taken so we went with the complete opposite and called ourselves Chocolate lava. We were the MCs with Kites on the wheels of steel. Our performing names were Drunk pumpkin(Kroll), MC Mexican Runza(me) and Mr. Prissypants(Kiteman). We had a pretty good following in Omaha with our style, which was like a chemical imbalance. We turned parties out with non stop energy and classic tracks like, "Got my SNK baseballs stars", "Food, the final frontier" and [scatological, silly]. We took tracks from the Big Band era and used them as samples. There's nothing like infusing some serious bass into the Glenn Miller Orchestra and rapping about farming. We were unique but the biz never caught on. [. . . ] We had the life. We wore huge gold rope chains, Pro wings without laces and wore scuba outfits with a kango hat. We danced good, but the flippers were kind of messed up. We had a posse with guys like Meat, Luka Dawg, Robeee, Fook, D Sashy, Mondy D, and Chessclub."

The quality is inconsistent, and there's a fair bit of scatology (which leaves me cold), but I still had a good laugh at this stuff.

Here's another record, Hall and Oates, Bigger Than the Both of Us:

"This album totally backs up my assertion that John Oates could've been bigger than the Beatles if he didn't have Hall to keep him chained down. Oates takes you on a Journey with this album that makes you think of great performances of all genres. He is a master at his craft like Boogaloo Shrimp was in the Breakin' series. Hall brings the CD down with his whiny voice and angry cat stylistics. Oates rescues things by dropping bombs that no one in the 70s could compete with. He takes over the game like Jordan. I remember meeting Oates in 76 after this record came out and I told him then what I'm telling you now, "Herman's Hermits laid the road, you just need to stop at the traffic signals if you catch where the wind is coming from". Oates totally understood because he's freaking Oates, man. So if you want to hear Oates before hall took over the ship, this is your platter."

Succulent. The guy's "about me" bio asserts that he comes from (yes) Memphis and works in some government job. I like finding this kind of clandestine surrealism tucked in the interstices of life. It's like deconstructionism, but funny.

* * *

The Mobile Register on International Law

The paper criticizes the Justices' growing infatuation with the "international law" establishment.

(Link via Southern Appeal.)

Professor Reynolds also comments on the topic. As does Tech Central Station.

UPDATE: Edited the post.

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Monday, November 03, 2003

The Blawgosphere and the Political Compass (updated 11/4)

Thanks to Professor Solum's tireless labors as a tallier, we now possess a decent sampling of the views of a set of mostly law-related bloggers on the Political Compass. Thirty-five data points -- not bad.

Caveat: Some argue that these quizzes have a libertarian bias. This is not wholly implausible, since they've been popularized on the Web by libertarian groups, and a lot of people who don't think of themselves as libertarian apparently find themselves classified that way. (I also complained in a post below that the quiz applies the slanted label "Authoritarian" to even moderately communitarian-leaning beliefs.)

Setting all that aside, what do we find in the bl(aw)gosphere?

About what you'd expect.

- There are plenty of vanilla liberals (e.g., Chris Bertram, Michael Drake, C.E. Petit, Mr. Poon [not in Solum's data set], and most of the folks at En Banc. Prof. Solum himself trends economic centrist within this group);

- A good number of more-or-less right libertarians (Dan Drezner, Alexander Ignatiev, Tim Sandefur);

- A good number of vanilla conservatives (Feddie, Another Rice Grad, Michael Rappoport, Professor Bainbridge);

- One unreconstructed right-winger(The Angry Clam, who was way up past everyone else in the upper right corner);

- One unreconstructed leftist (Prof. Brian Leiter, ditto in the lower left corner);

- A few centrists (Prof. Tung Yin, and, to my perhaps unjustified surprise, Matthew Yglesias);

- And a small dotting of populists/paleoconservatives/theocons (myself and, at a stretch, Stuart Buck). I was the only blogger to land in the upper left corner of the Compass, though Stuart was close.

To me, this seems like a reasonably representative slice of young to middle-aged, middle-class North American male nerds (no offense to the non-male Sara Butler of Crescat Sententia, who ended up somewhere between centrist and vanilla conservative). This is after all the main demographic stratum that produces bloggers. Prof. Leiter was fretting on his blog about "how utterly right-wing the law parts of the blogosphere are," but quare how often he gets out of doors.

UPDATE: I had originally misread the sign on one of Professor Solum's own results, so I misclassified him. I've now moved him where he belongs. I also moved Prof. Bainbridge into the "vanilla conservatism" listing, since this is more consistent with my other classifications.

UPDATE 2: This excellent chart by Tim Lambert arrays the survey results in tabular form, and allows passerby to add new listings. Now I have some company in the upper left quadrant. (Link via Solum.) What a fun little exercise.

* * *

Judge Richard Arnold Answers 20 Questions

A lapse into law blogging.

Readers of Sub Judice will recall that I am a fan of Eighth Circuit Senior Judge Richard S. Arnold. I was definitely looking forward to Howard Bashman's "20 Questions" interview today with Judge Arnold, and it did not disappoint. The judge comes off a little terse compared to gregarious past interviewees like Judge Andrew Kleinfeld, but he is polite and thoughtful throughout.

I was particularly interested to read Judge Arnold's reflections on his near brush with a seat on the U.S. Supreme Court:

"I will tell you what the President told me, and I believe it is accurate. I have had a form of lymphoma since 1975. From time to time, it needs to be treated, though it does not usually interfere with judicial functioning. The problem was doubts about longevity. No physician acceptable to the White House was willing to give sufficient assurances on that score. I also had some political opposition, but I believe that health was the dispositive factor."

He adds: "I said at the time that Chief Judge (as he then was) Breyer would be a wonderful justice, and events have proved me right. [But] as to whether I was disappointed, I think you know the answer."

At a later point in the interview, we see a glimpse of the philosophy Judge Arnold might have brought to the Supreme Court:

[BASHMAN]: Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?

[JUDGE ARNOLD]: I doubt that I am a pragmatist in the sense that Dick Posner uses the word. (Incidentally, I admire him greatly. He is a true legal genius.) I regard myself as more of a "constitutionalist" or "legalist." In this regard, Justice Black is a model of mine. The job of judges, in most cases, is to ascertain and apply the will of other people, for example, the Framers of the Constitution or of a statute.

That pleased me. Justice Hugo Black, the original liberal textualist, is a sound model for an appellate judge. Black believed that the role of the judiciary in a democracy is not the exercise of an administrative-style discretion, but the application of an objective and ascertainable law. He sometimes got the law wrong; he was consistently right on the question of judicial role. Richard Posner once wrote that if the Warren Court had an "intellectual leader," it wasn't Warren or Brennan, but the self-taught Black, who, interestingly, spent a fair amount of time in dissent.

(I fear that my man Feddie is already drafting a post castigating me for praising Black, so I'll note that yes, he had his weaknesses, including an unfortunate Catholic problem, which is obviously not a matter of indifference to me. Nevertheless, I consider him one of the most interesting and important twentieth-century Justices.)

I recently came across a law review article comparing Black's jurisprudence to another famous textualist's: Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. REV. 25 (1994).

Now, Judge Arnold goes on to say:

"In the case of the Constitution, of course, it's hardly ever possible to determine with certainty what the Framers intended about a particular question. So we lower-court judges are occupied mainly with applying precedent and, in default thereof, such scraps of history and tradition as we can lay our hands on."

It's a question of degree, and I think Judge Arnold's "hardly ever" overstates the degree of uncertainty. (I would also say that describing it as a search for "what the Framers intended" is correct only in a shorthand sense; the object is really to determine the fair meaning of the text in historical context, not to plumb the insides of the Framers' heads.) But the basic point is reasonable, and doubly so given that Judge Arnold speaks as an intermediate appellate judge, whose job, as he says, is to "appl[y] precedent."

* * *

Watch This Space for Semi-Live Coverage From the 17th Annual Federalist Society Lawyers Convention

The big show is next week. Everybody and his/her chinchilla will be there. I will be staying at the Mayflower for all three nights and providing periodically updated coverage of notable speeches and other happenings. "Wow, Frank Easterbrook is pounding kamikazes at the 1789 bar with Ludacris and Sec. of Labor Elaine Chao!"

I'm really looking forward to it. Between the speeches I've set aside time for a drink or a bite with a number of lawyer chums from across the nation -- including at least one well-known law blogger.

PS: No, my name tag will not say "Plainsman."

PPS: Don't be self-conscious -- I won't blog private conversations at the Convention without permission.

* * *

Thursday, October 30, 2003

Speaking of "Authoritarianism"

Have you noticed that the New York Times wine panel is really hard-assed?

I love it. They don't like anything! Moderate-priced Burgundies; California chardonnays; California syrahs -- they're unafraid to pronounce entire, lucrative wine categories "disappointing."

This week they taste a bunch of expensive "Super Tuscans," a globe-hopping category created by Italian growers who experiment beyond the traditional regional grape blends. Only one of the wines (which mostly clocked in at $35 - $50) mustered even three stars!

* "Impeccable, but not very interesting," [Frank Rich] said after our blind tasting. "You can see the wheels turning."

* "They're good wines, but I won't remember them tomorrow," [Amanda] Hesser said.

* "[Eric Asimov] found them for the most part to be corporate, jet-setting wines that definitely were not of the earth."

It's nearly as much fun as watching William Logan, the New Criterion's legendarily hard-to-please poetry critic, go to work on a new collection of verse.

What keeps the game interesting is that you can't dismiss these critics as mere spleen-venters. This is because (1) their criticisms are attentive to actual qualities of the objects criticized (they see through a glass darkly, but with an eye for detail); and (2) what little they do praise is indeed praise-worthy. Thus, the wine panel has celebrated the wonderful 2001 German Rieslings, they have recognized that Oregon Pinot Noirs are an exciting category, and they enthused over a tasting of affordable red Cotes du Rhone wines -- one of the best budget wine categories anywhere. (My house red, if I had one, would be Jaboulet's Parallele 45.)

I've said it before: What a contrast between the NYT's often irresponsible editorial and news pages, and its Dining pages, where its writers (even Frank Rich!) discharge the fundamental duties of the conservative intellectual: to articulate, guide, and defend standards of civilization. For more on this dichotomy, see David Brooks.

* * *

Wednesday, October 29, 2003

The Homestar Runner Halloween '03 Toon is Up


Not as funny as previous years. Some of the costumes are great, though -- esp. Strong Bad, Strong Sad, and the Poopsmith. And be sure to click on the rightmost candy-corn light in the final scene ...

UPDATE: Are the Geto Boys really "old school"?

* * *

Internet Political Quizzes and Slanted Labels

Taking a cue from the Prof, I took a couple of those Internet quizzes that purport to situate your views on a continuum. On the Political Compass, I come up almost dead center, with a slight tilt toward economic interventionism and social cohesion. On the World's Smallest Political Quiz, I come up just inside the so-called "Authoritarian" range.

I have to complain about that obviously slanted label. Most of these quizzes use the same basic 2-D scheme to plot your results -- there's an economics axis (nonintervention vs. intervention) and a moral/cultural axis (nonintervention vs. intervention). Those who tend to think government should not act to preserve mores, tradition, social capital, etc., are classed as "Libertarian." "Extreme" libertarians, it is explained, are sometimes called "anarchists." Those who tend the other way are all bunched together as "Authoritarians" -- even though this category, too, includes a wide swath of perfectly respectable opinion. "Extreme" authoritarians are sometimes called "fascists" or "socialists," we're told.

Um, yeah. As though "authoritarian" isn't already almost as derogatory as "fascist."

Here is the story, as I understand it. The two-axis scheme used by the World's Smallest Political Quiz (and a bunch of other quizzes) originated in a political science paper in the 1960s, except that the original author labeled the top quadrant as "communitarian", a genuinely even-handed term. Web libertarians picked up on the idea and popularized it in the quiz format (the quiz link above is to a libertarian group's site), but apparently couldn't stand to see their ideological opposites receive a neutral name, because they relabeled them as "Authoritarians," the label that has taken root on the Internet.

If the above account is wrong, I'll cheerfully correct it, but I do remember reading this a few years ago.

So ditch the propaganda. If you want to call me a moderate communitarian conservative, that's fine. So was Burke. "Authoritarian" I certainly am not. Read my blog, for heaven's sake.

* * *

UPDATE (10/29): Changed the post to make clear that this is my recollection of the Quiz's origin story.

Permalinks Updated

After my hiatus, the least I can do is clean up the place a little.

New permalinks have therefore been added on the left to Professor Bainbridge, who is rapidly ascending into rarefied levels of blogdom, and Gregg Easterbrook, who got royally shafted (see The Ambler).

Also, I've fixed a broken link to Ex Parte, the Harvard Law Federalists blog.

Also, the Kansas City Chiefs are 8 and 0.

* * *

Speaking of Japan

Slate ran a cool Tokyo travelogue by Seth Stevenson a couple of weeks ago. I've never been to Japan (it's the foreign place I'd most like to visit) but I did spend six months once in an office where I was the only non-Japanese, and several of Stevenson's observations ring true. Check out the slides as well.

I've been interested in Japan ever since my teenage days as an anime geek.

"You make it sound past tense. Are you still an anime geek?"

Well, yes, to a degree. I've got some DVDs around the place; I keep my eyes open. You'll find a restrained nod to anime in my "Recreations" links, where you'll find the official US site for the landmark 1995 series Neon Genesis Evangelion.

One comes across artsy and media types who know Evangelion even though they follow no other anime. It's psychologically deep, theologically fraught, depressing, disturbing, and immensely well directed. It also subtly crackles with sex. Indeed, Freud and gnosticism/Christianity/Kabbalah are the two chief explanatory templates that underpin the series. Anyone who likes The X-Files (a much less intense series) or SF generally should check it out. (Please watch the subtitled version, not the flatter US dubbed version. In Japan, voice actors for successful animated series are big stars, and the Eva voice cast is fantastic.)

"So who's your favorite character?"


But like I said, I'm keeping things low-key around here. You'll find no permalinks to the spirited SF comedy Martian Successor Nadesico (1996), or to the military epic Zeta Gundam (1985), which was to me back in high school what Star Trek is to a lot of people: the absolute epitome of cool.

* * *

Eat More Eels

It is high time for eels to return to the American culinary mainstream. They are delicious, as was once widely recognized. The Pilgrims loved 'em.

"Our bay is full of lobsters all the summer and affordeth variety of other fish; in September we can take a hogshead of eels in a night, with small labor, and can dig them out of their beds all the winter. ... These things I thought good to let you understand, being the truth of things as near as I could experimentally take knowledge of, and that you might on our behalf give God thanks who hath dealt so favorably with us."

(Edward Winslow, "A Letter Sent From New England"). The English practically emptied their rivers of eels in earlier centuries, so popular were the ugly but unctuous little critters. C.S. Lewis casually worked into his Narnia books a scene of two children delightedly eating fresh-cooked elvers (I think it's in The Silver Chair).

Today, a few French bistros in big cities offer eel dishes -- I had one in New York a couple of years ago. But for most of us, the only convenient way to get an eel fix is by ordering unagi by the piece at the local sushi joint, and that gets expensive. In my experience, few US Japanese restaurants (at least here in Red America, where there's no Japan Town) offer the full-blown cooked eel dishes that are popular in Japan. It's a shame. On a chilly fall evening I would love to be able to sit down to a nice plate of barbecued eel over rice -- unajuu -- and a bottle of Sapporo Draft.

* * *

Happy 100th, Evelyn Waugh

Hello! If nothing else suffices to pull me out of a shamefully long blog hiatus, Waugh will. Yesterday would have been the 100th birthday of the notoriously difficult Brit writer with the exquisite prose.

It was a pleasure to watch all the mini-tributes to Waugh spring up from conservative blognauts: everyone from The New Criterion to Steve Sailer to Prof. DeBow at Southern Appeal flew the flag.

The nonconservative TLS ran a fine critical essay by Geoffrey Wheatcroft. Wheatcroft mentions several of Waugh's recent biographers; in a forgivable bit of Anglocentrism, he omits to mention the excellent, revisionist Life of Evelyn Waugh by Prof. Douglas Lane Patey. But Patey's is by far the best analysis of the role of Waugh's Catholicism in his authorship, and since religion is in fact the key to Waugh's literary concerns, Patey is able to shed much light on the aesthetic issues.

I read anything by Waugh with pleasure. I laugh my ass off at Decline and Fall. It is fashionable to bash Brideshead Revisited, but I must confess I love it too, in a pre-critical way not easy to rationalize to a disinterested observer. I wish I had a little sister like Cordelia; I wish I had lunched with Anthony Blanche in college and recited "The Waste Land" through a megaphone at the returning crew team. That sort of thing.

I also recommend Waugh's shrewd and almost pathologically readable Essays, Articles and Reviews (ed. Gallagher). Alas, they are out of print: you will have to find a used hardback copy, as I did.

* * *

Thursday, October 09, 2003

[never mind]

Monday, October 06, 2003

One More From Sir Mix-A-Lot

You libertarians out there might be saying now, "Hmm, from your prior post we can see that Sir Mix-A-Lot is sound on the Second Amendment and on tax reform, but what can you tell us about his views on the Fourth Amendment?"

I refer you to the first song on his breakthrough Mack Daddy, "One Time's Got No Case." "One time" is slang for police. Over a choice Stevie Wonder keyboard sample, the song tells an anecdote in which some bad police stop Mix-A-Lot for driving around in an expensive car that's "pumpin much bass" and try to find something to nail him on:

I'm whippin' out my IDs
My gat sits under my seat
The cops throw me out in the street
They found my gun like thieves
Officer Friendly has got a new beef
So I show him my gun permit
I told him I roll legit
Give me a test to see if I'm drinkin'
They claim my breath was stinkin'
They had me walk on the line
I walked backwards stopped on a dime
My female just reclines
Cause she knows I know the time

He adds a characteristic touch:

They ask what I do for a livin'
Should this information be given?

(I was asked a similar question last year by a couple of officers who stopped me while I was strolling through a leafy neighborhood, not my own, at night.)

Mix finishes the verse:

This is what keeps me driven
Some cops want a brother in prison
So I got me a few attorneys
Just in case a cop wanna burn me
They protect me from the state
Cause one-time's got no case, break it on down

Very Lew Rockwell.

In the next verse, Mix gets harassed, beaten up, and taken into custody by the officers who stopped him (without reasonable suspicion, it would seem).

He responds by filing a 42 U.S.C. 1983 suit against the officers for illegal search and seizure. When's the last time you heard a rapper boast about litigation? Check it out:

They took me on down to the jail
P.L.B. came to pay my bail
Then we called Goldstein and Claire
Them's my lawyers
Walkin' up the stairs
To the courtroom dressed in suits
[This is nicely represented in the video. -- ed.]
'Bout to give a couple cops the boot
So the female cop takes the stand
Took her oath with the wrong damn hand
My lawyers ate her up like catfish
The other cop pleads the Fifth
She lost her job [. . .]
Sorry baby, one-time's got no case

I need scarcely remark that the role-modeling in this song compares favorably with the brutal anti-cop rhetoric of some other '90s rappers. The song ends with a few extemporaneous remarks: "Y'all hate to see a brother get smart. ... I fought with the brain and not with the gat. Peace."

Look, if you'd all prefer to watch Pres. Bush debate prescription drug benefits with Howard Dean, be my guest.

* * *

Friday, October 03, 2003

Sir Mix-A-Lot for Libertarian Party Nominee in 2004

[Parental Advisory: Explicit Lyrics]

You all know who Sir Mix-A-Lot is. Some of you think you don't, but you do, because he wrote "Baby Got Back", known in the '90s to a national cohort of junior high kids as "That Big Butt Song." It was vulgar and funny.

Mix is from Seattle. His real name is Anthony Ray. He wasn't the one-hit wonder a lot of casual FM listeners thought: by the time "Baby Got Back" appeared on the sonorously titled Mack Daddy (1992), he already had two successful independent albums under his belt. I'm quite partial to the title track from 1989's Seminar, with its unusual, stop-and-start dactylic flow:

Intelligent, packed, so inadequates step back, Mix-A-Lot's here to enforce what's dope
A brand new album, better than the last one, listen up close or you might get smoked
Some say rap has become repititious, mixin' up beats over old break jams
Some hate me, some imitate me, but take me out? I'll be damned!
This album is a demonstration of various styles of the hip hop art
I get paid, but I do it cause I love it, all enemies hush, let the seminar start

Sigh. Thinking about early Mix albums reminds of when commercial rap was cool and entertaining, as opposed to now, when it sucks. I digress.

As "Baby Got Back" suggests, Mix has a knack for funny songs, especially songs about cars (he was a pioneer in this respect). Some of you who were a little more plugged in to '80s-'90s music might remember "My Hooptie." ("Somethin' on the left front tire keeps clickin.") In his heyday he was a little older than many prominent rappers; he's now pushing 40, and has a comeback album about to drop. His voice is nasal, instantly recognizable, but it's the nasal voice of a big man, which I think he is. Crisply articulated, often salty lyrics.

You're wondering where this is going? Well, in addition to a lot of songs about strippers, the female body, and macking, Mix-A-Lot also dropped some political songs that reflected an ornery, classic libertarian point of view unusual in rap.

I'm not a fan of sex rhymes, so my favorite cut on Mack Daddy is the last song, "No Holds Barred." All of the pro-firearm ownership libertarian types in the blogosphere ought to know about this song. It's the only hip-hop track I'm aware of that functions as an explicit defense of Second Amendment individual rights.

Check out the lyrics here. The first verse is the weakest, with some typical exploitative rap bluster about how Mix-A-Lot is going to get violent on folks who mess with him. But it starts to become clear he's talking about defending his home:

I don't give a damn about a stupid ass burgular
It's all circular:
The dope dealer sells dope to the dope smoker
The smoker breaks in and tries to choke ya
But I ain't the one to run from you, son
This is MY HOUSE, and it's full of guns

Home and hearth.

Second verse brings in some more explicit politics:

When my house got robbed, a top notch job
Cops laughed while my mom just sobbed
9-1-1 only works for the rich ones
So I collect guns
So step right through if you're down for the wrong move
Most crews are moved by my twelve gauge BOOM!
How can I love when I gotta
protect my neck from a punk suspect?
Gun control - I ain't wit it
They banned the AK and any fool can STILL get it
The innocent have been beaten, bruised and scarred
But for this citizen, there ain't no holds barred

And then he threads in some samples from a freaking NRA speech!

"It is an absolute infringement on my second amendment rights"
No holds barred
"When is this attack on gun owners going to end?"
No holds barred
"Education, versus restriction"

The third verse is the coolest. Mix ain't Tom Paine, but he's in the tradition, and this is some good, blunt propaganda:

Hypothetical situation:
Gun control starts sweepin the nation
Now you got a bunch of unarmed innocent victims
Gettin FUCKED by the system
Sittin at home with a butter knife, huh,
Any fool could rape your wife
So what's up when the criminals can't be stopped?
The only one with guns are the cops
But it's hard for a brother to trust police
Huh, so the shit don't cease
So I go downtown to buy a hot gun:
I hated criminals, and now I'm one
Because I bought a gat to protect my house,
The cops wanna bust me out?
So it's illegal to protect yourself? Hell,
You either get killed, or you're in jail!
So when you vote
You better think about what I just wrote
And fuck writing a note to your Congressman
You got the fool hired
Now help get the fool fired
A scary scenario
And I put it in your stereo
So when a fool tries to run up on my car:
R.I.P., no holds barred

Admit it, more American popular music should be like this. Beats the snot out of the exploitative, homogenized, bling-bling porno garbage on 95% of large-selling rap albums today.

If "No Holds Barred" doesn't convince you Mix should be brown-bagging it with Randy Barnett at the Cato Institute, he also wrote a song about his tax disputes with the IRS called "Take My Stash"! It's on his later, less well known album Chief Boot Knocka (1998). Here you go:

The IRS got a thing for a brother like me
Uncle Sam wanna buy another missile (yep)
Strip Mix-a-Lot straight down to the gristle (mm)
I made a few mil' and the auditors come
Sounds dumb, but this is how the phone got hung
Somebody hated that Mix-a-Lot rep
Straight-up snitch tryin to get Mix swept
But I'm back, the black dynamo's on track
I got jacked for the big tax
Yep, they freezed my accounts, put a lien on my house (mmm)
Straight left a nigga ASSED OUT
Helicopters over my house (my house)
Takin pictures of a brother in his drawers with his thing out (uhh)
Livin the life of a suspected crook
Cause I never play the game by the book
If you're living too large, you better watch that ass
Cause the IRS
Is gonna take yo' stash

I thought of "No Holds Barred" the other day while talking to a friend about buying my first gun. Yes. I'm taking the Second Amendment plunge, for self-defense, and the principle of the thing, and perhaps for some recreational shooting. I'm leaning toward a .357 Smith & Wesson 66 revolver, which two different people have independently recommended as a reliable, utilitarian gun. Since I know zilch about shooting and gun safety, I will also be investing in training. I'm searching for a good local range and waiting for the next gun show to come into town.

Those who've read this far will enjoy this recent interview with Sir Mix-A-Lot on VH1's web site. He seems very level-headed, even as he promotes his new album's lead single about men lying about their (ahem) "Big Johnson." I make no promises about the album, but Mix deserves some props regardless.

In light of the foregoing, I was amused, but not surprised, to see that one Eric Leaver, in the comments section of the Libertarian Party's web site, recommends drafting Sir Mix-A-Lot as Libertarian candidate for president in 2004.

Now I'm no libertarian. I'm pro-union, anti-NAFTA, and like most Americans who don't write for the prestige media or post on the Volokh Conspiracy, I favor major reductions in immigration. But if the LP were to field, say, a Rep. Ron Paul / Mix-a-Lot ticket in '04, well ... the debates'd be a lot of fun. (Maybe Mix could have a talk with Rep. Paul about the whole gold-standard thing.)

Not much more far-fetched than voting for Maria Shriver's husband.

ADDENDUM: I just remembered, the Mix-A-Lot-for-elective-office meme has cropped up before. The Onion had a hilarious "News in Brief" last year that went as follows (N.B. randy content):

Senator Mix-A-Lot Sponsors Titties-On-Glass Legislation

WASHINGTON, DC -- Seeking to stem a four-year decline in freaky Yolandas
throwing they titties on U.S. glass, U.S. Sen. Mix-A-Lot (B-WA) introduced
sweeping new putting-'em-on-glass legislation Tuesday. "Now listen up,
Uncle Sam / I wanna see soul sistas pressin' that ham / Make me say damn /
I wanna rear-end 'em / So I'm callin' a Senate referendum / Bounce by the
ounce don't make no fun / I'll take 'em by the ton, son," Mix-A-Lot said.
"Don't hand this bill down to no committees / 'Cause Mix don't wait on
monster titties / Note to my colleague Tom Daschle / That if the babies be
gettin' bashful / No melons droppin' on my windshield / So get them nudie
laws repealed." Mix-A-Lot then gave props to the authors of H.R. 1610,
from which several key clauses were sampled.

* * *

NYT Dining This Week

Decent NYT Dining & Wine section this Wednesday. As usual, I agreed with the judgment of the wine panel, which found itself underwhelmed by a slate of California syrahs. Believe it or not, I happened to try a couple different Cali syrahs by the glass with dinner earlier in the week at a local bistro. I found them harmless (not as brutally oaked as some of the panel's seem to have been) but essentially characterless.

Australian syrahs/shirazes are far superior for everyday sipping; the wealthy should be drinking Cote Rotie.

I also approved Amanda Hesser's principled diss of Sandra Lee's doctrine of "semi-homemade" food, a fast-growing and heretical culinary splinter sect. Ick.

* * *

Thursday, September 25, 2003

Productivity Threat

Tomorrow my copy of Diablo II should arrive. I know all you hip kids think D2 is, like, so passe now, but I usually make my (rare) software purchases long after the hype subsides. The game was $16. (I eschewed the expansion set that lets you play a Druid or Assassin.)

Interestingly, I refused to buy any insidious computer games while I was in private practice and had a billable requirement; now I'm under the old Eagle, and I've bought one. Hmm.

I'm not too worried. If it comes to it, my house includes a couple of really inconvenient nooks where I can stash things I want to put out of mind.

* * *

Guest Blogger Toby Stern's Guide to NYC Steakhouses

I [Plainsman] devote regular attention to the New York Times Dining Section because it offers the best weekly food journalism in the country. But I don't live in NYC. I live here, in a middle-sized city with some very nice (and cheap! don't get me started, especially about wine prices) restaurants that I'm unable to blog in any detail because of quasi-anonymity issues. The result is a certain deficit of you-were-there. For example, I mentioned Smith & Wollensky's move to an all-American wine list in a post below, but was unable to couple it with an observation about whether the chain's NYC outpost is worth your attention.

In the past, I might have referred you to NYC food maven and lawyer Steven Shaw, the Fat Guy, who compiled a magisterial steakhouse guide. But Shaw's website is temporarily down for redesign (man, that "redesign" has been going on for a long time ...), so we're all thrown back on our own resources here.

Solution: guest blogger. That's right -- I can pull down celebrity cameos, too. In your face, Volokh Conspiracy!

I've invited my Web chum Toby Stern, a.k.a. Mr. Poon of Sugar, Mr. Poon?, to give you all the lowdown on New York's top steakhouses. A native New Yorker, University of Pennsylvania 3L, golfer, Zoroastrian[*], and discerning carnivore, Toby has just completed three months of gratis dining on the town as a summer associate at a major Wall Street law firm. He is well primed (no pun meant) to tackle the topic. I give you Mr. Poon.

[*] WARNING: Not a Zoroastrian.


On NYC Steakhouses

Hi, I'm Mr. P. I'd like to thank Plainsman for inviting me to do my very first guest blogging.

This post is meant to be a brief primer on New York City steakhouses, taken from my experience as a steak eater growing up/living in the NYC area and as a summer associate for a firm in NYC this summer. OK, on to the beef...

...and still champion: Peter Luger (Brooklyn)
One baseball writer recently suggested that the National League Most Valuable Player award should be named after Barry Bonds (who has recently been so dominant that he's a no-brainer for the award each year) and given to his nearest competitor. This is how I feel about Peter Luger. It's way hyped-up... but meets the hype with sublime porterhouses and the second-best bacon in the city. So much has been written about PL... I'll just conserve space and say, "It's the best."

Best on the island: Sparks
I firmly believe that Sparks is the best steakhouse in Manhattan. First, and most importantly, the steaks are shockingly consistent -- medium is medium, rare is rare, medium rare is right in between. I've never dined there with anyone who had any reservations about the meat, which is more than I can say for any other establishments on the list. Second, the service is nearly flawless. These waiters seem like they've been there forever and have seen everything, including bloodshed. [I was wondering if you were going to say something about that. -- Ed.] They even change your tablecloth after your steak. Third, Sparks may have one of the best-priced wine lists in the city, especially for a big-name steakhouse. You have a good international selection as well as fine California juice to help knock down the 16oz sirloin. The only downside: the sides are solid, but unspectacular.

Others to consider:
Palm is an always-reliable joint, with establishments on both the west and east side of midtown Manhattan. Palm has that great steakhouse-y atmosphere (with caricatures covering the walls), and a fine wait staff. Where Palm really shines is with its sides -- they're all excellent and complement your steak nicely. As for the beef, I've had amazing steaks at Palm and not-too-good steaks at Palm. Sometimes the kitchen is a little inconsistent on cooking time, which is a problem (for a $50+ meal, at least!).

The common link among Alan Stillman's Restaurants is that you're getting the beef that Alan Stillman's restaurant group buys. Not that there's anything wrong with that! Smith and Wollensky is a national fave, but I'd suggest going somewhere that only exists in NYC. Maloney & Porcelli (named after his accountants, I believe) offers to possibility of outdoor eating. The Post House is a good choice if you're an Upper East Side-r. My choice, though, is an 8pm (or later) reservation at Cite, where you can do the all-you-can-drink wine dinner and throw back as much excellent wine as you want while the waiters hardly bat an eye (oh, and they include a great steak with that wine :) ). [This is on my to-do list next time I visit. - Ed.]

While others swear by it, I was somewhat underwhelmed by Ben Benson's Steakhouse (only been there once). I wish I could put a finger on it... but I can't. It was a good (but not great) steak, with decent sides, but I wasn't bowled over. The decor is almost hilarious in its manliness. Maybe that was it. (N.B.: Ok, the creme brulee bowled me over).

Many (if not most) restaurants buy their beef in the meatpacking district, so why not go to the steakhouse that's sat there since the beginning of time? Answer this question in the positive and try Old Homestead. This is a steakhouse-goer's steakhouse -- dark lighting, clubby feel, knowledgeable waiters, the works. The numerous big chops are succulent and near-perfect. Try the shoestring fries as a side. One thing: Not for the wife -- I half-expected to see a "No Women Allowed!" sign outside.

Ruth's Chris and Del Frisco's Double Eagle Steakhouse share a paragraph because they remind me of each other: they have amazing sides, excellent staffs, and great meat. They also share a downside, which is that I think they cook their steaks in too much butter. Don't let this deter you, because these are great establishments. They're a few blocks from each other just west of Rockefeller Plaza, and if you're going to choose one I'd pick Del Frisco's because it's not located in 20,000 other cities. [I also read -- I think from Steven Shaw -- that the DF chain's wine holdings are really impressive. -- Ed.]

Earlier I said that Luger's has the second-best bacon in the city. The bacon winner, so to speak, is MarkJoseph. The bacon is just that good... and they make a great steak and compliment it with a solid wine list. Right in the shadow of the Brooklyn Bridge, if you'll be downtown.

And finally, a secret: Fairway Cafe
Everyone on the Upper West Side of Manhattan knows that Fairway is the place to shop. Not everyone has tried the Fairway Cafe, located on the second floor of the 74th & Broadway establishment. By day, it's a little cafe, but by night it's a steakhouse. A unique steakhouse. First, there are no tablecloths -- you're eating off of little, rickety metal tables. Second, the staff isn't particularly great. Third, the menu is like a chart you need to fill out -- you get a steak (you choose the cut) with a sauce and a side (that you choose) with an appetizer (again chosen from a list) with a dessert (pick your fave!). Why is this worth mentioning? Not only is the steak great, but.... it's BYOB. With no corkage fee. I can already hear Plainsman running to buy a plane ticket... [Dude, I'm going to Cite for that post-8 p.m. wine deal. -- Ed.]

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Getting more play than Rambo

To paraphrase EPMD, How Appealing is definitely outta control. Mr. Bashman got lengthy "comments box"-type e-mails yesterday from Miguel Estrada, Ninth Circuit Judge Michael Daly Hawkins, and Alabama Solicitor General Nathan Forrester.

Just remarkable. I'm waiting for Chief Justice Rehnquist to drop a line someday: "Hi! Love the blog. By the way, what we were getting at in U.S. v. Lopez and U.S. v. Morrison was ..."

UPDATE: D. has an interesting response to this post:

"[W]hy is the Alabama S.G. wasting his time arguing the merits of an important appeal on a blog? Could it be that he thinks that the panel (and its law clerks) read Howard daily too, and wants to make sure that they get his voice in? If so (and I think this is the likely explanation), does Howard owe the plaintiffs in the case a sur-reply? If I were the plaintiffs in the case, I would shoot Howard an email post haste, which praised him, and then offered some more arguments on the merits. Prediction: in one year, writing an email to Howard Bashman, hoping for a positive mention in the blog, will become part of what it means to zealously represent a client in a high profile appellate case. Yikes."

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Wednesday, September 24, 2003

A succulent week in the NYT Dining section

Ah, that's more like it. All sorts of enjoyable articles in this week's Wednesday diversion.

This week's restaurant reviews page is all-French. The principal review is Cafe Des Artistes, which even a bumpkin like me has heard of. I thought William Grimes did a nice job of communicating the vibe of a frumpy yet worthwhile restaurant. (If I were thirty years older and lived in NYC, I suspect I'd haunt the place. I love "compassionate conservative" restaurants like Chicago's Printer's Row and, at the top of the genre, Everest, both of which offer considerably higher highs than Cafe des Artistes appears to do, in Grimes's telling.)

The $25 and Under review is an improvisatory little modern restaurant called 360 in Brooklyn. Sounds truly inventive -- Spanish mackerel and sesame sauce, steak tartare molded in red eggs with cornichons. The "non-conformist" French wine list sounds particularly intriguing. (What does Grimes mean by "unknown grapes"? Rousanne? scheurebe? aligote? Weirder than that?) I admit it: a challenging little place like would be hard to find outside the five boroughs -- even in Chicago.

But enough of that Blue State bushwa, the coolest thing about this week's Dining section was the front page article on NFL tailgating feasts. Did I love this article because it focused on the pregame sights and smells at Kansas City's raucuous Arrowhead Stadium, home of the MIGHTY, MIGHTY 3 AND 0 KANSAS CITY CHIEFS!!, you ask? Not at all. I simply enjoyed the Times' exploration of a great populist culinary phenomenon. One guy had barbecued prime rib straight from the smoker; another, Croatian djumec. Love it. CHIEFS!! PRIEST HOLMES, BABY! Anyway.

Frank Prial reports that Smith & Wollensky is going to dump all foreign wines from its list and go pure American. Interesting, no? If this were an anti-French gesture it would bug me. I'm obviously no EU fan (see posts below), but the present Iraq war is far too sketchy[*] to justify the striking of ideological poses, no matter what Rumsfeld and the Weekly Standard say. However, that's apparently not the idea. S&W guru Alan Stillman says the move to an all-American list was in the works well before the shooting began. And there's certainly nothing wrong with celebrating America: having 650 domestic wines should enable S&W to offer great depth and range.

I'm not even done. Joan Nathan writes a slightly rambling but lovingly detailed remembrance of her mother's cooking, in time for Rosh Hashana (Times spells without the final "-h"; is that considered correct now? I get three times as many Google hits with the "-h" as without). There's also a visit to a timeworn Belgian ale tavern in a former ethnic Belgian neighborhood of Detroit. Nice regional reporting.

[*] Just to be clear: Given that our guys are over there, I'm rooting for them to kick ass, no question. I'm just not convinced yet that this war was a great idea from the standpoint of America's legitimate interests. I'm with Josh Claybourn, and Chronicles, and some of the Democrats in that respect.

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I Find That a Nice Big Zinfandel Goes Best With Corporate L&E

Sorry folks, it's been a few days.

I commend to your attention, the new blog of Prof. Steve Bainbridge of UCLA. It's "[a] corporate law professor's eclectic mix of law, business and economics, current events, and wine."

Professor Bainbridge has a great deal of interest to say about corporate law, economics, and the SEC, assuming you find these topics interesting, as I do. A decent place to start is with his law review article "Why A Board?", which tackles the surprisingly underexplored question of why the typical American business corporation is governed by a smallish, collegial committee -- the board of directors -- rather than, say, a Maximum Leader. He also has a one-volume treatise on corporate law and economics, which I cannot tell you about because I have just ordered it.

Drawing even closer to this blog's proclivities, Bainbridge also writes about wine. He is a port connoisseur who makes Dow's 20-year tawny his "usual tipple." I relish 20-year tawnies too, with their nutty, caramel flavors and their colors of autumn leaves. I usually favor W.J. Graham's , but that's partly because I can't always find Dow's. On the table wine side, sketchy early evidence suggests that Bainbridge's tastings may lean a little heavily on the California Cabernet side for my druthers (I'd like to see more zins and some pinots), but they are still useful.

Bainbridge is also that great rarity in today's secular legal academy, a Catholic conservative. He is a convert who writes, "I am the only person I know who came to Catholicism through economic analysis of corporate governance." That's just cool.

Coming up: redux of the NYT Dining Section (this week was better than last week); Why You Should Read the War Nerd; and D.'s strictures about my use of the phrase "Red America."

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Friday, September 19, 2003

An "eat your vegetables" week in the NYT dining section

Wednesday is New York Times Dining section day. My first reaction when I looked over the section this week was a sigh, for it featured an unusually non-sybaritic collection of articles. Most of the regular features were devoted to "off the beaten path" topics or cultural reportage, rather than the vivid and literate descriptions of the exquisite that keep me reading. The effect was like opening your window on a crisp October morning expecting a flourish of scarlet and orange, and seeing intead a field of rust-red. Not ugly, but not the foliage you were hoping for.

I'm a non-food snob who likes snobby food. Even though I can't dine at Everest and drink Grand Cru Alsatian riesling more than once per Presidential administration, I enjoy learning about them, and about comparable displays of excellence. My idealized NYT Dining Section would feature William Grimes updating Jean Georges's four stars, or maybe telling us about a more accessible yet polished gem like Wallse. Then the Wine Panel would offer a critical tasting of, say, '98 and '99 Chateauneuf-du-Papes from good producers, or Pinot Noirs from Oregon (they did that one recently). And Eric Asimov would uncover a great little Hungarian restaurant, creperie, or sushi bar in Brooklyn for the $25 and Under column. Toss in Nigella Lawson and some chef gossip from the delightfully named Florence Fabricant, and you're platinum.

That's not what we get this week.

The main review is of Rocco's, the recent site of an NBC reality TV show. (I have never heard of this show, but that's what you get when you secede from TV.) Grimes calls it "New York's first meta-restaurant." Hmm, I guess that's interesting. Foodwise, it sounds like a pretty standard red-sauce Italo-American.

The Wine panel fulfills its coverage obligations with a tasting of stouts. Good stout is a fine thing, but beer cannot elicit the transparent, lyric tones that characterize the best wine writing.

Next, the "on location" article is about country ham producers in NC who are learning to market their pungent, labor-intensive product to yuppies by selling it as a domestic prosciutto. This is actually well-reported and interesting, but country ham is, let us say, an acquired taste.

And the $25 and Under review is freaking Chipotle Mexican Grill! One has opened in Manhattan. This enables Asimov to make observations about how a mega-chain can offer a decent product yet still be insidious and destructive -- Starbucks is his obvious example. Fine. But Chipotle! I mean, we've got one of those just up the street from my mom's house back in the ancestral homeland. They make adequate burritos. It is what it is, to quote my man D. I don't need highly-paid Manhattanites to parse the cultural significance of Chipotle for me. What's next, a meditation on the TCBY stand in a Jersey mall?

All in all, an austere performance. There are a few consolations. Nigella's column is fine. One of Amanda Hesser's food pairings with the wine panel's stout beers is charming: "sauteed bratwurst served with good mustard and rye bread." Very gemutlich. Bring on the snow.

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Tuesday, September 16, 2003

Go Krona!

I'm away on business (back Thursday), so I can't post for long, but I do want to congratulate the Swedes for voting down the Euro last Sunday by a 58-42 margin.

The AP writer introduces a trickle of spin: the vote is described as a "setback for European integration," instead of, say, "a boost for Swedish sovereignty." The Brits, Swedes and Danes are described as "holdouts" from the Euro. And we get no quotes from locals praising the vote, just this:

"We have evidently not been able to firmly establish the European idea among the voters," said Alf Svensson, leader of the opposition Christian Democrats and a euro supporter. "People still seem to believe that we live in a Europe with national borders and national currency, but the reality is something else."

Not yet it isn't.

(To be fair, the AP does quote a Tory opponent of the Euro. He notes that the vote should embolden those who hope to keep Britain out of the clutches of "European integration.")

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Friday, September 12, 2003

Cool conference on state courts next Tuesday

(This post goes in the "law blogging, but not substantive law blogging" file, for those keeping score at home.)

Back in my Sub Judice days I did a little bit of posting about state courts -- in particular, about whether, and how, interpretive doctrines like textualism and originalism should govern decisionmaking by state court judges, who differ from federal judges in that they (1) have the power to make general common law and (2) often hold their offices by election. Such questions raise complicated issues about judicial review, separation of powers, and political obligation. I didn't sort them out to my satisfaction.

What's cool is that the Federalist Society is holding a conference on exactly this topic on Tuesday, Sept. 16, at Ave Maria School of Law[*] in Ann Arbor, Michigan: "State Jurisprudence, The Role of Courts, and the Rule of Law." I'd love to attend, but there's no way. Hopefully a transcript will be available.

Four different state supreme courts will be represented among the speakers, who include Justices Corrigan, Markman, Taylor, and Young of the Michigan Supreme Court, as well as former Howard Bashman 20 Questions interviewee Justice Kay Cobb of the Mississippi Supreme Court. Another notable speaker is Professor Stephen Presser of Northwestern, whose work I usually encounter in his role as legal affairs editor for Chronicles.

Any readers in the Detroit/Ann Arbor/U of M/Ave Maria orbit ought to check this out. Then send me e-mail.

[*] Steve (a/k/a Feddie) recently let us know that his former co-clerk on the Seventh Circuit has begun teaching trusts and civ pro at Ave Maria. Nice gig.

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Fantastic album: found

I've finally managed to track down a used CD copy of The Good Earth, by the Feelies (1986), one of the great out-of-print indie rock albums.

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The Guardian on the Swedish Euro vote

Really interesting rundown of the deeper issues behind the Swedes' vote on whether to scrap the krona for the Euro currency. (Link via Andrew Stuttaford on NRO's The Corner.) The vote is set for Sunday, and will go forward as planned despite the terrible murder of Anna Lindh, the country's foreign minister.

Lots and lots of Swedes don't like the Euro, or even the EU, which I find heartening. The issue seems to break down along the line that is far too typical for issues of consequence in the contemporary West: "There has been a problem. While the ruling business, media and political elite has been marching towards the single currency, the majority of the voters . . . have been marching in the opposite direction."

You don't say. Cf. race-based affirmative action; cf. US immigration policy; cf. religion and civic life.

"And what should make Britain's political establishment sit up and take notice is that opponents are not divided, and allies not united, along traditional, right-left lines. Something remarkable emerged in Sweden's euro debate, the crystallisation of a new set of political dividing lines, in which right-wing and left-wing activists find themselves in alliance against powerful, cross-border, private-public bureaucracies. On one side, the small, the local, the personal, the individual, the accessible, the familiar, the inherited; on the other, the big, the transnational, the impersonal, the mass, the remote, the alien, the acquired."

That is nicely put. Some days I think this is the only political division that matters anymore.

Media vibe is that "No on the Euro" actually has a chance of prevailing this Sunday. If the Swedes say no, the odds that the Brits will continue to say no to the euro (and EU consolidation) improve as well. Americans should find this a hopeful prospect. We need our friends.

UPDATE: Speak of the devil. The notion that Blair wouldn't allow the British to vote before undertaking such a concededly massive surrender of sovereignty is just amazing. It's scary and it's contemptible. Give them a referendum.

You know, I recall that around 230 years ago, a certain population of Englishmen got so angry at the depredations of their increasingly non-representative government that they took to the streets, raised a massive ruckus, dumped tea in the harbor ... Here's to another surge of the spirit of English (and Scottish) liberty.

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