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Monday, Jun 30, 2003
Defending filesharing
Glad to see the EFF is defending filesharing. They are right that copyright law is broken, and the P2P services have done a wonderful thing for music. I am getting tired of music label propaganda that treats people like criminals just because they want to use computer technology to enjoy music.

Sunday, Jun 29, 2003
Microsoft Palladium
The NY Times has a story about Msft Palladium, with various ominous threats from critics about how evil it was. It gets compared to the Intel serial number debacle, but the Intel serial number was part of a poorly thought out scheme that would not have worked. Palladium has the potential to secure certain types of operations that no other technology can do. Steve Jobs of Apple seems to think that Palladium will not work.
He's wrong. It will work, and I'd like to buy one as soon as it is available.

Saturday, Jun 28, 2003
Forced Vaccination
A Colorado newborn baby was forcibly given the HBV vaccine because the mother had a false positive test. Here is the story.
Virgin Mary in window
See the Virgin Mary in this hospital window.

Friday, Jun 27, 2003
Our left-wing Supreme Court
Who says we have a conservative US supreme court? The recent decisions on family medical leave, sodomy, affirmative action, and death penalty cases are home runs for the progressives. These are all activist, left-wing opinions. I don't think that there are any comparable right-wing opinions that are so clearly driven by ideology, so contrary to precedent, and such deliberate attempts to set public policy.

George writes:

These decisions are not extreme. Polls show that most people are against sodomy laws.
I agree with Clarence Thomas's dissent that the Texas sodomy was silly and ought to be repealed. But we've had laws against sodomy for 100s of years, and as recently as 1960 all 50 states had laws against sodomy. Most states have since repealed. This is a political matter, for elected politicians.

As Scalia points out, the same ones who overruled precedent and found a constitutional right for anal sex are the same ones who upheld Roe v. Wade, even though it might have been wrongly decided, because:

" Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] ... its decision has a dimension that the resolution of the normal case does not carry... . [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.
Then the Court has subverted its own legitimacy.

Wednesday, Jun 25, 2003
H-1B Jobs
The InstaPundit writes about outsourcing to India and elsewhere, and he seems sympathetic to libertarian views about jobs. But then he gets sucked in by pro-immigration myths from readers.

One reader says that that a "large laser printer company" found it impossible to hire engineers in the USA, so it outsourced to India. I don't know where it looked, but here in Silicon Valley there are thousands of engineers available with just about any qualifications you could want. You just have to pay the going rate, and the printer company didn't want to pay it.

Another reader says that he had an H-1B visa and his "job could not be filled by a US Citizen". There are about 463k H-1B workers in the USA, and I'd be surprised if more than 100 of them could not be filled by US citizens. The H-1Bs are hired for lower pay, and lower job mobility. That reader was not really a temporary worker at all, and just used the program to get a green card. Most of the H-1B workers do not have any special skills at all.

Here is a good source on H-1B visas and US jobs.

Affirmative Action
The muddled and incoherent Supreme Court decisions on U. Michigan racist admissions policies are a disgrace. What does this mean?
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. .... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Apparently O'Connor thinks that the US Constitution of 140 years ago created a 50-year second Reconstruction that is temporarily in operation today.

If I had to choose between the two U. Michigan admissions programs, I would have allowed the undergraduate program as that was more honest. It gave points to preferred minorities. The law school won with a disguised quota system that was justified with terms like "critical mass". If it really needed critical mass of, say, 20 black students, then it would need 20 blacks, 20 mexicans, 20 indians, 20 Puerto Ricans, 20 mohammedans, etc. But that's not the way it works at all. Each preferred ethnic group has a quota that is related to its concentration in the total applicant pool.

Bad work by Ted Olson
Andy sends this list of cases that had Ted Olson on the wrong side.
1. Eldred v. Ashcroft (copyright case, Olson sided with Disney's interests)

2. Owasso Indep. Sch. Dist. v. Falvo (FERPA case -- undermined good position of Dept of Ed., and had misleading cite to undisclosed documents)

3. Nevada Dept of Human Resourses v. Hibbs (Family Leave case -- dreadful feminist language in Olson's brief).

4. United States v. Sell (wanted federal power to drug peaceful prisoners pretrial)

5. Lawrence v. Texas (failed to file a brief in this important sodomy case, leaving conservative Justices out on a limb)

6. Favish v. Office of Independ. Counsel (opposes FOIA request for Vincent Foster photos)

7. Stogner v. California (Olson even obtained leave for his attorney to orally argue for power to eliminate statute of limitations after the fact).

8. NOW v. Scheidler (Olson sought application of RICO laws against abortion protesters)

9. Nuremberg Files case (Olson opposed Supreme Court cert sought by pro-lifers)

Monday, Jun 23, 2003
Library free speech
The US Supreme Court ruled that federal support for libraries can be contingent on installing filtering software. Only Souter and Ginsburg agreed with the ACLU and lower court that it was unconstitutional for libraries to install filtering software. That latter position was really wacky considering that it is hard to use the internet without some sort of filtering. For example, firewalls, spam blockers, and pop-up blockers are all filters. A big complaint about some commercial filtering programs was that the filtering methods are usually not documented, but there are open-source alternatives like SquidGuard that are free and fully configurable. Also, the filters don't really restrict any adults because the library can turn off the filtering on request.

Bob doesn't believe that the lower court found that voluntary filtering on the part of the public library was unconstitional. But not only did they say that, but Souter and Ginsburg agreed:

I would hold in accordance with conventional strict scrutiny that a library's practice of blocking would violate an adult patron's First and Fourteenth Amendment right to be free of Internet censorship
The third dissenter, Stevens, refuses to go that far:
I agree with the plurality that it is neither inappropriate nor unconstitutional for a local library to experiment with filtering software as a means of curtailing children's access to Internet Web sites displaying sexually explicit images. I also agree with the plurality that the 7% of public libraries that decided to use such software on all of their Internet terminals in 2000 did not act unlawfully.
Avatar sex discrimination
Some economists look at virtual reality avatars for data, and one found that female avatars trade for 10% less than male avatars. Puzzling, since the avatars have the same capabilities.

Sunday, Jun 22, 2003
3 years for bogus student votes
A U. Calif. student cast some phony votes for a fictitious candidate to exercise a loophole in the online election, and now he faces 3 years in prison. Seems excessive to me. What's the crime?

The student apparently tried to get anonymous legal advice by posting a confession here.

Update: The UC Riverside paper identified the student as 21-year-old Shawn Nematbakhsh. (Annoying free reg. reqd.) It says the university lost $2,400 because it had to repeat the election. I am not sure why he should be responsible for the $2,400. The election was no good whether he cast votes for a comic book character or not. It had a server that would easily let anyone vote as many times as he wanted.

Gov. Gray Davis
Andy writes:
Gray Davis' meteoric crash is remarkable. Not too long ago he was considered perhaps the most powerful and invincible politician in the country. He was by far the most prodigious gubernatorial fundraiser. Economic problems have hurt him, but many politicians have survived that without being recalled. I can only infer that his humiliation by his own church has a played a key role discrediting him.

From Novak column yesterday:

Prominent California Democrats are pressing to get Gov. Gray Davis to resign rather than face a recall that may replace him with a Republican governor in a special October election.

Oakland Mayor (and former California governor) Jerry Brown, in Washington this past week, speculated that Davis could instantly destroy the recall movement by resigning. That would elevate Democratic Lt. Gov. Cruz Bustamante to the governorship. Sen. Barbara Boxer has sketched the same scenario in private conversations with fellow Democrats.

These Democrats express skepticism that Gray would voluntarily surrender the prize that he sought his entire political life. Nevertheless, he could derail the recall at any time prior to the actual balloting by just quitting.

Yes, Davis could resign at any time, and leave the Democratic Party in control of the governorship, but I doubt that will happen. When Calif. Chief Justice Rose Bird faces a movement that would surely oust her from office, she chose not to resign and two of her colleagues ended up being ousted on her coattails.

I cannot think of any politician who has created greater economic problems for himself than Gray Davis.

Even Davis supporters don't have much positive to say about him The Si Valley paper has steadily supported Davis, but its chief editorial writer only has this lame defense. He complains about the ads from the campaign to recall Davis, but concedes that Davis lied about the budget before the last election, and ruined our electric utilities.

He says the ads are inconsistent because they complain about spending increases as well as complain about inappropriate cuts and failures to render needed services. There is no inconsistency -- Davis is spending the money on the wrong stuff.

He also says this is misleading: ``That's why more and more Democrats and Green Party leaders are saying enough is enough.'' I didn't hear that ad, so it could be misleading because Republicans are leading the recall effort. But there is no doubt that Davis is widely hated among Democrats and Greens, and many of them will vote to recall him. Current polls say 33% of Democrats favor recalling Davis.

Adobe PDF
I didn't know that Acrobat was Adobe's biggest moneymaker. I thought that PhotoShop and some of its other products would have been bigger.

Acrobat is an annoying program. PDF files are great if you want a document to print out correctly. As long as you avoid using extra fonts, that works. But Acrobat doesn't work with MSIE very well. Acrobat version 5 is a lot better than version 4, and version 4 was a lot better than version 3, but still I often have to download a PDF file to disk, and then load it from disk.

Thursday, Jun 19, 2003
Gray Davis recall
The San Jose paper has a history of the California recall, but it curiously fails to mention the most famous recall of them all -- the 1986 recall of Chief Justice Rose Bird of the California Supreme Court.

Meanwhile, bloggers and other web sites are credited with putting life into the Gov. Gray Davis recall. See this LA Times story. Davis is likely to be ousted, at this point.

The San Jose Mercury News reporter responds:

Thanks for your message. In fact, Rose Bird was not recalled. It's a popular misconception. She did face recall attempts, which were unsuccessful. Her defeat in 1986 along with two other judges came during a periodic re-election that Supreme Court justices have to face. It's a yes or no retention vote, but not a recall, which is initiated by petition. I hope that explains it.

Jim Puzzanghera
Washington Bureau Chief
San Jose Mercury News

Slate describes Davis and his current dilemma well:
Gray Davis has made a career out of being the incarnation of None of the Above, a ballot option made flesh. He's not popular, he's not inspiring, he's not likable, but he's also not the other candidate. Davis doesn't have supporters, really. Rather, he receives support from those who don't like his opponents. Which is what makes the attempt by California Republicans to petition for his recall so fascinating and so dangerous for the California governor: What happens when the None of the Above candidate actually squares off against None of the Above?

Wednesday, Jun 18, 2003
Is Vaccine Dissent Dangerous?
My article just appeared in the Journal of American Physicians and Surgeons (formerly, Medical Sentinel). My article is not online yet, but an expanded version is here.

Update: The article is now online in this issue.

Fox's Bill O'Reilly is on the warpath against the internet. First he attacks blogs because they repeated a story from the SF Calif. newspaper. Then he sides with Orrin Hatch in favoring computer sabotage against suspected copyright infringers.

An excerpt from Hatch's comments are here, and Hatch backpedals here.

This blog suggests that Hatch is a software pirate himself.

Update: Wired confirms that Hatch is a software pirate. His web site uses unlicensed software.

Tuesday, Jun 17, 2003
New bogus gun study in medical journal
John sends this Eugene Volokh article in NRO which criticizes a gun study in this issue of the Annals of Emergency Medicine.

The study purports to show that those who are in danger of dying in a gun homicide are more likely to have a gun at home. From this it concludes:

In summary, on the basis of national samples drawn in the early 1990s, adults who have a gun or guns in their home appear at risk to be shot fatally (gun homicide) or to take their own life with a firearm. Physicians should continue to discuss these implications with patients who own guns or have guns at home and to consider how patients might make their environment safer.
Just what are those physicians going to say?
Do you have a gun in your home? ... Why? ... Because you live next door to drug dealers? ... You've got to get rid of the gun. Some drug dealer or crazed junkie could shoot and kill you, and medical studies show that you are safer if you are defenseless.
This makes no sense to me. Physicians should stick to practicing medicine.

On his blog, Volokh also points to evidence that most homicide victims are criminals, that criminals are more likely to have guns, and that the study failed to control for criminal records. (It was a case-control study that controlled for age and sex and other factors.)

In other gun news, many Minnesota stores are now letting customer carry guns on the premises, in accordance with new concealed carry laws. A policeman is in hot water for shooting a pit bull dog that was attacking him in his own yard. I think that it should be permissible to shoot any unconfined and unleashed pit bull, whether it is attacking anyone or not.

Monday, Jun 16, 2003
Demographic changes
Andy writes:
What's the biggest demographic change of the last decade? More moms staying at home to raise kids. That probably means more homeschooling also, though that statistic is hard to nail down.
European Fairness Doctrine
Europe is considering a law that would require bloggers to offer links to replies from those who are criticized. Hmmm, I'll give it a try. Send me your side of the story.
Greedy lawyer shakedown
Alex tells a story about Anne getting falsely sued, and then the lawyer wanting money to correct his own mistake. I'd file a complaint with the California Bar Assn, if I had any confidence in them.
Environmentalism and prosperity
Jared Diamond has a new LA Times column on the correlation between countries with political problems and countries with environmental problems. Diamond is famous for the critically acclaimed 1998 book Gun, Germs, and Steel.

Diamond sounds plausible until he jumps from correlation to cause and effect. He conclude that the environmental problems cause the political problems, and that the USA should go around the world cleaning up environmental problems in order to head off political problems.

I think that it is more likely to be the other way around. Countries that preserve the environment are countries that have well-functioning economic incentives to do so. And that usually requires a decent political system. Once a countries gets a commie govt or a corrupt dictator, the environmental incentives are not there, and then they get ecological problems.

Diamond's book is filled with fascinating stories, but it also has illogical cause-and-effect analyses whenever he tries to draw any conclusions.

There are geneticists who think that genes explain everything, education profs who think education explains everything, nutritionists who think that nutrition explains everything, economists who think that money explains everything, etc. Diamond is a professor of geography and environmental health sciences at UCLA, and he thinks that geography explains everything in the last 13k years of human history. It is entertaining to see how far he can push his theories, but none of them are really very convincing.

Court cannot drug defendant
The US Supreme Court just ruled 6-3 that prosecutors cannot drug St. Louis dentist C.T. Sell. He has been in prison about 5 years awaiting trial for some Medicare overbilling, even tho the maximum sentence would have been 3 years, because the feds say he is not competent to stand trial. There is more info here.

Update: Good coverage in the NY Times and St. Louis paper. The latter quotes Andy:

One such group is the Association of American Physicians & Surgeons. Andy Schlafly, general counsel for the association, said from his office in New Jersey that federal prosecutors had used the threat of forced medication as a tool to get defendants to comply and plead guilty to crimes.

In Sell's case, the government offered to drop nearly 60 counts of Medicaid and mail fraud and money laundering against him in exchange for a guilty plea of two counts. Not long after Sell refused, the government began trying to medicate Sell.

"The defendants are all terrified of being drugged," Schlafly said. "That was a huge piece of leverage that the federal prosecutors had over prisoners and the Supreme Court has called a halt to that."

Liza writes:
The Sell decision seemed like a reasonable outcome based on a confused record. There was a lot of conflicting information on whether Sell is dangerous and whether he is psychotic. And it was odd that the charge that he attempted murder or conspired to murder (I forget exactly what it was) wasn't technically before the court for the drugging issue. I don't know why it happened that way.
Nursing shortage
The so-called nursing shortage has gotten a lot of press, as if it is some sort of national crisis. I don't believe it.

We actually have plenty of nurses, but many of them are dissatisfied and are leaving the profession. A nursing organization has some data, saying:

The study indicates that 1 out of every 3 hospital nurses under the age of 30 are planning to leave their current job in the next year. ... currently 1 out of every 5 nurses currently working is considering leaving the patient care field for reasons other than retirement within the next five years.
So why are the nurses unhappy? I don't know, but complaints include low pay, mandatory overtime, overwork, inadequate patient care, little whistle-blower protection, etc.

I don't see how there could be a nursing shortage. Anyone can goto school and become a nurse. If some hospitals have unfilled nursing positions at the same time that nurses are leaving the profession, then those hospitals are just not offering sufficiently attractive pay and working conditions. I suspect that it is a simple matter of cost-conscious HMOs driving out all the good nurses, and replacing them with lower-skilled alternatives.

This essay suggests that the nursing shortage was fabricated to justify importing a lot of H-1B nurses. If there were really a nursing shortage, then we'd see sharp increases in nursing wages. But we don't. Registered nurses average about $45k/year, according to this survey.

Saturday, Jun 14, 2003
J Lo
Ben Affleck says this about Jennifer Lopez:
There aren't many virgins in their thirties and Jen's about as close as you're likely to find, certainly in Hollywood.
Hmmm. She's been married and divorced twice. And Affleck says that there have been a couple of other lovers as well.
Microsoft says that it is dropped its Apple Macintosh browser, because it cannot compete with Apple. C-Net reports:
Microsoft Product Manager Jessica Sommer ... said that, with the emergence of Apple's Safari browser, Microsoft felt that customers were better served by using Apple's browser, noting that Microsoft does not have the access to the Macintosh operating system that it would need to compete.
Msft used to argue that its control over the DOS/Windows OS did not give it any monopoly power over application software because the API was made available to everyone. I guess no one believes that argument anyway, after it was shown that Msft had secret undocumented calls for its own products.

Meanwhile, Msft's takeover of the browser market is nearly complete:

Overall, Internet Explorer has more than 95 percent of the browser market, according to market researcher WebSideStory, followed by Netscape with somewhere above 3 percent, and all others hovering below 1 percent.
Even AOL, which owns Netscape and had a rock-solid antitrust case against Msft, has settled with Msft and agreed to use Msft IE, not Netscape, for all its customers.

Friday, Jun 13, 2003
Ashcroft's job
US AG Ashcoft refused to use govt money to pay for a party for US DoJ employees, and a NY Times editorial says:
The decision is wrong, and it calls into question whether John Ashcroft understands his duties as head of the Justice Department.
It also suggests that the cancellation might have been illegal, and maybe there was a cover-up as well.

Ashcroft's job includes making decisions about spending DoJ money. I think the NY Times does not understand his job. I guess the NY Times figures that Ashcroft should not be discriminating against an organization that discriminates on the basis of sexual orientation. What would it say about a DoJ-funded party for the Boy Scouts?

Wednesday, Jun 11, 2003
Microsoft hassles ex-employees
John sends this story about how Microsoft uses non-compete agreements and laws to interfere with ex-employees doing startup companies. I am glad I live in California, where such contracts are not enforceable.
Rovoke prize for Stalin's apologist?
A Pulitzer Prize committee is considering revoking its 1932 prize to the NY Times for reporting on Stalin. Apparently the NY Times reporter was a commie who covered up Stalin's crimes.

Stalin's crimes have been known since the 1940s. Is the Pulitzer committee just now finding out? My guess is that now that the USSR has been gone for over 10 years, the American Left no longer needs to defend it.

Update: This UPI article says that the Ukraine famine was reported in 1933, but the reporter was denounced by Soviet propagandists and murdered.

Monday, Jun 09, 2003
Advice of Counsel
I just read a company's annual report that said:
the receipt of a notice alleging [patent] infringement may require in some situations that a costly opinion of counsel be obtained to prevent an allegation of intentional infringement.
It goes on the explain that a finding of willful infringement could mean paying treble damages. The company also reported assets of $433 million.

It is true that a company can usually avoid triple damages by an appropriate patent counsel opinion, but I am surprised to see such an official document phrase it in this way. I write those opinions for a few thousand dollars apiece, depending on the complexity. The expense is peanuts for a company of this size. The exception is that a crooked opinion costs extra. I don't do crooked opinions, but those who risk their reputations on wrong opinions want extra money. Enron paid as much as $1 million for lawyer opinions that certain tax strategies were legal.

Liars in the news
A lot of liars are in the news. It seems clear that Hillary Clinton, Martha Stewart, and Sammy Sosa are lying. G.W. Bush and Colin Powell were probably also lying about the WMDs, but I am willing to give them a little more time to prove their case.

Sunday, Jun 08, 2003
ADA Lawsuits
John sends this story about how disability lawyers abuse the system, and extort thousands of dollars from innocent businesses.

Oppositional Defiant Disorder

If you live near San Diego and have a bratty child, then you can sign up for this UCSD study and put the kid on mind-altering drugs.

Saturday, Jun 07, 2003
Quantum Crypto
The UK Register says:
Much of the interest in quantum cryptography stems from the fact that it is fundamentally secure. This contrasts with today's code-based systems which rely on the assumed difficulty of certain mathematical operations. Ultimately, quantum cryptography seeks to deliver a method of communication whose secrecy does not depend upon any assumptions.
These quantum crypto people are charlatans. There is no such thing as a method of communication whose secrecy does not depend upon any assumptions. Quantum crypto depends on some subtle properties of quantum mechanics that have never been directly tested, as well as an assortment of more mundane assumptions. I wouldn't trust it for anything.
Annex Canada?
John sends this story about how a couple of Canadian provinces might become US states. It wouldn't surprise me.

Friday, Jun 06, 2003
Louisiana purchase
John responds to Andy:
If Martha had only told the truth about her stock sale when she was asked about it, the incident would have blown over quickly without any criminal investigation. At most, she would have had to pay back the $45,000 profit she made on the sale, with no harm to her billion-dollar business.

Instead of telling the truth, she concocted a cock-and-bull story and made a failed effort to hoodwink federal investigators. She and her broker conspired after the fact to tell authorities that they had a pre-arranged agreement to sell the ImClone stock, which of course was totally untrue. Then she made a series of false statements to the public in an effort to bolster the falling price of her own company's stock.

What Martha Stewart did from January to June, 2002, is remarkably similar to what Bill Clinton did from January to August, 1998: She lied; she got others to lie; she doctored evidence to conceal the truth; and when given further opportunities to fess up and correct the record, she kept repeating her false and unbelievable story.

Andy complains that one of the criminal counts against Martha is for publicly proclaiming her innocence. Do you also think it was unfair to blame Clinton for proclaiming his innocence to the grand jury on August 17, 1998? OTC, that false statement was a new lie that compounded all his previous lies.

Likewise with Martha: when she told her own investors that she had done nothing wrong, that she was cooperating with federal authorities, that she had sold the ImClone stock based on a prearrangement with her broker and without benefit of any nonpublic information, those statements were new lies that were made with corrupt motive of hoodwinking investors into buying or holding stock in her own company.

This pattern of conduct should be no surprise from someone who was a big supporter of the Clintons and helped Hillary get elected to the U.S. Senate in 2000. And I would add the anecdotal evidence that just about everyone who has ever dealt with Martha Stewart on either a business or personal level reports that she is the most horrible, unpleasant, vulgar, obnoxious person they have ever met in their entire life. What is surprising is the level of sympathy shown to Martha Stewart here. I frankly don't get it.

Turning to the Louisiana Purchase, whose 200th anniversary we have just observed, Andy has now ratcheted up the issue to a new level. Not only does he think Jefferson exceeded his presidential power in making the deal (which I concede, but that was cured by Congress's subsequent ratification); not only does he think Congress itself lacked the power to make the deal (which I previously rebutted); now he says the purchase was unwise in any event, and should not have been done even if we solved the constitutional problem.

Yes, eventually the Louisiana territory would have broken away from France. Maybe one day they would have asked to join the U.S., as Texas did. It would present a situation analogous to Puerto Rico, if it ever asked for statehood (it hasn't yet). The Louisiana territory would have civilized itself first, without dividing the U.S. in the process.
Louisiana would never have civilized itself! Has Mexico civilized itself? Civilizing the West required the protection of the U.S. government and the U.S. Army.
Such scenario is far more preferable than what Jefferson did, which was to foist the divisive issue of governing new land on us at great expense.
If the point was avoid the fight over slavery in the territory, which led up to the Civil War, your own example of Texas proves that would not have happened. Indeed, what you propose would probably have made the situation worse.
If John still adheres to Jefferson's view that the president can buy foreign land, then how does he reconcile that with his opposition to immigration? Whatta think -- would it be constitutional for Bush to buy a chunk of Mexico?
I would support the U.S. buying Baja California, which is as thinly populated today as the territory we acquired from Mexico in 1848. We should have demanded Baja in exchange for bailing out Mexico's financial crisis in 1994-95. Baja has the potential to be as great a real estate opportunity for the next 100 years as Florida was for the past 100 years.
I still don't see how there could be any constitutional objection to the Louisiana Purchase. And I don't understand Andy's objection either.

John continues to respond to Andy:

John's piling on Martha illustrates how little he cares about growing federal power. Federal prosecutors love to lock up people for insider trading. Defendants can get 3 years in jail without even profiting from it. I'm baffled by Roger and John's views that little or no punishment was initially sought here.
Feds can only prosecute when they have evidence. While Martha's good friend Sam Waksal is definitely going to jail for insider trading. See evidence here and here.

Martha herself has not been criminally charged with insider trading because there is no evidence she was tipped by Waksal. Martha apparently sold her stock simply based on the *fact* that the Waksals were selling, without knowing *why* they were selling.

John wrote, "What Martha Stewart did from January to June, 2002, is remarkably similar to what Bill Clinton did from January to August, 1998 ... Andy complains that one of the criminal counts against Martha is for publicly proclaiming her innocence. Do you also think it was unfair to blame Clinton for proclaiming his innocence to the grand jury on August 17, 1998?"

Grand jury testimony is under oath. Taking an oath can and should make a difference. I'm astounded that John supports the federal criminalization of declaring one's innocence. Clinton was never prosecuted, nor should he have been, for declaring his innocence in his famous White House statement to the public. Yet Martha Stewart is.

Surely you don't think that everyone is free to lie when not under oath? That no one can ever be held accountable for unsworn statements? Clinton was never prosecuted for anything he did or said, whether he was under oath or not. But his "famous White House statement to the public" (Jan. 26, 1998) was undoubtedly a key factor in his impeachment. Many people thought that categorical denial was worse than his cagey equivocations under oath.

Taking an oath is one, but certainly not the only basis for liability for making false statements. As CEO of a publicly held company, Martha was legally obligated to speak truthfully to her own shareholders, whether she was under oath or not.

Likewise, when the government questioned her about her ImClone stock sale, Martha had the right to remain silent. Instead she chose to give a false account of events, in an effort to mislead federal officials.

Also, in contrast to Clinton's subordinates, Martha has no power over the Merrill Lynch stockbroker who collaborates her claim of a sell agreement.
You could say that Vernon Jordan was not Clinton's subordinate, so Clinton had no power over him. But Jordan had his own reasons and motives for conspiring with Clinton to obstruct justice in the Lewinsky matter. Likewise with Martha's stockbroker.
The Martha Stewart defense is historic in another respect. She is using the internet to fight in the court of public opinion.
The web site is pathetic. Martha makes no effort to respond to the specific charges against her, or to defend her indefensible conduct. The parallels between Martha Stewart and Bill Clinton are extremely strong. Just as many liberals defended Clinton to the bitter end because "it's all about sex," so now many libertarians defend Martha in order to vindicate their belief that insider trading should be perfectly legal.

Again, Martha didn't just say "I've done nothing wrong" and leave it at that. She lied about key details and disseminated a bogus story to mislead the government and her own investors. That is why she is going to jail.

John wrote, "Turning to the Louisiana Purchase, whose 200th anniversary we have just observed, Andy has now ratcheted up the issue to a new level. Not only does he think Jefferson exceeded his presidential power in making the deal (which I concede, but that was cured by Congress's subsequent ratification)" What makes you think Congress ratified it? As I said, I think only the Senate approved it. Surely the House had to raise and appropriate the $15 million. John continued, " ...now he says the purchase was unwise in any event, and should not have been done even if we solved the constitutional problem." Right. Jefferson overpaid for land that would have come for free to us later.
Overpaid? Most people thought it was the biggest bargain in history, or at least since we bought Manhattan for $22.
Jefferson also created a hugely and unnecessarily divisive problem. John added, "Louisiana would never have civilized itself! Has Mexico civilized itself? Civilizing the West required the protection of the U.S. government and the U.S. Army." John really does love that federal power. Can't even obtain civilization without it! Texas, of course, proves John wrong. John added, "If the point was avoid the fight over slavery in the territory, which led up to the Civil War, your own example of Texas proves that would not have happened. Indeed, what you propose would probably have made the situation worse." Explanation, please? Texas civilized itself and was annexed without cost or Civil War.
Are you trying to make the argument that the U.S. could have acquired the Louisiana territory the same way we acquired Texas, and that would have somehow avoided the "unnecessarily divisive problem" of slavery? That's ridiculous for two reasons: (1) Slavery expanded in the independent Republic of Texas just as it did in the southern Louisiana territory, pursuant to the Missouri Compromise; after entering the Union Texas contributed to the Civil War by joining the Confederacy. (2) The U.S. ended up paying for Texas anyway; the $15 million we paid Mexico at the end of the war was in large part to settle claims over Texas.
John concludes, "I would support the U.S. buying Baja California" to facilitate building of new resorts. I wouldn't. The federal government should not be spending our money on purchasing foreign land for new resorts. I thought you believed in free enterprise?
I thought you believed in the Rule of Law? Acquisition by the U.S. is a necessary precondition for free enterprise to flourish in Baja California. Of course I am not suggesting the U.S. government build and operate resorts, only that the territory be part of the United States and subject to our laws.
John refers to when Clinton said: "I did not have sexual relations with that woman, Miss Lewinsky." The statement was true. People observed at the time that it was a carefully worded denial, and Clinton was only denying having sexual intercourse with Lewinsky, and the denial was accurate.

Colin Powell says: "It's the media that invents words such as bogus."

Andy responds:

John wrote, "Feds can only prosecute when they have evidence."

Prosecutors falsely convict individuals constantly. Christianity is based on the false conviction of someone.

John wrote, "Surely you don't think that everyone is free to lie when not under oath? That no one can ever be held accountable for unsworn statements?"

John's second rhetorical question is a non sequitur. Accountability exists in many forms without federal prosecution. Instead of asking questions, perhaps John will state his position on whether it should be a federal crime to lie while NOT under oath.

John wrote, "Clinton was never prosecuted for anything he did or said, whether he was under oath or not."

Clinton WAS impeached and subsequently tried for lying under oath.

John wrote, "The web site is pathetic. Martha makes no effort to respond to the specific charges against her, or to defend her indefensible conduct."

John's comments are not substantive. The website demonstrates, for starters, that Martha's alleged lies were statements irrelevant to the main investigation of her, and were prepared by her attorney. The charges amount to little more than prosecuting someone for maintaining their innocence.

John wrote, "She lied about key details and disseminated a bogus story to mislead the government and her own investors. That is why she is going to jail."

Looks like John has already convicted Martha, without hearing a word of testimony.

John wrote, "Surely the House had to raise and appropriate the $15 million."

Only after Jefferson declared it a done deal.

Right. Jefferson overpaid for land that would have come for free to us later.

John replied, "Overpaid? Most people thought it was the biggest bargain in history, or at least since we bought Manhattan for $22."

"Most people"? Citation, please -- and why you feel that what most people thought is relevant.

John offers nothing to dispute the fact that Texas civilized itself without help from the federal government, and then joined the US without causing a Civil War. The $15M that Polk paid to Mexico was mostly for California (where gold had been discovered worth $55M annually by 1951) and parts of 6 other western states.

John wrote, "Acquisition by the U.S. is a necessary precondition for free enterprise to flourish in Baja, California."

Such a purchase would be an expense of taxpayer dollars for the benefit of those seeking to develop Baja. I oppose it.

Roger wrote, "Yes, Bush has said that he likes Scalia and Thomas. ..."

Bush said far more than that. He campaigned by declaring them to be model judges, and that he supports strict construction of the Constitution. This was a campaign promise, and Bush should be held to it. He violates that promise when he files briefs with the Supreme Court that contradict strict construction and disagree with Scalia and Thomas.

Denying that the La Purchase was legal and a good deal just seems wacky. Everyone I've ever heard thought it was a good deal. The burden is on Andy to show otherwise, and his reasons don't make any sense to me.

Scalia and Thomas are the only justices on the US SC that have any respect as having a coherent judicial philosophy. They are respected from both the Left and the Right. To say that Scalia and Thomas are the best on the SC is just belaboring the obvious. That's all Bush said. He did not promise that every DoJ brief would be worded in such a way that Scalia and Thomas would endorse it 100%.

Thursday, Jun 05, 2003
Flying toaster
John writes:
Did you know the guy who invented the screen saver was such a Lefty?
He has started a trendy left-wing web site called MoveOn.org. I wouldn't say he invented the screen saver. Maybe he was the first one to make significant money from the idea. He made a bunch of money on it, mainly with a screen saver that showed a flying toaster. That image was stolen from a Jefferson Airplane album cover.
Andy sends this Wash Post story on how FBI misconduct may have sent innocent people to jail. Including possibly an federal judge.
What is an immigrant?
John writes:
Here's a good test of your definition of immigrant. Although these aliens have lived illegally in L.A. for "years," they think of a Mexican village as "home" and plan to return there someday.
He also sends these articles:
  • Overseas tech jobs proliferate/More Silicon Valley companies find cheaper labor in other countries
  • Techies see jobs go overseas/Opposition to offshore outsourcing beginning to grow
  • (VDARE) Joe Guzzardi on NY Times immigration bias

    I said that an immigrant is someone who was an alien, and who came to the USA intending to stay. I argued that it does not depend on legality, allegiance, or politics. John responds:

    I believe that dictionaries back me up. Perhaps it would have been more precise to say an immigrant is someone who was an alien, and who came to the USA intending to stay. The point is that it does not depend on legality, allegiance, or politics. A good test of Roger's proposed definition of "immigrant" is yesterday's report of the Inspector General of the Justice Department concerning the alleged mistreatment of the "detainees" after 9/11. This report was front-page, top of the news throughout the liberal media for the last 24 hours.

    Every news article about this report called the detainees "immigrants" - all of them. After paraphrasing the report about the 762 so-called "immigrants" - using the word many times (and no other word) - the news media then went on to quote people described as "advocates for immigrants" and people who support the "immigrants' rights."

    A search of the actual 239-page report, however, reveals that the word "immigrant" does not appear even once! (although "nonimmigrant" is used several times).

    Does Roger think these alien detainees intended to stay here - ALL of them?

    I could not determine how many, if any, of the detainees had green cards or other evidence of intent to stay. The vast majority entered the U.S. on tourist, business, education, or employment visas. Such visas constitute a formal, public declaration that they do *not* intend to stay! Many overstayed their visas (perhaps they changed their mind after they got here?) and many entered illegally in the first place.

    Suppose there is a conflict between some someone's secret intention and a public declaration to a government official - which intent is binding?

    One principle you learn in first-year contracts is that what binds a contract is not secret agreement or disagreement (a "meeting of minds"), but public manifestation of your intent to be bound.

    Hence, my definition of immigrant is someone who publicly, formally, officially and legally declares his intent to abandon his former home and reside permanently in the United States.

  • Wednesday, Jun 04, 2003
    Here is an example of an annoying Copernicus statement that comes from someone who should know better.
    In "The Extravagant Universe," published last fall by Princeton University Press, Dr. Kirshner wrote "We are not made of the type of particles that make up most of the matter in the universe, and we have no idea yet how to sense directly the dark energy that determines the fate of the universe. If Copernicus taught us the lesson that we are not at the center of things, our present picture of the universe rubs it in."
    Copernicus did not teach us that lesson.

    George writes:

    Sure he did. Copernicus proved that the Earth went around the Sun, instead of the Earth being at the center of the solar system.
    No, Copernicus proposed a model in which the Earth went around the Sun. He was not the first, as ancient Greeks like Aristarchus and the Pythagoreans had similar beliefs. He did not prove it either, and there was no convincing scientific argument for a heliocentric model until the work of Kepler and Galileo about 100 years later. The Copernican model was no more accurate than the Ptolemaic model, and each model had various pros and cons that existing science could not resolve.
    Global warming
    John says this article has a good summary of the latest science on Kyoto/Climate Change.
    Sammy Sosa
    Cubs star Sammy Sosa got caught with a corked bat. He says it was a mixup, but I don't believe it. Nobody uses a corked bat by mistake.
    Lessig's copyright plan
    Law prof Larry Lessig is pushing his $1 copyright renewal plan. Here is the Slashdot discussion.

    I still don't think it makes much sense. It violates Berne, and biases the big companies.

    How about this. Suppose that after 20 years, a copyright owner must:

  • put a copy on the web for scholarly fair use.
  • post notice of license terms.
  • post evidence of recent sales.

    If the copyright owner fails to do so, then the public can presume that the work is in the public domain. The copyright owner could still sue, but there would be an innocent infringer defense that makes it impossible for the owner to collect damages unless he can prove that the alleged infringer knew that the owner was still enforcing the copyright.

    If there is no evidence of recent sales, or a license offer at reasonable terms, then an expanded fair use doctrine would allow a lot of usage that is not allowed today.

    Update: Lessig now complains about the US Supreme Court's Dastar opinion. He says:

    Justice Scalia writes, “To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft.” But this line show why it would have paid for the Court to pay more attention to the originalism in Eldred. For this line betrays a confusion about what “copyright law” was — at least — originally. And under an originalist reading of the copyright power, there would be no Copyright Clause problem with Congress requiring attribution for public domain works.
    So Lessig thinks that it would be perfectly ok for Congress to require perpetual attribution rights under the Commerce Clause!

    I thought that Lessig was a clerk for Scalia. I would think that Lessig would understand Scalia a little better.

  • Sunday, Jun 01, 2003
    One-handed driving
    The Si Valley paper failed to print my letter today.

    One silly editorial says:

    It looks like there might be a law. The California Assembly on Thursday passed a bill to require drivers to use a hands-free device when talking on the phone while driving. ...

    The penalty for one-handed driving would be modest -- $20 for the first violation, no more than $50 for subsequent ones.

    I hope it does really penalize one-handed driving. I always drive with one hand, and I believe that it is a safer and more convenient way to drive, whether I am talking on the phone or not. Some people have trouble driving with one hand, but maybe those people shouldn't even have drivers licenses.

    Another silly editorial says:

    The best line of defense for Davis is that recall proponents are acting out of political opportunism. The more that Republican officeholders jump aboard the recall train, the easier that line is to sell.
    If that is California Gov. Gray Davis's best line of defense against being recalled, then he is in serious trouble. Of course politicians are opportunistic. If that helps remove Davis, so much the better. Davis has been a terrible governor, and needs to be removed. When he took office 4 years ago, the state had a surplus. Since then, tax revenue has been up 25% and we have a $36B deficit. And that doesn't even include the tens of billions of dollars he wasted on energy regulation and MTBE.