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Tuesday, Jul 29, 2003
LA aliens
Gumma sends this LA Times story about illegal aliens depressing wages in California.
Avoiding RIAA legal attacks
John sends this article on strategies for avoiding legal problems with P2P file sharing. It refers to advice such as this from EFF.

This advice could be better. I would suggest taking advantage of some safe harbors in the existing law. In particular:

  • List a DMCA agent for copyright complaints under 17 USC 512.
  • Use a digital audio recording device for ripping, and/or a digital audio recording medium for storage, as sheltered by 17 USC 1008 (AHRA).
  • Date your copying, so you can take advantage of the 3-year statute of limitations.
  • Be able to explain why your usage might qualify as fair use.

    The advantage of listing a DMCA agent is that a copyright owner would have to serve notice before suing, and there is no liability if you comply with the notice.

    The definition of a qualifying device or medium under the AHRA is a little tricky. The AHRA requirements are on manufacturers, not consumers. A court has held that the typical home computer that mixes programs with MP3 files on the same hard disk is not an AHRA device. But a CD-RW, extra hard disk drive, ripper software, etc. might be. Also, there are music CD-Rs that are commonly sold, and music royalties have already been paid so you can legally copy music onto those disks.

    It has now been 3 years since Napster was first shut down, and no Napster users were ever sued, so most music obtained with Napster should now be legal. (But the music may not be legal to sell under 17 USC 109.)

    Determining fair use is complicated and uncertain. Some indicators are: Did you download the music as a substitute for buying it? Did you use it for commercial purposes? Most people were downloading for personal use only, and they only did it because there was no way to pay for a similar service.

    Users can also use small private networks, as described in this CNN story.

    Adm. Poindexter
    Another idea for Adm. John Poindexter and Darpa has generated more controversy: monetary bets on possible terrorist attacks as a means for risk assessment. See comments here. If you wanted a good opinion on who was going to win the Super Bowl, would you ask a player or a sportswriter? No, the best predictions come from the Las Vegas betting lines.

    Update: This Slate article lists all sorts of interesting things that you can bet on.

    Liza writes:

    Is anyone else in the group as nonplussed as I about this ridiculous idea? What were they thinking of? Somebody in the Pentagon (probably Poindexter) should get fired.
    Joe says that there is a good discussion at http://www.chicagoboyz.net/. That blog has links to some good articles.

    I think that Poindexter had a great idea. A futures market is an efficient way of assimilating info, and would probably be a lot more reliable than CIA predictions.

    I see lots of criticism, but very little on precisely what is bad about it. Some say that it is morally repugnant to bet on disasters, but there are all sorts of ways that people can bet on disasters already, and some of them help our economy run more smoothly. Eg, see Slate article.

    Some say it is difficult to explain it to Arab diplomats, but so are 1000s of other things. Some say that terrorists might trade, but that would be foolish because they would expose themselves and they could more easily make more money by shorting stocks or other securities.

    So what precisely is your objection? Does it also bother you when a farmer buys a future that only pays off in the event of bad weather?

    Poindexter is running a research agency. You don't fire researchers just because you don't like their ideas. It is his job to come up with new ideas, and someone else's job to decide whether to fund it.

    Liza writes:

    It is a terrible idea. None of the examples of futures markets listed by the sites recommended by Roger and Joe is analogous. For the government to set up a mechanism that enables some people to profit from other people being deliberately blown up is reprehensible. You cannot currently bet on murder. The other existing futures markets cited relate to natural disasters or general market risk, not murders in particular.
    Do you have a problem with life insurance? It is common for employers to buy life insurance on employees. Liza, your firm could have bought a policy in your name, without telling you, and the firm would be paid off if someone murdered you. Is that reprehensible? If so, why doesn't anyone object?

    Joe writes, "Well, you do have to have an insurable interest."

    John writes:

    Actually, people have objected to employers buying life insurance on low-level employees (a.k.a. janitor's insurance), often without even telling them, then collecting the proceeds when the employees die for any reason.

    The Wall Street Journal publicized the little-known practice with a series of articles, which were predictably followed by efforts in Congress to eliminate it.

    Companies have no legitimate insurable interest in this type of insurance, which is purchased solely to gain the federal tax benefits for life insurance. (Unlike key-man insurance on top executives or split-dollar insurance which is provided as an employee benefit.)

    Now, Poindexter has just resigned.

    Andy writes:

    Poindexter is a conservative genius. He's the guy the liberals are determined to get, and the latest flap is yet another example. It's disappointing that Roger is the only person here supporting Poindexter.

    Like Poindexter's Star Wars idea (it's debatable how big a role Poindexter had), his terrorism market idea harnesses the power of free enterprise. It would add a much-needed reality check to the ridiculous overhype of terrorism. The real risk of dying in an airplane crash from terrorism is essentially zero, yet the media and politicians kill our economy by inflating that risk to absurd proportions. Let people buy and sell options on terrorism attacks, and then we can see how unlikely they really are. The entire economy could be lifted by this exercise.

    As I told Roger tonight, there is still no evidence that (1) the 9/11 attacks, (2) the sniper attacks, and (3) the anthrax killings had anything to do with terrorism. The anthrax was obviously by a rogue government researcher obsessed with his power. Roger guaranteed us a year ago there would be arrests, but of course there have not. I think Liza claimed bin Laden was behind the anthrax, but that doesn't stand up. It's too embarrassing for govt to get to arrest its own. As to the sniper attacks, there were by a deranged male couple with no apparent connection to any terrorist groups.

    9/11? As I've said for two years, it has the look and feel of the Columbine killer mentality. A handful of misfits, young males obsessed with evil. A leader in his 30s with a Satanic vision, he conspired with and led a half dozen or so others, and they carried their comrades along unwittingly for the ride. After all the investigations and time, there is still nothing tracking this gang to backing by a foreign terrorist network. If there was real evidence, we'd be hearing about it. There isn't. We're still waiting for that promised "white paper" by Bush/Powell, and you can bet it will never be released.

    One aspect of 9/11 that intrigues me is this how could a plane going 500-600 miles per hour turn into and hit a relatively narrow target like a bullseye? Imagine if you were driving a car at that speed. Could you swerve into and hit a specific telephone poll head-on? Difficult to imagine how.

    Back to Poindexter. I think free enterprise is what we need to combat the devastation of terrorism-hype on our economy. Let's allow trading on an option for airplane crashes caused by terrorism and watch its value fall to zero -- and then see some restoration of sanity to our economy.

    I'd like to see conservatives defend Poindexter against the liberal witchhunt. The latest prediction that he'd resign appears to be by a Bush insider, and it should be criticized. Bush needs more bright conservatives like Poindexter.

    Here is liberal Republican Warner's view the program is "a rather egregious error of judgment.'' Barbara Boxer leads the charge there was "something very sick about it'' and whoever was behind it should be dismissed. Of course, she knows Poindexter is behind it and liberals want his scalp -- again.

    The system is explained "DARPA and two private partners would have set up an Internet futures trading market on events in the Middle East. Traders could have bought and sold futures contracts based on their predictions about what would happen in the region. Examples given on the market's Web site included the assassination of Palestinian leader Yasser Arafat and a biological weapons attack on Israel."

    It only takes one sentence to justify it, as reported by AP News "The idea was that investors' choices could reveal information unavailable elsewhere."

    Exactly. Free enterprise at its best providing high quality information based on the unbiased view of millions, rather than having to rely on distorted information by a few dishonest governments.

    Apis writes, sarcastically:
    Yeah, that'll teach those idiotic bureaucrats at DARPA to think outside the box.

    In accordance with Senator Feinstein's edict, the next person at DARPA who comes up with some wacky idea will also be fired...

    Good thing Feinstein wasn't around in '67 when Vint Cerf proposed the internet. I can just imagine her comments. "What? An uncontrollable, decentralized computer network run by the government, with a computer in every home? Why, it would be Orwellian. A statist nightmare. I demand that DARPA fire the fiend in human form who came up with this horrible idea..."

    Update: Pat Buchanan has a good column on the subject. He says:
    The principle on which DARPA, the Defense Advanced Research Projects Agency, was improvising and building is an undeniable one: Markets are far superior to bureaucracies in predicting the future. Markets will ferret out secrets before keepers want them known.
    He's right. Poindexter was attacked because his scheme was a threat to out-of-touch govt bureaucrats in the CIA and elsewhere.

    Monday, Jul 28, 2003
    Immigration and labor shortages
    Liza writes:
    Yesterday Roger and I had a discussion about some of the abuses going on in immigration and guest worker programs. Roger argued that there can never be any such thing as a "labor shortage" that needs to be addressed by immigration or guest workers (as opposed to paying higher wages to Americans). I subsequently checked out a couple of immigration procedure web sites.

    I think Roger does not sufficiently appreciate how longstanding and well-established in our immigration law is the idea that immigration may be used to address labor shortages. It's not just the guest worker programs that has Roger so exercised. Those programs may well be bad because no one is enforcing the law about showing a labor shortage in the specific case of computer programming (although I noticed there are contrary web sites dating from about 1999 decrying a big shortage in that industry). However, in attacking the notion that there can ever be a labor shortage, Roger is attacking the basis of a large category of legal immigration that has traditionally been considered positive.

    There are only a few categories of legal immigration (i.e., for those who wish to stay and become American citizens), and while the details are tweaked every so often the general categories have been around a long time. These categories mostly relate to the immigration lottery, family relationships with Americans, refugee status, and employment. The employment subcategories vary (often requiring advanced degrees and the like), but in general they also require a showing that a labor shortage exists. Roger argues that any labor shortage can be immediately solved by raising the wage rate. If his argument had prevailed (and unions have always made that argument to oppose immigration), we would have lost out on most of the best-educated, hardest-working, non-welfare-receiving immigrants who came in during the last several decades. I think Roger needs to be careful about arguing against the whole basis of this type of immigration. In saying that a labor shortage is economically impossible, in the context of the guest worker visas, you are implying that it is impossible in the context of legal immigration as well.

    I can remember doing one immigration application for a client about 15 years ago. A rich client brought in a horse trainer from Ireland on a temporary basis, to deal with his expensive horses, and wanted to find a way to keep the trainer (who, though uneducated, really was knowledgeable about a certain fancy horse breed) in this country. Not only did the INS make us advertise to determine if the position could be filled locally; it then rejected the application even after nobody responded to the ad, on the basis that the ad was too restrictive and the employer wasn't trying hard enough to find a local. The INS agent implied that the employer just wanted to have cheap foreign labor he could exploit. At least at that time, the INS was trying (too hard, I thought) to enforce the labor shortage standard of the law.

    Lots of economic factors can produce labor shortages in a particular locality. For example, the credentials required may take a number of years to achieve and the profession may consciously restrict the output of the professional schools (this certainly happens in medicine). The locality may be a rural area that is undesirable to people with a professional degree. The work may be work that Americans just won't do (e.g., manual labor outdoors in the sun all day - which is why California has always had to bring in Mexican farm laborers and antebellum Southern plantation owners brought in African slaves). A burst of demand in a particular sector (such as programming and web site design) may not be solvable in two months because you need people with technical degrees to do the work. While America permits labor mobility, most people don't want to move. Sure, doubling the wage might solve the problem, but that would wreak havoc on the employer's organization and bottom line. It is not a viable solution.

    If we want to have any "good immigration", we should not throw out the employment categories of legal immigration, as would be the logical consequence of Roger's argument.

    John responds:
    Liza's argument would be well taken if the U.S. immigration was limited to a reasonable number, so that we could exercise a high degree of selectivity to fill a few available slots.

    The problem is that U.S. immigration is totally out of control. The numbers of people coming in are far, far in excess of any reasonable or tolerable number - far greater than ever before in U.S. history.

    So the first step is to get a grip on the numbers. Once that is done, then we can discuss *who* should be allowed in.

    First things first the overall number has to be cut by at least 80%.

    Sure, you can find complaints about all sorts of people -- nurses, farmworkers, construction workers, eligible people of the opposite sex, etc.

    The impossibility of a labor shortage is a basic fact of economics. Saying there is a labor shortage is about like saying that there is a shortage of good programs on TV, or an oil shortage. There is plenty of supply and demand, and minor fluctuations only affect the price a little bit.

    We can debate what the optimum levels of immigration and guest workers should be. Maybe it is in US interests to bring in cheap labor in order to depress the wage levels in a certain market. That is the effect. But if you say that the workers are filling a labor shortage, then you sound like someone who flunked Econ 101.

    The stated purpose of the H-1B program is to fill a labor shortage. It is a 100% lie. There is no labor shortage. The true purpose of the program is to depress wages. Gumma is quite correct to explain this.

    INS cannot cope with determining whether someone has good horse-training skills. So they look at credentials like college degrees. I am sure that is why the trainer was rejected. But do you really think that we don't have any American horse trainers who can do that job? I don't.

    So Liza wants to artificially restrict the number of Americans who can become physicians, and then make up the difference with foreigners? That makes no sense to me.

    The foreigners with professional degrees are not moving to rural areas.

    Maybe people in St. Louis don't want to move, but here in California people move all the time. A large reason for the success of Si Valley is that people very readily move from job to job and from one area to another. 100s of 1000s of foreign workers have been brought into Si Valley precisely because the local workforce is too mobile. Employers like the H-1B workers because they are like indentured servants who cannot quit. If they quit or get fired, then they get deported. (Or they are supposed to be, anyway.)

    I am not in favor of abolishing immigration. I favor abolishing the H-1B and L-1 programs, and reducing legal and illegal immigration to manageable levels.

    I agree with John. No one is advocating unlimited immigration, except for a few Libertarian kooks who think that foreigners should have as much right to live in the USA as American citizens. No one is against all immigration. The debate is about the numbers.

    Current US policy results in about 2M immigrants a year. Cutting that by 80% would still allow 400k a year. That is plenty, and would be enough to fill any labor shortage, if indeed there were one.

    So what is the argument for more than 400k per year? Liza's main argument seems to be that additional foreign workers would serve to further depress wages. The next question is How many workers do you want to bring in, in order to achieve your wage depression goals?

    Legal challenges to the Recall
    Gray Davis and his allies are trying to use the courts to fight the recall vote. One challenge was based on the fact that a handful of signatures were collected by a convicted felon with a record of previous election problems in another state. I think that it was a setup. It later turned out that the felon was being paid by Davis's organization. The recall forces collected 1.6M signatures, with 1.3M verified, so minor irregularities about a few signatures are meaningless. They only needed 900k signatures.

    Here is another wacky challenge from a couple of idiot law profs. They think that it is unfair that voters have to vote on the recall before they can vote on a replacement for the governor. They say:

    Absent some compelling interest, the state cannot force voters to either speak up or lose their voice.
    Who is going to take the trouble to vote in a special recall election, and then abstain on the recall? It would be easier to argue that the Davis supporters should not be allowed to vote on a replacement. In a way, they get to vote for 2 governors, Davis and another. Others just get to vote for 1.

    Update: A judge was just persuaded by this wacky challenge:

    U.S. District Judge Barry Moskowitz said voters will be allowed to cast a ballot for a potential successor to Davis even if they do not vote on whether he should be recalled. Under the state law, voters could choose "yes" or "no" on whether Davis should be recalled. Only voters who cast a "yes" or a "no" could choose a potential successor from a list on the same ballot.
    The Davis-controlled California lawyers did not really defend the law, and may derail any appeal. This is an example of a leftist activist judge trying to help the Democratic party.

    Sunday, Jul 27, 2003
    Job losses
    John sends this article about San Jose bay area job losses. The numbers are huge, but they about match the number of foreign workers brought in under H-1B and L-1 visas, supposedly to remedy a labor shortage. There was no labor shortage. All of the San Jose bay area congressmen should be voted out of office.

    George writes:

    You mean the San Francisco Bay Area? That article is not just about San Jose, and it doesn't even mention foreign workers.
    Yes, funny it doesn't mention foreign workers. The topic is too sensitive for that newspaper reporter, I guess. How can he write a whole article about the unemployment situation, without even mentioning the cause? There was an extraordinarily large influx of foreign workers several years ago, as a result of a special govt program to bring in cheap labor. But for that, we'd have no unemployment.

    The US Census bureau calls it the San Jose-San Francisco-Oakland metropolitan area. I just call it the San Jose Bay Area. San Jose is the city that dominates the area in terms of population, business, money, and culture. San Francisco is now a distant second.

    Modern-day Kinsey
    J. Michael Bailey is trying to be sex expert like Kinsey, and has published his own theories, studies, and experiments. They are provocative and controversial. Here is a summary.
    Recovered Memories
    A NY Times Magazine article about psychology researcher Susan Clancy. She did a clever experiment that show that people who claim to have recovered memories were more likely to have faulty memory processes. She got similar results with those claiming to be alien abductees. Now she hated by an assortment of academic goofballs, ranging from Freudian to UFO trackers, who think that she has attacked their credibility.

    Saturday, Jul 26, 2003
    Michigan Affirmative Action
    John responds to Andy:
    The Fourteenth Amendment, passed to eradicate racial discrimination, mandates that "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." This straightforward command is the flashpoint in racial disputes over hiring, firing, electing, granting admissions, sentencing, and most other institutional decisions.
    I don't agree that the quoted phrase from the 14th Amendment is "straightforward." OTC, it is among the most debatable provisions of the Constitution.

    You say the 14th was "passed to eradicate racial discrimination," but offer no authority for that statement. It certainly is not the plain meaning of the words. The definitive interpretation by the Supreme Court (Civil Rights Cases, 1883) was that 14th does *not* authorize Congress to eradicate racial discrimination.

    Contrast the vague and debatable 14th Amendment with the clear and unambiguous Title VI of the Civil Rights Act of 1964

    "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

    It's a mystery to me why this statute was not dispositive of both Michigan cases. Title VI is not based on the 14th Amendment, but on Congress's spending power of Article I, Section 8.

    Liberals argue that this Amendment allows or even requires the use of racial preferences to increase ethnic diversity in classrooms, legislatures and boardrooms. Conservatives counter that it protects every individual ("any person") against race-based selection, regardless of the purpose.

    Enter the University of Michigan into this conflict. Their undergraduate school assigned an automatic 20-point bonus to minority applicants based solely on race, without any consideration of background or skills of the applicant.

    That constituted a hefty 20% of the total of 100 needed to guarantee admission. Rejected students not benefitting from this windfall sued, and the Supreme Court recently invalidated this preference. Gratz v. Bollinger, 156 L. Ed. 2d 257 (June 23, 2003).

    Chief Justice Rehnquist penned the opinion for the Court, joined by Justices O'Connor, Kennedy, Scalia and Thomas. Many of them also wrote separately, and Justice Breyer also concurred, extending the majority's margin to 6-3.

    The "automatic distribution of 20 points has the effect of making ˜the factor of race ... decisive,'" and thereby unconstitutional. Id. *48 - *49. The Chief Justice was quoting Justice Powell's concurrence in the famous case of Regents of Univ. of Cal. v. Bakke, which invalidated quotas but allowed the use of race as a non-decisive factor in admissions. 438 U.S. 265, 317 (1978).

    Yet this was a bittersweet victory for those opposing affirmative action, because it allows less overt racial preferences in admissions and, by extension, in business. Then the other shoe fell at the Court when it embraced a quota-like system in the related case of Grutter v. Bollinger, 156 L. Ed. 2d 304 (June 23, 2003).

    Justice O'Connor switched sides to write the Grutter decision, joined by liberal Justices Stevens, Souter, Ginsburg and Breyer. The Court affirmed the admissions process at the University of Michigan Law School against a challenge by Barbara Grutter, a white Michigan resident rejected despite having a 3.8 grade point average and an LSAT test score of 161 (high 80s in percentile).

    The law school is highly competitive, accepting only 10% of applicants. Ms. Grutter was apparently not in the top 10% in her LSAT score, and with grade inflation her average was not as stellar as it appears.

    I object to the faint put-down of Barbara Grutter because her scores were less than "stellar." That conclusion is reached only by comparing her to other white applicants - precisely the point at issue here. Her record would indeed be "stellar" when compared to minority applicants.

    Furthermore, disparaging Grutter's scores encourages the erroneous (though widely held) notion that the Michigan plaintiffs and their conservative supporters want applicants to be solely on the basis of the scores.

    In fact, opponents of affirmative action fully support the use of a variety of factors in admission - just that race can't be one of them.

    The Michigan plaintiffs fully support the goal of classroom diversity on factors other than race. That's why Grutter was seen as an ideal plaintiff her entire record had other factors that should have helped her admission if the school was honestly seeking non-racial diversity. Those factors were disregarded because she had the wrong skin color.

    But some minority applicants were admitted with lower grades and LSAT scores than Ms. Grutter's, and the school insisted this was necessary to attain racial diversity in the classroom.
    "some"?? Didn't all or nearly all the admitted blacks have lower scores than Grutter's?
    In contrast to the undergraduate program, the law school feigned a highly individualized consideration of students allowing race as only one of many factors.

    In dissent, the conservative Justices decried both the factual and legal premises of this ruling. Factually, the data showed that the law school was using a quota-like system between 1995 and 1998, the percent enrollment by minority students was 13.5%, 13.6%, 13.8% and 13.8%, and it is struthious to pretend this was not a quota.

    Never before has racial diversity been an acceptable justification for a discriminatory process. One wonders now if there are any remaining legal protections against outcome-based racial balancing.

    I read the SC as saying that racial discrimination is ok as long as (1) you use euphemisms like "critical mass" instead of "quota"; and (2) you obscure the precise discrimination mechanisms, so that it is hard for any individual to be sure that he has been discriminated against. Then it's legal, according to the SC plurality.

    Andy responds:

    John wrote, "I don't agree that the quoted phrase from the 14th Amendment is 'straightforward.' OTC, it is among the most debatable provisions of the Constitution."

    Not in the view of conservatives. It's difficult to imagine a simpler and clearer mandate than the one quoted above.

    John wrote, "You say the 14th was "passed to eradicate racial discrimination," but offer no authority for that statement. It certainly is not the plain meaning of the words. The definitive interpretation by the Supreme Court (Civil Rights Cases, 1883) was that 14th does *not* authorize Congress to eradicate racial discrimination."

    The 14th Am plainly was passed to eradication discrimination from state laws. The case you cite merely refused to apply it to private life, but that's not an issue here.

    John added, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." It's a mystery to me why this statute was not dispositive of both Michigan cases. Title VI is not based on the 14th Amendment, but on Congress's spending power of Article I, Section 8.

    This civil rights language is too broad to be helpful. Both a white and a black applicant for a single spot could cite it. Federal regulations under Title VI interpret this to include disparate impact, for example.

    John wrote, "I object to the faint put-down of Barbara Grutter because her scores were less than "stellar." That conclusion is reached only by comparing her to other white applicants - precisely the point at issue here. Her record would indeed be "stellar" when compared to minority applicants."

    Grutter was below the top 10% of all applicants, combining the races. To be objective, this needs to be disclosed. After all, aren't we talking about merit?

    John adds, "Furthermore, disparaging Grutter's scores encourages the erroneous (though widely held) notion that the Michigan plaintiffs and their conservative supporters want applicants to be solely on the basis of the scores. In fact, opponents of affirmative action fully support the use of a variety of factors in admission - just that race can't be one of them."

    No, I disagree. Many conservatives oppose, and should oppose, basing admissions on other liberal criteria like social work or politically correct activities. Preferring female athletes or male athletes in obscure sports is worth criticizing.

    John adds, "The Michigan plaintiffs fully support the goal of classroom diversity on factors other than race. That's why Grutter was seen as an ideal plaintiff her entire record had other factors that should have helped her admission if the school was honestly seeking non-racial diversity. Those factors were disregarded because she had the wrong skin color."

    Ah, perhaps Grutter wants affirmative action for females, but not for blacks??? Maybe affirmative action for social workers?

    John asks, "'some'?? Didn't all or nearly all the admitted blacks have lower scores than Grutter's?"

    I don't know. You can check the opinion if you think it says (I doubt it). I'm sure many minorities, the term I used, beat her on the scores.

    John replies:
    Not in the view of conservatives. It's difficult to imagine a simpler and clearer mandate than the one quoted above.
    Difficult to imagine? I quoted a far simpler, clearer, and unambiguous mandate Title VI. Andy, you're just blowing smoke here. There is no plain meaning of the words of the 14th Amendment. Also, there is no generally accepted conservative view of the amendment. I challenge you to state what you think is the plain meaning.
    The 14th Am plainly was passed to eradication discrimination from state laws. The case you cite merely refused to apply it to private life, but that's not an issue here.
    You now say the 14th was passed to eradicate discrimination FROM STATE LAWS. But that's not what the column says! Even your revised statement isn't "plainly" the purpose of the 14th, and you still offer no supporting authority.

    Nor do you show how the purpose of eradicating discrimination "from state laws" has anything relevance to this case. No Michigan law was at issue here. No one claimed any Michigan law is discriminatory.

    This civil rights language is too broad to be helpful. Both a white and a black applicant for a single spot could cite it. Federal regulations under Title VI interpret this to include disparate impact, for example.
    I can't make sense of this. Too broad to be helpful - what does that mean? On what basis could a black applicant sue the University of Michigan? Why is it relevant that the regs under Title VI allow disparate impact? The Michigan cases alleged intentional discrimination, not disparate impact.
    Grutter was below the top 10% of all applicants, combining the races. To be objective, this needs to be disclosed. After all, aren't we talking about merit?
    Actually, no, we're not talking about merit. We're talking about racial discrimination. Conservatives never claimed - and the lawsuit did not allege - that Grutter's admission was required by a pure "merit" standard. Neither the Constitution nor federal civil rights law requires state or federally funded colleges to use a pure merit standard of admissions.

    Hence, I repeat, to disparage Grutter's grades or scores as less than stellar is harmful, hurtful, inflammatory, and entirely irrelevant to this case.

    No, I disagree. Many conservatives oppose, and should oppose, basing admissions on other liberal criteria like social work or politically correct activities. Preferring female athletes or male athletes in obscure sports is worth criticizing.
    Conservatives may or may not oppose such criteria, but they are clearly permitted by the 14th Amendment or federal civil rights law. Hence, they are irrelevant to this case.
    Ah, perhaps Grutter wants affirmative action for females, but not for blacks??? Maybe affirmative action for social workers?
    How dare you suggest that Barbara Grutter was asking for some kind of affirmative action? That is an insulting lie. All she asked was that her race not be held against her in the admissions process.

    If the school's policy was to admit students solely on the basis of "merit" (LSAT and GPA), she would have had no case. But that isn't the school's policy. Grutter had the right to be considered, under the school's admissions standards, the same as persons of other races.

    The Rehnquist dissent makes it clear that in the period 1995-2000, a black applicant with scores (LSAT and GPA) comparable to Grutter's was virtually guaranteed to be admitted.

    The precise answer requires more research, but I think you again disparage Barbara Grutter by saying only that "some" minority applicants were admitted with lower scores.

    Andy responds:
    John makes two substantive arguments. First, that he likes Title VI more than the 14th Amendment, and thinks Title VI should have been applied in the Grutter case. Second, John objects to the mere disclosure of how Grutter's own GPA and LSAT scores were below the top 10% of law school wannabees.

    I disagree on both these points.

    Conservatives opposed Title VI in 1964 and oppose its use for racial balancing today. Its federal regulations require avoiding disparate impact. I don't know why John would want to rely on it rather than the 14th Amendment.

    As to John's second point, Grutter apologists cannot censor disclosure of her own grades and scores. Her case puts that directly in issue, and it's senseless to try to keep that out of the discussion.

    Grutter points to a minority with lower scores who was admitted, but you need to concede and rebut the issue of why Grutter should be considered over nerdy white male with higher scores.

    John is referring the clarity of the text. The 14A is hopelessly ambiguous, as shown by the long court confusion about whether it incorporates the Bill of Rights.

    Andy is trying to bring in irrelevant side issues, like whether conservatives wanted that 1964 Act then or now. The fact is that it is the law, and the courts should apply its plain meaning (unless that law is unconstitutional for some reason).

    I agree with John that Andy is misdirecting the issues here. Michigan does not rely solely on scores for admission, and nobody says that the law requires strict adherence to scores. Under the law, U. Michigan can give precedence to state residents, alumni kids, football players, or anyone else, as long as it does not apply discrimination based on race (or sex, religion, etc). It does not have to admits students with perfect LSAT scores.

    Michigan's main argument was that it needs to apply racial quotas (which it prefers to call "critical mass") in order for the law school to maintain high status among liberal elites. Those liberal elites will only give the law school a high ranking if the student body has high average scores and an ethnic makeup that reflects the larger population. The only way the law school has figured out how to do that is to admit high-scoring whites and numerical quotas for other groups.

    U. Michigan could presumably admit people based on good looks, if it were possible to do that without race or sex discrimination. The clothing chain Abercrombie And Fitch has admitted that it hires clerks based on looks!

    John responds to Andy:

    I challenge Andy to name the "conservatives" who opposed Title VI in 1964. Certainly not Goldwater, who said "With the exception of Titles II and VII, I could wholeheartedly support this bill..."

    With a strong civil rights record himself, Goldwater had no problem with the provisions that applied to government or recipients of federal funds. He objected to Titles II (public accommodations) and VII (employment) because their validity rested on Roosevelt's revolutionary reinterpretation of the commerce clause. That is what gave Congress the power to regulate not just interstate commerce itself, but anything that can be said to indirectly "affect" commerce.

    I strongly disagree that a comparison between Grutter and a hypothetical "nerdy white male with higher scores" is relevant. Neither the Constitution nor conservative policies require schools to admit students on scores alone.

    Although Grutter's scores were slightly less than "stellar," you can't stop there without unfairly prejudicing her case. You have to also mention that her record included the kind of additional facts which would have gained her admission according to the school's own stated goals of (non-racial) classroom diversity.

    Grutter's rejection proves that the school's pretended goal of seeking a class of diverse experience is just a pretext for racial discrimination. The facts were so stark that Michigan knew they could not survive in court. That is why they had to come up with a new theory called "critical mass" to justify what they had done.

    Andy responds:
    Conservatives did oppose the Civil Rights Act of 1964, though I cannot parse that opposition title by title.

    The Supreme Court has reiterated that Title VI is coterminous with the Equal Protection Clause so John's point is moot anyway. See Bakke at 287 (opinion of Powell, J.) ("Title VI . . . proscribes only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment") (reaffirmed in Grutter). If John is invoking Title VI to help Grutter, then he must think Title VI goes further than the Equal Protection Clause, which is illogical and not something I'd support.

    John wrote, "I strongly disagree that a comparison between Grutter and a hypothetical "nerdy white male with higher scores" is relevant. Neither the Constitution nor conservative policies require schools to admit students on scores alone. Although Grutter's scores were slightly less than "stellar," you can't stop there without unfairly prejudicing her case. You have to also mention that her record included the kind of additional facts which would have gained her admission according to the school's own stated goals of (non-racial) classroom diversity."

    Grutter's scores are relevant. Surely Roger and John will concede that. In fact, her entire case depends on a comparison between her scores and those of other applicants.

    But why should we let Grutter choose whom to compare her scores against? Any objective observer should be free to make their own comparisons.

    John keeps referring to "additional facts" that would justify Grutter's tepid scores. Perhaps she was an outstanding synchronized swimmer? Winner of a Sanskrit poetry contest?

    Roger writes, "U. Michigan could presumably admit people based on good looks, if it were possible to do that without race or sex discrimination."

    But that's exactly the point -- was Grutter the beneficiary of affirmative action for women? Would she and her backers object to that pervasive form of affirmative action? Would others here object to it? Disclosure of her scores is essential to allow these valid inquiries.

    John responds to Andy:
    Conservatives did oppose the Civil Rights Act of 1964, though I cannot parse that opposition title by title.
    Why bother? I already did it for you.
    The Supreme Court has reiterated that Title VI is coterminous with the Equal Protection Clause so John's point is moot anyway. See Bakke at 287 (opinion of Powell, J.) ("Title VI . . . proscribes only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment") (reaffirmed in Grutter). If John is invoking Title VI to help Grutter, then he must think Title VI goes further than the Equal Protection Clause, which is illogical and not something I'd support.
    Title VI gives clarity and specificity to the EP clause, whose meaning is otherwise ambiguous and opaque. That is hardly illogical, and Andy does not explain why he would oppose it. As Andy says, the Powell opinion in Bakke (where Powell spoke only for himself) has now been adopted by the 5-justice majority in Grutter (in which O'Connor's ridiculous opinion was joined by the 4 liberal justices). Such is Andy's dubious authority for declaring that Title VI is "coterminous with the EP clause"!
    Andy responds:
    I disagree with John's view that "Title VI gives clarity and specificity to the EP clause." Legislation cannot and should not "give clarity" to the Constitution. Moreover, Title VI has been interpreted to support disparate impact tests, and is not something conservatives support. Also, Title VI was not a factor in the decision, nor should it be. Congress shouldn't be telling Michigan how to run its admissions.

    John and Roger ducked the issue of affirmative action based on gender. This is of far greater concern to Eagle Forum than racial discrimination. Apparently no one else in this group (other than me) is willing to speak out against affirmative action based on gender. Grutter's case is based on her scores, and the column should disclose those scores (as the Supreme Court did). I oppose censoring that pivotal information from the column.

    Friday, Jul 25, 2003
    Electronic voting is insecure
    Some computer security researchers have exposed a number of gross insecurities in electronic voting equipment used in Georgia and elsewhere. Here is the paper. The technology is available to handle voting fairly securely, but it is not in use, and official elections should not use electronic voting yet. It is just too easy to fake the results.

    Update: John sends this WashPost story about a lot of election officials now getting worried about electronic voting machines.

    Kobe Bryant's accuser
    Radio talk show host Tom Leykis has named the Kobe Bryant accuser as 19-year-old Katelyn Faber. Some web sites had pictures of the wrong girl.

    Faber has made an accusation that could send Bryant to prison for life. There is no evidence, except for her testimony and credibility. Because of the rules of evidence, stories about her promiscuity and suicide attempts may not be admissible in court.

    Joan writes:

    There's more than her testimony and credibility, Roger. There's circumstantial evidence, e.g., the fact that (apparently) the young woman was summoned to Bryant's suite (it will be interesting to find out whether Bryant specifically requested that she come or whether the request was simply that *someone*, i.e., anyone, come), the complaints of those who summoned hotel security because of the noise emanating from Bryant's suite, and the testimony of those who saw the woman as she left the suite. There's also, apparently, a fair amount of physical evidence to corroborate her story. (Okay, so her injuries could have been self-inflicted. If so, she has some profound mental problems which she might eventually overcome. I think it's less likely Bryant's stupidity can be.)

    I doubt Hurlburt (the D.A.) would have filed charges if he didn't think he had a strong case--if he had determined it was too much of a "he said/she said" situation.

    Let a jury decide. As for Leykis... [see this criticism]

    BTW, where have you run across *any* allegation that the alleged victim was promiscuous? (Leykis? An internet forum?)

    Maybe I jumped to conclusions. I assumed that she was some sort of basketball groupie who was there voluntarily. I hope there is enough evidence for the jury to sort it out.

    Bob writes:

    Leykis interviewed someone who sang in the choir with Kate Farber on his show last week. The information came from the LA Times. The woman he interviewed claimed to have attended a party at which MS Farber striped. You should have a link to the right picture. I googled kate farber and hit some great pictures of the "wrong" girl. Metable.
    Maybe you are misspelling her name.

    Bob writes:

    The Kobe Bryant defense team should look into whether the alleged victim saw "The Life of David Gale" last February and whether she commented on the movie to her friends. The plot of the movie hinged on a young woman who set up and accused a man of rape.
    Oct. 7 recall vote
    There is life at the end of the tunnel. On Oct. 7, we Californians will have a chance to out Gov. Gray Davis.

    Davis is about to hold a news conference. He has made his whole career on negative campaigning, and has only ever won anything based on lesser-of-2-evils arguments. Bill Simon was way too nice in the last campaign. Davis is finally going to get what he deserves.

    Charlie writes:

    The problem with this recall, IMHO, is that recalling a govenor for anything less than being caught shooting up heroin/raping widows and orphans, etc., is that it sets a precedent. What's to stop the Democrats from recalling every Reb. govenor elected in the next 50 years? It only takes 1,000,000 signatures, right? The dems can get 1,000,000 signatures in the Bay Area alone at the drop of a hat.
    That precedent has been set. There have already been attempts to Gov. Ronald Reagan, Pete Wilson, etc. They didn't get enough signatures.

    Similar arguments were made during the campaign to kick Calif. chief justice Rose Bird out. What if every judge has to worry about being recalled after a controversial decision? That was about 20 years ago, and there has been no big rush to oust judges. Bird was just particularly bad.

    Tuesday, Jul 22, 2003
    Gun rights appeal
    John sends this Wash Times story about disagreements among gun-rights advocates. As I read it, some libertarian ideologues want an unconstitutional gun control law so they can take a test case to the US Supreme Court (SC) and have it declared once and for all that we all have inalienable gun rights under the 2nd Amendment (2A). The NRA is not cooperating.

    I agree with the NRA. The responsibility to abide by the 2A lies with all levels of govt, and Congress should repeal any laws that it believes to be unconstitutional. The SC rulings that mention the 2A are already very favorable to the individual gun rights view. We currently have a left-wing SC, and it is wishful thinking to hope that it is just looking for a chance to make a radical libertarian statement about guns that will resolve all of the gun debates. I am sure the NRA thinks that it has been much more effective with its programs of educating people about guns, and about gun rights.

    Berkeley research on political conservatism
    A Univ of California Berkeley press release says "Researchers help define what makes a political conservative". It is so silly, it sounds like a parody. (Thanks to The Angry Clam.)

    Update: After some complaints, UCB apparently yanked and then updated its press release. It still says:

    Hitler, Mussolini, and former President Ronald Reagan were individuals, but all were right-wing conservatives because they preached a return to an idealized past and condoned inequality in some form.
    I wonder what the original version said. Hitler was not a conservative in any sense of the word. He was a socialist and a radical. The Nazi party was the National Socialist party.
    O'Reilly on Joe McCarthy
    Fox News's O'Reilly inviewed Ann Coulter, and he doesn't like her defending Sen. McCarthy. Add O'Reilly to the list of people who have been brainwashed by the anti-McCarthy propaganda. He insists that McCarthy was a bad person, even tho he is clueless about what McCarthy did. In this exchange, O'Reilly doesn't even know that McCarthy was a Senator! From his show today:

    Coulter: I am responding to 50 years of the liberal creation of a myth turning an honorable American, a great American patriot Joe McCarthy into a virtual nazi.

    O'Reilly: I'm not going with "great American patriot". I'm not going with it. I'm going with a guy who used his power to do some good, but a lot of bad ...

    Coulter: Like what?

    O'Reilly: Well, he demonized people who didn't deserve to be ...

    Coulter: That's not true -- name one. There is not one.

    O'Reilly: I'll name one: Dalton Trumbo.

    Coulter: He had nothing to do with Dalton Trumbo.

    O'Reilly: Sure he did. He was the House Unamerican Activities Committee. All right. And he was overseeing it.

    Coulter: He is known as Senator McCarthy. He was in the Senate, not the House. Everyone confuses him with the House Unamerican Activities Committee.

    O'Reilly: He was overseeing it. C'mon, you know the clubhouse rules.

    Coulter: He had nothing to do with HUAC. You see, this is part of the myth. It's not everyone says this. Everyone says HUAC.

    O'Reilly: Ok, I don't want to debate McCarthy. He's dead.

    Dalton Trumbo was a Hollywood scriptwriter and member of the Communist Party who refused to testify about his commie activities, and had to write some scripts under assumed names.

    Bob sends this Coulter criticism by David Horowitz. Actually the article is about 95% in agreement with Coulter. His biggest gripe is her lack of support for JFK on CNBC Hardball (TV):

    When somebody as smart and as gutsy as Ann Coulter equivocates over so direct a question - Was Jack Kennedy a traitor? -- you know (and they know) - that something is very wrong
    But she doesn't equivocate. The transcript says:
    Chris Matthews: Was Jack Kennedy a traitor?

    Ann Coulter: No, he was not a traitor.

    Sunday, Jul 20, 2003
    White House lies again
    Bush is giving the Presidential Medal of Freedom to Roberto Clemente, and says his lifetime batting average was .371. No, it was .317. (Clemente died in 1972 near the end of his career.)
    Lawyer Boies in ethics trouble
    John sends this story, and says that champerty is punishable in Florida.

    Andy writes:

    [John's] comment to the story [] is not supported by the text. Boies is being charged with giving money to a client and supervising attorneys in a state in which he is not licensed, according to the story.

    Champerty is paying someone to sue in exchange for a portion of the winnings. It is anachronistic and without significance today.

    John replies:
    Read the last sentence of the article. Champerty (and the related offenses of barratry and maintenance) mean improperly funding someone else's lawsuit. That is exactly what Boies is accused of doing.

    It has nothing to do with whether Boies was practicing law without a required Florida license. Not directly, anyway. Perhaps indirectly it does if he had taken and passed the tough ethics section of the Florida Bar exam (as I did), he would have known that champerty is prohibited.

    Many people think, as you do, that champerty "is anachronistic and without significance today." The reason I sent you this news item was to demonstrate that such a widely held notion is quite incorrect.

    Andy replies:
    It's not champerty unless Boies sought to profit, and there is no accusation in the article that he did.

    You now suggest, for the first time, that it is barratry and maintenance. It's not barratry because, again, Boies did not seek to profit.

    Is it maintenance? Only if the litigation is frivolous, and even then the state might have to show intent by Boies to harass the other side. That doesn't seem to exist.

    I suspect your real point here is to justify the adamant opinion of you and Roger that the Jones v. Clinton litigation was improper because Jones didn't advance legal fees in the case. Clinton and his liberal allies tried every ridiculous defense tactic possible to fend off that suit, but I never heard your and Roger's groundless argument even attempted. The lawsuit was perhaps the most significant legal/political event of the decade.

    I think that Boies is overrated as a lawyer. He has been involved in a number of high-profile cases, but it seems like he has lost just about all of them.

    John replies to Andy:

    John wrote, "I never said teachers can't spend their own money. Of course they can. Nobody is stopping teachers from creating and funding a truly voluntary organization to promote their goals." No one is making teachers join the NEA. There are rival organizations, and there should be a conservative alternative. If the NEA signs up more members than groups we like or need, then we need to ask why and remedy that.
    Andy, did you not study labor law at Harvard? Didn't you recently give a course in American history? How could you be so uninformed about a basic feature of American life? Have you ever heard the term "collective bargaining"? It means that a union is designated as the sole and exclusive representative of all workers in a given workplace. It means that the employer (in this case a government agency, a public school district) is required to deduct union dues from every employee's paycheck and pay them directly to the union. Yes indeed, teachers *are* required to join the NEA. That is my whole point! Individual teachers have no choice in the matter. It is a job requirement that they cannot escape. (Technically, it's true that teachers can opt not to be members of the NEA, but they still have to pay the same dues anyway. My point is the money, not the abstraction of membership. Most of the NEA's budget comes from such compulsory dues, which are collected and paid directly to them by public school districts.)
    There is much to criticize the NEA for. But lamenting their exercise of their freedoms of association and speech is way down the list.
    The NEA has no legitimate right to freedom of association or speech. It is a corrupt, taxpayer-funded, Democratic party slush fund that should be busted up.
    On champerty, John cites a disciplinary action against Boies as vindication of his theory that champerty is a valid defense in litigation. But there is no evidence that champerty is being used as a defense, even in the action involving Boies!

    I said the action against Boies proves that champerty is punishable in Florida. It's not an archaic concept, as you claimed. In addition to the bar discipline mentioned in the article, I believe it would be properly raised as a defense in the underlying lawsuit.

    Moreover, the disciplinary proceeding concerns more than claims of maintenance (not champerty) -- it complains about Boies supervising attorneys in Florida, where he lacks a license.

    So Boies committed more than one offense. Why are you trying to defend him?

    There is a common theme to these ostensibly disparate points by John. In both cases, he is seeking to censor people he disagrees with. I don't find this to be a >productive approach, even if it were possible (and it isn't).

    What a ridiculous charge. Nobody's speech is being censored. It's all about money - the diversion or conversion or use of money for unlawful or improper purposes.

    Nobody has a right to speak with somebody else's money, and it's not censorship to cut off the ill-gotten funds. "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical." --Thomas Jefferson.

    John responds to Andy and me:
    John, do you know this for a fact? Presumably teachers can opt out of paying the dues in right-to-work states, and also elsewhere if the NEA has not been designated the exclusive bargaining agent.
    I question whether RTW laws apply to the public sector. Right-to-work laws were designed for private employment, pursuant to section 14(b) of the Taft-Hartley law, passed in 1947, which applies only to private employment in interstate commerce. At that time, union activity was completely illegal throughout the public sector.

    Collective bargaining between public school districts and teacher unions swept the nation in the 1960s-70s. State laws were changed to accommodate public-sector unions.

    I never heard there was a legal obstacle to teacher unions in the 22 RTW states. There, as elsewhere, collective bargaining contracts require school districts to deduct union dues from teacher paychecks and pay the money directly to unions.

    Teachers can opt out of being a union member. But they still have to pay the same money (which in the case of a non-member is called "agency fees" instead of "dues").

    It takes a rare and determined teacher to resign from the union, since the teacher does not save any money by doing so, yet she loses certain benefits the union provides (such as liability insurance).

    My opinion -- I don't think that govt agencies should ever recognize a union for public employees. > I don't even think that it has a legitimate right to represent teachers in employee bargaining. The teachers are already represented by electing all the public officials who control the tax money.
    I completely agree. Unionism in the public sector is inherently corrupt. Public sector unions are not entitled to first amendment protection. They should be barred from engaging in politics, lobbying, and all forms of public advocacy.
    [From Andy] John then concludes, "Yes indeed, teachers *are* required to join the NEA. That is my whole point! Individual teachers have no choice in the matter. It is a job requirement that they cannot escape."

    No, I don't think that's correct. Teachers choose between the NEA and rival organizations in selecting their bargaining agent. Individual teachers, as John concedes, can then opt out.

    Collective bargaining means a single union is selected for the entire school district. Individual teachers have no choice. Opting out of membership in the union is pointless because a teacher loses substantial benefits without saving any money.
    In Washington and presumably many other areas, individual teachers can even block individual dues from going to the bargaining agent that they selected. If only taxpayers had that right!
    If only Washington teachers actually had such a right! A statewide referendum (I-134) passed way back in 1992 would have put a modest limit on the power of teacher unions to spend mandatory teacher dues, but even that limited restriction is still not enforced because of union defiance. here, here
    On champerty, John cites a disciplinary action against Boies as vindication of his theory that champerty is a valid defense in litigation. But there is no evidence that champerty is being used as a defense, even in the action involving Boies!
    Here's another case where I strongly suspect illegal champerty was involved the NAACP suit against the gun industry, which was reluctantly dismissed (on other grounds) by the nation's most extreme anti-2nd Amendment Judge, Jack Weinstein, in a 175-page opinion today. here here here

    Saturday, Jul 19, 2003
    Sodomy compared to slavery

    The San Jose Mercury News, in a section 1 news story, compares the recent US Supreme Court decision to the pre-Civil War Dred Scott decision. That was the one that tried to resolve some slavery-related issues by creating a new constitutional doctrine expanding the rights of slave-owners. It said that negroes have no legal rights that a white man must respect.

    So where is the similarity? Both Scalia and Taney used historical arguments, both cited the US Constitution, and both expressed opinions that get other people upset. You have to read it yourself to see how idiotic it is.

    So why is this news? Because the Left is worried that Bush might appoint someone like Scalia to the Supreme Court, so they want to slander Scalia by associating him with slavery. Too bad Bush doesn't have the guts to appoint someone like Scalia.

    Friday, Jul 18, 2003
    Dantz Retrospect
    I just got a really brain-damaged software backup product called Dantz Retrospect.
  • It lets me define scripts, but stores them in an incomprehensible binary format in the Program Files directory. I would think that a company that is in the backup business would understand the need to separate programs from data. On some machines, administrator privileges are needed to store configuration data with the programs.
  • It loses track of volume names, and gets mixed up about which drives are which.
  • It has a "One Touch" feature to automate backups, but that can only do a simple backup from one volume.
  • No matter what I do, it peppers me with annoying little dialog boxes asking me if I really want to do it. Sometimes several times. And not just for operations that involve potential data loss, either.
  • The documentation and tech support are pathetic and useless.
  • It can backup from one disc to another, but by default it erases all data on the target disc!

    I would have scrapped the whole thing, but it is triggered by a button on my disc drive. I think I would have rather had the button trigger a simple VB script or something like that. I do not recommend this product for inexperienced users.

    Move On
    The leftist web site MoveOn.org got its start from its campaign to get the public to forget about Clinton's lies in connection with the Lewinsky affair. Now its main issue is to "investigate whether the Bush Administration manipulated and distorted evidence to take the country to war in Iraq."

    Meanwhile, the tables are turned:

    "The President has moved on," White House spokesman Ari Fleischer said to reporters at a news conference on Saturday when asked about the continuing attention being given to false intelligence information used in President George W. Bush's January State of the Union Address. [source]
    Gray Davis recall
    John sends this Sacramento Bee article about a loophole in the California recall law.

    I don't buy it. There is a loophole in that the gov. could resign the day before the recall election, and then the lt. gov. would become gov. and the recall election would be moot. The article says that the lt. gov. becomes gov. in case of a vacancy, but only a resignation would lead to a vacancy. A recall election would substitute a new gov. for the old one, without any vacancy.

    The article also suggests that the lt. gov. might declare that it is inappropriate to put the names of replacement candidates on the recall ballot. That makes no sense to me. The law provides for putting candidates on the ballot if they pay the fee and submit the signatures. Surely several candidates will do that.

    Thursday, Jul 17, 2003
    Baseball All-Star Game
    Last year the baseball all-star game was called a tie because the commissioner got bored and wanted to go home. This year, the game had the worse TV ratings in history.

    Wednesday, Jul 16, 2003
    Sen. Joe McCarthy
    Bob attacks Joe McCarthy, and cites "Fixing Intelligence For a More Secure America" by William E. Odom. It says:
    Effective FBI counterintelligence might have secured indictments of scores of Soviet agents during the 1940s and 1950s. Instead, the FBI contributed to the Senate hearings conducted by Joseph McCarthy, whose unconscionable tactics were exploited as a screen for the activities of well-placed Soviet operatives and the American Communist Party.
    There is no doubt now that the US govt was infiltrated by Soviet agents during the 1940s and 1950s, just as McCarthy claimed. It is funny how no one wants to admit that McCarthy was right, and instead vilify him for "unconscionable tactics" and similar vague slurs without ever detailing just what he did wrong.

    I think Bob is saying that if McCarthy were really an effective anti-communist, he would have found out about the Venona project, rooted out the whole commie spy network, unearthed enough evidence to prosecute a couple of hundred of them in court, gotten rid of all the commie sympathizers in the FBI and DoJ, and whipped up enough public pressure to ensure that the commie spies would be tried, convicted, and imprisoned. I wonder what he thinks about the other 99 Senators.

    Bob responds:

    Actually it would have been the other 95 Senators.

    The other 95 Senators weren't tools of the FBI in spreading their Richard Jewel like disinformation to cover their incompetence.

    I guess he thinks that the FBI was incompetent in its failure to build a case against the commie agents. There are other possible explanations. Maybe the FBI was infiltrated by commies. Maybe the FBI was intimidated by leftist media criticism of the Alger Hiss and Rosenbergs prosecution. Maybe the FBI was overruled by the Justice Dept.

    Bob responds:

    Of the 200 names of probable communist agents given to the FBI as described by Odom, only the Rosenbergs were prosecuted. This is evidence of incompetence. Given the behavior of the FBI in leaking information to the media, the proposition that the FBI was overruled by the DOJ and failed to bring this to the attention of McCarthy and the press is difficult to believe. As to intimidation by leftist media criticism, the best defense would have been convictions and cooperation of more communist agents. If the FBI was infiltrated by communist agents other than Hansen, it would be interesting news. The FBI has enough enemies such as the CIA, to expect that information of FBI infiltration to have been leaked by now. See "See No Evil" by Robert Baer. I would expect such information to have been available after the disintegration of the USSR.
    There was surely enough evidence to prosecute Ted Hall. Apparently someone decided that it would be better not to reveal the Venona project to the American people.

    Here are some Venona facts from PBS.

    Bob responds:

    I agree. A competent FBI would have found sufficient evidence to prosecute Ted Hall. Since revelation of the Venona project would not have aided in prosecution this is a separate issue. I would like to hear a defense of the decision to keep Venona classified.
    Bob sends reviews by Andrew Sullivan and Dorothy Rabinowitz trashing Ann Coulter's new book. I guess he thinks that Coulter must really be bad if right-wingers denounce him. But they aren't right-wingers, and their criticisms are weak. Sullivan's strongest point is that someone named Ron Radosh wrote a book about McCarthy, and he doesn't like anyone else's book on the subject, including Coulter. He doesn't say why, except to call it "crap".

    Rabinowitz's complaints are not much better. She says:

    In Ms. Coulter's version of this history, of course, the blacklisted are only the rich and resourceful--a history that doesn't include the countless people destroyed because their names had popped up on some list of alleged Communists or fellow travelers, or sounded like a name on one of those lists. People like the actor Phillip Loeb, for example, unemployable and ultimately driven to suicide because he could no longer pay the bills for the care of a mentally ill son.
    I do not believe that anyone committed suicide because his name sounded like the name of a commie. My sources say that Philip Loeb was a commie fellow traveller, signed a petition supporting Stalin's Moscow show trials, was dropped from a TV show because no sponsor wanted to be identified with an unrepentant Stalinist, and was offered $85k in 1951 as a settlement. He refused, but later accepted $40k. He killed himself in 1955 because he was unable to pay a $1k tax bill. Rabinowitz does not even get the spelling of his name right.

    If this is Rabinowitz's best evidence of the evils of McCarthyism, it is pathetic. It didn't even have anything to do with McCarthy. Why should a private commercial sponsor pay to put a Stalinist on TV? Nobody would pay to put a neo-Nazi Hitler supporter on TV, and there is no reason to sponsor a Stalinist either.

    Vince Foster
    Andy writes:
    The plaintiff in the Vince Foster case forwarded me this link. It's a new audio discussion by the government attorney who quit in protest over the cover-up of Vince Foster.

    The government's refusal to release the postmortem photos, which may show a gunshot wound to the neck, is pending before the Supreme Court. Also note from the audiotape that the White House knew of Foster's death before the 911 call reporting it, and that the FBI intimidated this government attorney. I particularly enjoyed his description of how the government quickly re-landscaped the park.

    One of the prosecutors, who excoriated a key witness complaining about the cover-up, is being nominated by Bush to the DC Circuit.

    I am convinced that the authorities were covering up something in connection with Vince Foster's death. Too many details are fishy. The obvious suspicion is that Foster was murdered. If he committed suicide, there must have been something very embarrassing about it.

    Monday, Jul 14, 2003
    A fool for a lawyer
    Conventional wisdom says that no criminal defendant should ever defend himself in court. He should just shut up and let his lawyer do all the talking. Certainly OJ Simpson was better off that way.

    But maybe not everyone. When the Unabomber threatened to defend himself, the feds got scared and offered to drop the dead penalty if he pleads guilty. The so-call 20th hijacker Zacarias Moussaoui has been causing headaches for the federal prosecutors by defending himself. It had looked like he was sure to get the death penalty, but now it looks like the feds may want to offer him a deal.

    John sends some columns in support of outsourcing, such as this one. It suggests that outsourcing is synonymous with economic activity, and anyone who doesn't recognize that is looney.

    The columnist quotes an economist who outsources his dirty shirts to a laundry. Well, I happen to find it more economical and convenient to wash my own shirts. If I learned that the govt was subsidizing professional cleaners in order to promote outsourcing, I'd be annoyed.

    These columnists pretend to be free traders, but they are really the modern equivalent of slave traders. 300 years ago, negro slaves were imported with similar arguments about how the slave trade was just another form of economic activity. Now they want to import hundreds of thousands of indentured servants from India, China, and other Third World countries as cheap labor. I call them indentured servants because they are paid less than the going rate, and because they will be deported if they quit their jobs. They all want to stay in America, so employers get low-paid and compliant workers who will put up with whatever the employer requires.

    Joe writes:

    Do you have a problem with workers in India sitting over there doing programming by broadband linkup?
    No. I do have a problem with special govt programs to bring in Indian progammers to the USA on a theory that there is a labor shortage here, when there is actually a surplus, not a shortage.

    Sunday, Jul 13, 2003
    Title IX Quotas
    Andy explains that Bush has endorsed Clinton's interpretation of Title IX, and that implies sex quotas in college athletics. Title IX is an innocuous federal law promising nondiscrimination in education programs, but radical feminists have used it to wipe out college sports like men's wrestling. Andy writes:
    The "proportionality" test is in the reported decisions.  In looking at them I realized something for the first time: even if the quota is no longer required, it is still permissible under Bush's new guidance.  And that is highly objectionable, because feminists are running these colleges!
    For example, wrestlers recently lost in challenging a university's use of quotas to eliminate their team.  The court held (Chalenor v. Univ. of N.D., 291 F.3d 1042 (8th Cir. 2002)):

    "[A]s the Ninth Circuit noted in Neal v. Bd. of Trs. of Cal. State Univs., 198 F.3d 763 (9th Cir. 1999), "every court, in construing the Policy Interpretation and the text of Title IX, has held that a university may bring itself into Title IX compliance by increasing athletic opportunities for the underrepresented gender (women in this case) or by decreasing athletic opportunities for the overrepresented gender (men in this case)."  Id. at 769-70. The cases from other circuits include: Neal, 198 F.3d at 771 (allowing university to make gender-conscious decisions and noting that "the plain meaning of the nondiscrimination principle set forth in 20 U.S.C. § 1681(a) does not bar remedial actions designed to achieve substantial proportionality between athletic rosters and student bodies"); Boulahanis v. Bd. of Regents, 198 F.3d 633, 638 (7th Cir. 1999) (holding that university's elimination of men's soccer and men's wrestling teams "is not a violation of Title IX as long as men's participation in athletics continues to be 'substantially proportionate' to their enrollment") (citation omitted), cert. denied, 523 U.S. 1284 (2000); Horner v. Ky. High Sch. Athletic Ass'n, 43 F.3d 265, 275 (6th Cir. 1994) (noting that "an institution need not pour ever-increasing sums into its athletic programs in order to bring itself into compliance, but has the option of reducing opportunities for the overrepresented gender while keeping opportunities for the underrepresented gender stable") (citation omitted); Kelley v. Bd. of Trs., 35 F.3d 265, 270 (7th Cir. 1994) (allowing university to eliminate men's swimming team while retaining women's swimming team because male athletes on the whole "would continue to be more than substantially proportionate to their presence in the University's student body"), cert. denied, 513 U.S. 1128 (1995); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 830 (10th Cir.) ("Financially strapped institutions may still comply with Title IX by cutting athletic programs such that men's and women's athletic participation rates become substantially proportionate to their representation in the undergraduate population."), cert. denied, 510 U.S. 1004 (1993); Cohen, 991 F.2d at 898 n.15 (noting that university can "bring itself into compliance" with Title IX "by reducing opportunities for the overrepresented gender while keeping opportunities stable for the underrepresented gender (or reducing them to a much lesser extent)")."

    What's interesting about this list is that it shows how meaningless the second and third prongs of the guidance are, even with Bush's imprimatur on Friday.  The second prong implicitly requires pouring "ever-increasing sums into its athletic programs," an obvious impracticality.  The third prong requires proof that the university is "fully and effectively" accommodating everyone.  Well, if someone sues, obviously her needs are not being met!  So this prong is not meaningful either.  The proportionality test remains the entire ballgame.

    I skimmed the massive Title IX litigation against Brown University. The proportionality test was central to plaintiffs' victory.

    After winning, plaintiffs then demanded attorneys fees. This is the cash cow sought by the feminist law groups. The magistrate awarded plaintiffs $1,059,473.05 in attorneys fees and $21,385.20 in costs. It was slightly modified on appeal to the district court judge.

    Then, to add insult to injury, the court subsequently rendered another award of "fees on fees" -- e.g. attorneys fees incurred in fighting over fees. Brown was stuck with another bill for $228,285.90 for that. This occurred just two weeks ago, for litigation initiated over ten years ago.

    You can bet no university wants to go down that road. In addition to being ordered to pay $1.2M in attorneys fees of plaintiffs, Brown probably had several million dollars in legal expenses of its own.

    Phyllis writes:
    We're not asking to change the law. We're not even asking to change the regs. We're just asking to abolish Clinton's outrageous manufactured guidelines for enforcement.
    I think that it should be criminal to claim $1M in legal fees, when the crux of the case is a simple back-of-the-envelope calculation that should take about 5 minutes to explain.

    Andy send gripes from wrestlers here and here.

    Safe driving
    A lot of Californians are trying to ban cellphone use while driving, unless the phone has a "hands-free" attachment. Fortunately, the proposed ban just lost a vote.

    This sort of safety micromanaging by state law is really a bad idea. For years we were told that the 55 mph speed limit saves lives. Today's NY Times Magazine says:

    according to a recent academic study, raising speed limits to 70 miles per hour, and even higher, has no effect whatsoever on the death rates of young and middle-aged male drivers. That's right, guys: if you're under 65 and you find yourself cruising the great wasteland somewhere between Denver and Portland, say, you can rev things up with a clear conscience -- soon maybe even in Oregon, whose Legislature is considering upping its maximum speed limit from a poky, painful 65 to a brisk and wholesome 70.
    Currently, California law says that driving with headphones in both ears is illegal. Presumably this dates back to when headphones commonly covered the entire ear and blocked out other sounds, so there could be a safety hazard if the driver could not hear someone honking. And yet deaf people are allowed to drive, and you can roll up all your windows and turn up the car stero full blast. With a hands-free phone, you can plug an earphone into one ear.

    I drive a convertible (with the top always down) and listen to an mp3 player. Because of this law, I use ear buds. They actually block more outside noise that my regular headphones. Either way, I hear plenty of outside noise in my convertible. If I want to minimize the outside noise, I put earplugs in my ears and crank up the car stereo full blast. Then I can hear the music quite comfortably and nothing else. That is quite legal. So these laws make no sense to me, and I just try to avoid tickets.

    As I understand it, there are 2 theories for thinking that driving with a cellphone is hazardous. One is that the phone is distracting, and the other is that it takes a hand off the steering wheel. The hands-free phone does nothing about the distraction of the phone call, and may even make it worse, has to talk on the phone as well as fiddle with an extra gadget. So the proposed California law must be based on a theory that the driver should have 2 hands on the steering wheel. But I always drive with only 1 hand on the wheel anyway, and that is completely safe and legal. It leaves the other hand free for shifting gears, adjusting the radio, eating french fries, talking on the cellphone, or anthing else. I realize that some people have trouble driving with one hand, and some don't even know how to shift gears, but the rest of us should not be punished for shortcomings of a few lousy drivers.

    Xbox hacks
    The Xbox/Linux community is making progress towards turning the Msft Xbox into a general purpose computer. You can buy an underground modchip and solder it onto the Xbox motherboard, and run Linux. The modchips depend on Msft using a flawed hash function, and finding a collision that is useful.

    Now people have figured out a scheme that does not modify any hardware. The Xbox only loads games that Msft signs. They wanted Msft to sign a Linux kernel, but Msft refused. Now they have a hack that involves saving a game's state to disk, modifying the (signed) game state, forcing a buffer overflow when reloading the game, changing the last 4 bytes of Msft's RSA key so that it is easily factorable, and using that private key to sign a Linux image. Or at least that's the way it looks to me. For more info, see the links at Slashdot and a technical explanation here. There is also a new book on hacking the Xbox.

    Once you do the hack, it boots Linux every time and you cannot run your Xbox games anymore. Perhaps they'll soon figure out how to go back and forth harmlessly, and then the Xbox will be the best $180 computer you can buy.

    George writes:

    Are you encouraging piracy but putting up those links?
    It is debatable. Hacking the Xbox might make it easy to pirate games by copying the dvd to the hard disk, and maybe then to a network. Msft would presumably say that Xbox hacking tools violate the DMCA. But most of the Xbox hackers just want to be able to run Linux and get the most out of the hardware they bought. No one would complain if you bought a toaster, dissembled the components, and then modified them to do some other task. That is what the Xbox hackers are doing. Msft doesn't like it because it sells the Xbox for a loss on the assumption that it will make the money back in games. It doesn't want you to run Linux because if you find some other use for the Xbox, you might not buy any games. But isn't that Msft's risk? You could also buy an Xbox and discard it, and Msft would lose money on the deal.

    Actually, Msft doesn't even make the money back on the games, and its Xbox division has no hope of making money in the near future. So why does Msft even pursue the market? That is more complicated to understand, and the publicly available info may not tell the whole story. It appears that it is a strategic move for Msft in order slow down Sony and keep it from encroaching on Msft's main markets. So it is difficult to tell whether hacking an Xbox to run Linux is interfering with Msft's goals or not.

    Saturday, Jul 12, 2003
    Galileo's Mistake
    John sends this NY Times book review about the trial of Galileo. The book takes the unpopular position of defending the Pope. The reviewer is writing his own book on the Protestant Reformation, and is not persuaded. He says:
    The gripping story of Galileo's trial before the Roman Inquisition is one of the defining narratives of Western civilization. The spectacle of the aging astronomer being forced, under the threat of torture, to recant his belief that the Earth revolves around the Sun has seemed to many to mark the moment when the Age of Faith gave way to the Age of Reason and to embody the Catholic Church's enduring hostility to unfettered inquiry and expression.
    Somebody should write a book rebutting these silly ideas, but Galileo's Mistake is not it.

    Friday, Jul 11, 2003
    Nevada judges suspend the constitution
    The Nevada legislature cannot get the 2/3 votes to rais taxes, as its constitution requires, so the Nevada supreme court issued a writ that a simple majority is sufficient! Volokh's blog criticizes it.

    Now some Californians are excited by this, according to this story. California Democrats are similarly desperate to raise taxes, but cannot get the 2/3 majority to do it. Those Nevada judges ought to be impeached or recalled.

    Thursday, Jul 10, 2003
    Dave Stafford
    My picture is on Dave Stafford's blog. He just went on a motorcycle trip around the world.

    Monday, Jul 07, 2003
    Death of the French language
    John sends this Reuters article about how the French language has dropped to being one of only marginal significance in the world. Even in the EU and UN, where French used to be favored, no one wants to speak French anymore. I think that it is time to quit teaching French in schools. The language is useless.

    Liza, who speaks many languages, writes:

    I agree that French is not the international language anymore. But learning it is not a waste of time. English is 50% derived from Latin/French (probably mainly the Norman French brought in by the conquerors in 1066, which I suspect was about halfway between Latin and modern French). Studying French, like studying Latin, is helpful for understanding the roots of the English language. Also, France produced a very impressive heritage of literature, art, music, math, science, philosophy, fine cuisine, fashion, film, etc., and knowing the language aids in the appreciation of many of those cultural accomplishments.
    Bob writes:
    Those Norman conquerors of 1066 mentioned in your blog may have spoken something like French, but their recent ancestors were vikings.
    John sends this story saying that the French authorities want to use the obscure Quebec word courriel to describe email. I don't think that it will catch on, even in France. The French often prefer English words to these silly artificial words.

    Saturday, Jul 05, 2003
    Ann Coulter's new book
    Andy writes:
    According to Amazon's list of bestsellers (updated hourly), Ann Coulter has beaten Hillary Clinton:

    Ann Coulter's book about McCarthyism -- not an easy sell, though it has the patriotic title Treason -- is #3 overall (fiction and non-fiction). Hillary's liberal banter has dropped to #11.

    Amazon.com has 319 online reviews already, mostly positive. Here is the latest negative one:
    Nobody believes Ann Coulter’s extraordinary accusations. Do not blame it on her baby doll looks.

    The Encyclopedia of World History, Sixth Edition (Peter N. Stearns, General Editor): “The charges made by Sen. Joseph McCarthy of large-scale Communist infiltration into the State Department were found to be untrue by a Senate committee. The senator's careless accusations brought great hardship to many people.”

    Professor of History (Rutgers University) David Oshinsky wrote in United State History (Oxford, University Press, 2001): ”McCarthy’s hearings did not uncover any communists. They did, however, ruin numerous careers, undermine government morale, and make America look ridiculous in the eyes of the world… The Senate censured McCarthy for bringing that body “into dishonor and disrepute.”

    U.S. government funded “Radio Liberty” broadcasted (06/19/03): “Atmosphere of McCarthy’s hysteria and anti-Semitism played the major role in the Rosenberg’s conviction.” To whom you will believe? US government and History Professors or the ambition blond.

    Communist infiltration of the State Dept. is an established historical fact, whether McCarthy's fellow senators believed it or not. McCarthy was not censured for his hearing or his allegations; only for failing to cooperate with one of the many investigations of himself.

    If McCarthy undermined the morale of a bunch of commies in the govt, so much the better. Everyone now agrees that Julius Rosenberg was a commie spy, and that he gave the Soviets info related to the Manhattan Project. The only dispute about Rosenberg is that he was executed while other spies betrayed the USA more and were not executed.

    How antisemitism might have played a part, I don't know. It is true that a lot of the commies and fellow travelers in the USA were jewish. But so was Roy Cohn, the top lawyer for McCarthy's committee. I think that most Americans would favor executing any spy who gives atom bomb secrets to a foreign enemy, regardless of religion.

    Meanwhile, here is a more modern effort to undermine govt morale. An MIT group has created a Government Information Awareness (GIA) website to track govt officials, as reported in the Boston Globe.

    John writes that my rebuttal of the Amazon review is lame.

    A much stronger rebuttal can be made. It is hardly relevant that Roy Cohn was "the top lawyer for McCarthy's committee," since McCarthy had nothing to do with the Rosenberg case. Cohn joined McCarthy's staff after the Rosenbergs were convicted. However, Cohn had previously played an essential role in convicting them.

    In fact, the following Jewish individuals were responsible for sending the Rosenbergs to the chair:

  • Irving Saypol, the U.S. Attorney for the SDNY who prosecuted the Rosenbergs (fresh from his successful prosecution of Alger Hiss);
  • Roy Cohn, the assistant U.S. Attorney who second-chaired the trial and played a key behind the scenes role involving allegedly improper ex parte communications with the judge;
  • Irving Kaufman, the judge who presided over the trial, sentenced the Rosenbergs to death and described their crime as "worse than murder";
  • Jerome Frank, the eminent judge of the 2nd Circuit U.S. Court of Appeals who wrote the opinion upholding their conviction and sentence;
  • Felix Frankfurter, Associate Justice of the U.S. Supreme Court who refused the Rosenbergs' final appeals to stop the execution.
  • With my tax money supporting such commie propaganda, it sounds like the govt is still infiltrated with commies. I thought that Radio Liberty was supposed to be pro-American, and anti-Communist.
    Gadget watch
    I just got a Prismiq media player, based on this rave review in PC Magazine. It is one of many new devices on the market that attempt to bridge a home computer network with a home theater (ie, TV and audio equipment).

    I am surprised that the Prismiq got such a rave review. I like the feature set, but I just got a new one and it has a lot of problems. I could only get it to recognize media on 1 of my 2 computers. I could not get the image (JPEG) viewer to work at all. (Strangely, the demo samples do not even include any pictures.) The web interface is horribly slow, and it takes about 10 minutes to download a Yahoo page that usually takes 2 seconds on my computer. I am still working with tech support to try to resolve these problems, so maybe I'll have a better report later.

    Update: I finally got the Prismiq working. Among the problems was that requires internet port 8080. It is hardwired and undocumented. Bad choice. A lot of programs default to that port. Fortunately, most of them document it and let you change the port number. Prismiq does not.

    The product does some things well, but has some rough edges. Eg, user interfaces typically have one button that means Select or Enter, and another that means Cancel or Escape. The Prismiq remote has a "select" and an "enter" button, but no "cancel" button. Its main category buttons are "home movies music photos web chat" while the onscreen descriptions for the same choices are "home video audio images web chat". Not consistent.

    Gray Davis recall
    An LA Times poll favors a Gov. Davis recall by 51% to 42%, and increasing. But then they asked again after saying that the recall election would cost $25 million. Support dropped to 39%.

    This sounds like a desperate attempt to favor Davis. Davis's main argument against the recall is the cost of the election. The election won't cost anything if it is scheduled with the primary next spring. And if a special election is scheduled, then it will cost money regardless of who wins.

    But more importantly, the $25M is a drop in the bucket compared to the stakes. I figure that Davis's mismanagement has cost the state about $100B in deficits and energy losses during his 4.5 years in office. That's about $60M for every day he has been in office. At that rate, if Davis is recalled, the recall will pay for itself the very first day.

    Friday, Jul 04, 2003
    Google searches
    Try searching Google (and clicking I'm Feeling Lucky) for french military victories or weapons of mass destruction. I guess bloggers like myself are keeping those page rankings high.
    Legal codes are in the public domain
    In all the US Supreme Court excitment last week, hardly anyone noticed that it let stand a 5C ruling that legally binding codes are in the public domain. You can find the Veeck vs. SBCCI links here.

    This is great. There are still organizations like the AMA who make a lot of money selling legal codes. You can find the AMA codes here.

    Wednesday, Jul 02, 2003
    Life in prison for spitting
    John sends this story about an Oklahoma man who got a life sentence for spitting. Pretty absurd. I assume that some appellate court will reduce it.
    Milk and asthma
    There are some common myths that milk is bad for anyone but a baby, and one of the more common ones is that milk is bad for asthma. I think it is only based on the idea that some mucus looks milky.

    John sends this research study that says milk and butter protect kids against asthma.

    Tuesday, Jul 01, 2003
    Blaming Bush for Gray Davis
    John sends this LA Times op-ed by Robert Scheer that says:
    The other day a woman asked me to sign a petition calling for the recall of California Gov. Gray Davis. Why, I asked. Because he bankrupted the state, she said. When I begged to differ that it was the Bush administration and its buddies at companies like Enron that had put the state into an economic tailspin ...
    John wants my answer, but the article doesn't even make much sense. The California economic and energy crisis started in 2000, before GW Bush even took office. Then I read on, and learned that Scheer is referring to the first Bush administration! Actions by G Bush in 1992 supposed helped Enron and eventually wrecked California in 2000.

    I would like to blame Enron, and send all the Enron executives to jail for fraud, but it is really a stretch to think that they hurt California's economy. The point of the California energy deregulation was to bring efficiencies by allowing traders to buy energy where it is cheap, and to sell it where it is needed most. So Scheer complains that Enron bought electricity in one state and sold it in another, and complains that the feds let Enron do it.

    There is nothing wrong with reselling energy where demand is greater, and no such reselling contributed to California's problems. Enron's trading was just what California wanted it to do.

    California's energy deregulation plan was only a partial deregulation and re-regulation, giving the energy companies a strange and unworkable set of rules to operate under. By the year 2000, it was clear to everyone that the rules were not working, and they should have been repealed or fixed. Many proposals were made. If Gray Davis had followed any of them, we would have been better off. Instead he followed his own controversial plan that consisted of blaming the feds for not rescuing California, and barring long-term energy contracts in the hopes that prices will come down. Then, when energy prices reached an artificial peak, he forced the energy companies to sign long-term contracts that he negotiated. In the process he locked in those high prices and we Californians will have to pay it for years.

    Scheer complains:

    FERC at the same time said California must honor $12 billion in long-term contracts written under duress with the same companies that were gaming the market.
    The term "gaming the market" is a euphemism for following the energy trading rules that California defined. Most of those contracts are with energy producers who built new capacity in order to meet California demand. They are not with Enron. If we are going to have an energy market at all, then we have to pay the producers who are meeting demand. Isn't the whole idea of deregulation to create incentives to companies to build power plants? If they build the plants and sign contracts, what would be the basis for reneging? And who is going to build more power plants, now that everyone sees that the state does not want to honor its contracts?
    Bloggers have libel protection
    John sends this Wired story about a 9C federal ruling that bloggers can't be held responsible for libel for information they republish. Good.
    Reason for vaccinating newborns
    The USA vaccinates all newborn babies for HBV, a venereal disease. This policy puzzles many parents, and several different explanations are given. The NY Times quotes a vaccine policy expert with this explanation:
    Hepatitis B is the one vaccine now given to American infants solely because the health care system is so poorly equipped to handle teenagers, Mr. Salmon of Johns Hopkins said.

    The infection, which leads to cirrhosis and liver cancer in adults, is transmitted from mother to child at birth, or later by sex or intravenous drug use. Children can transmit it by biting, but that is very rare.

    If all expectant mothers could be screened, Mr. Salmon said, there would be no need to give children the shot, which is the first given at birth.

    "But we don't do a good job of screening, so the rationale is to vaccinate everyone at birth," Mr. Salmon said. "It's a tough situation. We're asking a vaccine to make up the deficiencies in the health care system."

    Daniel A. Salmon was a coauthor of some papers like this one, attacking personal exemptions to childhood vaccine mandates.