Thursday, June 30, 2005

Media Review - Land of the Dead

One of last weekend's diversions. I don't go to the movies as much as I once did, relying instead on my Greencine and Netflix subscriptions to keep up with whatever recent releases I feel compelled to keep up with. I'm more likely to see a new movie, oddly enough, as a social event. I don't even succumb to "must see" pressure like I once did.

Except when it comes to zombie movies, of course. Romero returns to his genre, the ghoul-horror movie, after about 20 years absence. I'd heard rumors about a "Twilight of the Dead" script beginning back in the '90s, and some of the ideas from that story appear to have survived to lumber into this retitled movie. Romero was also involved for awhile with the Resident Evil adaptation and when his script was rejected I almost wrote off the project, but it turned out OK. Land of the Dead is something of a disappointment, however.

It'd be a mistake to reduce the extraordinary qualities of Romero's previous entries in the Dead series to one or two elements, but the overall effect produced by Night, Dawn and Day's bizarre genre-defying audaciousness, their willingness to take their premises seriously without denying their absurdity, is missing from the new one. Within the Dead series, Land is comparatively prosaic. Rather than twist expectations, Romero seems content largely to satisfy them. The most glaring element missing from this entry is what some critics have called "survival politics," a term derived from the Vietnam war, in which the characters' conflicts and loyalties among themselves are as important as the conflict with the undead.

I haven't checked out the response of the horror faithful online to Land of the Dead, but I'm sure there are "sell out" accusations being lodged, unhelpful though such things usually are. A lot has changed since the mid-80s, among them the circumstances of independent production and distribution. Also, Romero's genre has been domesticated in the last 20 years by copycats and parodies, although Resident Evil and 28 Days Later demonstrate that there are still interesting avenues to take. Romero himself has probably changed in this time as well. Since Day of the Dead, Romero has made only three feature films: the very interesting Monkey Shines, The Dark Half (which I haven't been able to sit through), and the provocatively abstruse Bruiser. I'd recommend the latter to anyone (full stop) who would like to see American Psycho shorn of Bret Easton Ellis' preoccupations with yuppie culture and status issues (which he regularly mistakes for class issues.) It's a bit weak in the third act, but many Romero films are.

You can't say that Romero has totally changed his spots with Land. The gore effects are, as usual, top notch, and he doesn't slight the political angles his films always carry. In fact, this might be the most overtly political of his films, save perhaps The Crazies, and it doesn't improve the movie. Dennis Hopper appears as an arrogant plutocrat ruling over the squalid remains of Pittsburgh from an opulent tower community, closed off from the rabble outside. Hopper combines the maverick entrepreneur, cheering for creative destruction, and the entitled leisure class who governs with slogans and a total lack of principles. The class issues are front and center, but obvious and struggle for attention with the generic action sequences and plot.

The most interesting development from Dawn to Land is the evolution of the dead themselves. In Night, the dead appear to be deranged, even supernatural, but by Dawn they start to resemble a basic, feral version of humanity, driven by reflexive impulses like hunger and greed. In Day, we learn that the dead don't feel hunger at all in a conventional sense; their perpetual desire to feed is an instinct unrelated to need, almost as if they were designed and programmed as an act of revenge on humanity (like in Plan 9 from Outer Space.) In Land, we finally see the dead evince motives that we can identify with, like anger. Their attack on Fiddler's Green is an act of revenge by a newly politicized underclass striking back at Hopper's Nero.

Still, all this is a bit didactic. As a movie, Land is competently directed and decently acted, but nothing special. Romero seems to have taken care to rein in Hopper's excesses with varying results. Asia Argento is welcome, although though she appears mainly to fill a gender quota and nod to old guard Dawn fans. Maybe it will look different with a little distance.

I'd started to review Batman Begins in this post as well, but I think its long enough without. I'll put that up later.

OK, this is fantastic

Michael Jackson rules Nintendo.

Wednesday, June 29, 2005

Never can say goodbye

The Supreme Court Nominations Blog catches a comment about vacancies from Clarence Thomas yesterday in an article from the Fulton County Daily Report. Thomas, in Atlanta for the swearing in of Leah Ward Sears as chief justice of the Georgia state supreme court, made a reference to "imagined resignations." This is leading some to consider that Rehnquist is planning to hold on for another term.

That's possible, but I see another reading of Thomas' comments. Like many of the justices, Thomas often comes across as hostile to the speculations of outsiders about how the Court operates and what the justices do. Scalia, especially, seems to cop a "how dare you interlopers turn your vulgar curiosity toward your betters?" attitude on occasion, as evidenced in his recusal memo last year. I'm reminded of the scene from The Madness of King George, wherein the King's doctor tells him "I have you in my eye, sir.." indicating that the doctor stands in judgment of the sovereign's conduct, to which the King responds: "I am the King. I tell, I am not TOLD. I am the VERB, sir, not the OBJECT."

From this point of view, the adjective "imagined" as used by Thomas isn't a description indicating that resignations aren't forthcoming as much as an insult, derogating the controversy as based on unworthy supposition or conjecture.

In other vacancy news, Robert Novak's column from Monday reports on leaks that AG "Oooh" Alberto Gonzalez is front-runner for Bush's first nomination to the Court. Gonzalez has a big fan in the President, but none among his conservative base and Novak makes it clear that Bush could appoint Gonzalez only at the cost of alienating conservatives. He goes on to write that the leaks might be a trial balloon or that "Gonzales's name has been floated by critics in order to shoot him down."

And somehow, those leaks all got to Robert Novak. Weird.

L. Strine gives corporate malefactors goosebumps

A new piece in Legal Affairs offers a glowing portrait of Vice Chancellor Leo Strine of the Delaware Chancery Court, referred to as possibly "the nation's most influential corporate law judge." Beyond giving some hope to those of us who would like to see some improvement in corporate governance, the article also contains a brief, cogent explanation of Delaware's incorporation dominance and the differences between law and chancery courts. There's also some background on the means by which Delaware maintains its corporate supremacy, which typically bodes ill for improvements in corporate responsibility rules.

Tuesday, June 28, 2005

Kelo responses: hysteria, position-taking and humor

I really do plan to move on from this topic, but there are a few more things related to Kelo worth posting about.

First off, I read over Stevens' majority opinion again to see if the facts supported a state authorization requirement of the sort I suggested in yesterday's post. They do, mostly: in fact, Stevens makes clear (in II) that Connecticut state law indicated that economic development constituted a "public use" and that the New London Development Corporation received state-level approval (see footnote 2.)

Although the basis is there, Stevens' presentation and treatment of these facts is unsatisfying. First, it isn't clear from the opinion whether these facts are material. Would a future development taking be legitimate under Kelo without such state-level authorization and approval? I wish Stevens had made these circumstances explicitly material. Even if a state has the authority to engage in such takings, it does not follow that that authority is delegated to local officials merely by incorporating the localities.

Second, it doesn't say in the portion of the Connecticut municipal development statute quoted that private development constitutes a "public use." Admittedly, it doesn't say only public development (like government leasing property to private developers) is public use either, but the Court should demand more accountability at the state level for the exercise of eminent domain actions if the justices really want to realize cognizable limits in the Public Use condition.

I think this approach to giving form to Public Use is better than Kennedy's judicial "demanding scrutiny" for a hypothetical class of suspicious private takings (what Dahlia Lithwick refers to, with puckishly Dworkinesque phrasing, as "taking allegations of pretextual transfers Awfully Seriously," capitalization in original) because it puts the judgment and control over takings where it should be, with the states themselves. Also, since the application of the Takings Clause to the states is accomplished through the Due Process Clause of the 14th Amendment, a process-based solution is appropriate.

In other notable reactions to Kelo:

Republican John Cornyn of Texas introduced the "Protection of Homes, Small Businesses, and Private Property Act of 2005" in the Senate yesterday. So far, there are no consponsors, but I'll be curious to see what action (if any) follows. In his introductory remarks, Cornyn couldn't help but use the occasion to boost Janice Rogers Brown, even though many supporters of Brown would never support Sandra Day O'Connor, whose Kelo opinion Cornyn quotes at length in his remarks. I'm curious to follow the Republican responses to Kelo, since the decision (and the generous reading of economic development as legitimate public purpose) sets Kaldor-Hicks-type efficiency arguments (favored by neo-conservative economists and business conservatives) against natural rights populist arguments (favored by libertarians.)

The funniest response I've seen so far is from Freestar Media. I'm not sure why they're picking on Souter; maybe it's a New Hampshire thing.

Seriously, the Kelo decision is interesting, but I'm not going to write about it any more. The Ten Commandments, Grokster and Brand X (open access for cable broadband) decisions are all interesting as well, and I'll write or link to something about them (depending on whether I have anything useful to say.)

Monday, June 27, 2005

"God watches over little children, drunkards, and Antonin Scalia"

The Ten Commandments cases are a mess, so much so that the least ridiculous opinion of the lot is Breyer's in Van Orden v Perry, finding that the religious display in question isn't unconstitutional because it doesn't seem unconstitutional.

The title of this post is adapted from a quote in Scalia's dissent in McCreary County, which he attributes (willfully) to Charles de Gaulle. I like Scalia's opinion here for various reasons, particularly its candor, although this subject doesn't present Scalia at his best.

For those who might be bored with all the Court-related stuff appearing here, I do other things too. I even saw a couple of movies this weekend, which I might write about shortly. I've also been thinking about a roundup post about music I've been listening to recently.

Kelo consternation and confusion

I've read a couple of today's decisions and will have some thoughts soon, but here's the belated post about last week's Kelo v New London that I left hanging.

Reactions to the Kelo v New London decision have been blooming all over the web, including speculation on the Volokh Conspiracy that O'Connor's dissent was originally the majority and a response on SCOTUSblog. I suppose it's possible, but it seems to me that if O'Connor's opinion had begun as a majority, she had to sever a good deal of it.

Outside the professional courtwatchers, folks at Metafilter have been venting about the decision to the tune of 150 comments. Many of the posts seem frustrated or perplexed at the position of Kelo author Stevens and Clinton appointees Ginsburg and Breyer siding with New London against the petitioners, since the case is framed as a conflict between state-assisted corporate development and the sanctity of the individual landowner. However, the respondent here is a Connecticut municipality, not Pfizer, and the question at issue is the extent of government power to respond to public economic problems (ostensibly) rather than the general preference for corporate over individual ownership of property. The different ways of framing the decision are interesting, however, and I'll return to it in a second after giving my own reaction to the decision.

Steven's opinion is more sanguine than I would like about the implications of local government economic development decisions. The dissents are interesting, because Thomas, who is undoubtedly further away from Stevens on the interpretive questions, appears less upset personally about the decision than O'Connor. Thomas' dissent is heavily burdened by qualified and contentious assertions about the "original meaning" of the Public Use standard (and boldly quotes Morton Horwitz, whose research demonstrates the exact opposite of the legal development Thomas is alleging), but O'Connor is angry over what she perceives as a reasonable position (her majority for Midkiff) being distorted to bring an end to the security of private property.

Kennedy's concurrence raises several interesting issues, both as a piece of legal handiwork and in more pragmatic terms. As an opinion, it's typical Kennedy: strike a note of moderation, acknowledge some legitimacy to dissenting concerns, and leave the question of standards open. He even cites his own discretionary opinion in Apfel in favor of some narrowly applicable shift in presumption under Takings review. He seems to be proposing either a more robust form of rationality review in economic rights cases, or possibly a wider spectrum of review standards than the three typical of civil rights jurisprudence.

In terms of legal development, Kennedy's opinion is interesting because, as a 5-4 decision, his membership in the majority opinion coalition is necessary to imbue it with precedential value. Much like Vieth v Jubelirer from last term, Kennedy knows how to get mileage out of his fifth-vote appearances. From a vote-counting perspective, that clearly means that in order to get 5 votes for your taking, a city needs to satisfy Kennedy's criteria. I don't think it means that Kennedy's concurrence has formal precedential value, but who really cares? It's bound to be more widely cited than a concurrence in a 7-2 or 9-0 case.

To return to the framing question, respondents on Metafilter and elsewhere see this as an individual rights question, while Stevens and many (but not all) observers frame the question as one of judicial intervention into economic policymaking. Judges, the post-New Deal consensus holds, are ill-equipped to second-guess the choices governments make in economic affairs, including their exercise of eminent domain authority. Kennedy's opinion attempts to thread the needle, recognizing the necessity of deference to policymakers, but cognizant of the enumerated individual rights asserted in cases like this (that being private transfers for development purposes.) For O'Connor, "cases like this" deserve no deference.

For that matter, you could see this case from another perspective entirely. Rather than seeing the Stevens/Breyer/Ginsburg and Rehnquist/Scalia/Thomas bloc votes as curious, try figuring out O'Connor's position. She's often a states-rights voter, but in this case she strongly opposes the exercise of a traditional state authority (eminent domain) set against an individual rights claim. Whether her efforts to distinguish Kelo from Midkiff really make sense or not, the focus in her opinion is decidedly on the individual rights dimension and not so much on the state power versus federal prohibition dimension.

Kennedy's position is another punt to the lower courts to devise criteria for distinguishing suspicious private transfers by the government from legitimate ones. At times like this, he strikes me as a Richard Posner-style pragmatist, but with decidedly different sensibilities. I can imagine another avenue, though, as an alternative to searching judicial inquiries into the motives and public goals of private transfers via takings. In such private transfer cases, courts could inquire not so much (or merely) into the likelihood of suspicious or corrupt private favoritism as into the degree of state authorization for such activity. Stevens assures us that states can place limits on local governments' exercise of eminent domain, but there's no evidence that states will exercise that responsibility. One way for courts to potentially goad states into policing the takings of their county and municipal creations is to require general or explicit state level authorization for takings intended for private transfer and development. That standard would certainly be satisfied by Midkiff, but I'm not sure for Kelo. It would also increase the cost to developers of using state power to seize land, since they'd have to pay off the local and state governments. It would also potentially impose political costs on state actors for the activities of local governments, leading to greater direction from legislatures.

Ah well, it's a thought.

Rehnquist-Watch

Goldstein & Howe have inaugurated a Supreme Court Nomination Blog to track developments on... well, potential Supreme Court nominations.

On that note, the NYT has an article describing the widespread dissatisfaction (to understate matters) with Justice Kennedy on the Right.

Last minute SCOTUS scrambling

End of Term always brings a core dump of as-yet unannounced decisions and I always imagine the assigned justices dealing with the deadline as I would, pounding away all night with coffee mainlined into my arm, searching through old papers for vaguely related text I can drop in to fill up space, wandering off-topic as the dawn approaches, etc.

The Court struck down a Ten Commandments display in Kentucky while upholding another in Texas, both 5-4. The former decided by Souter joined by the liberal bloc and O'Connor. Justice Breyer split on the cases. Interestingly, both were affirmances, so I doubt we'll get much resolution from the decisions. A 6-3 ruling interpreted the Communications Act not to require cable companies to provide competitors (ISPs) access to broadband lines. Thomas wrote the opinion, which takes the same position as the FCC and so may be based more on the degree of deference appropriate to executive commissions, rather than a substantive reading of the statute. Of course, Thomas and the majority coalition likely found that a principle of deference and substantive conclusions happily coincide in this case.

Summaries of these cases and a few others here.

Unanimous reversal in MGM v Grokster, not unexpectedly. Haven't read the opinion yet, but Souter appears to rest the conclusion in part on evidence of "affirmative steps taken to foster infringement" by software developers, presumably to distinguish this case from the Sony Betamax case.

More later, if anything strikes my interest.

Good read for a Monday morning

I'm something of a coffee fiend and thus my attention perked at the sight of this review of a new book documenting a history of the bean and drink. As the review points out, histories of the world from the point of view of a particular concept or commodity have proliferated in recent years, each promising that its obscure subject has been crucial to the shaping of the Western World or the Universe As We Know It, or something like that. Whenever I sample one of these I'm reminded of one of Stanislaw Lem's pieces from A Perfect Vacuum, one of Lem's Borgesian collections of nonexistent book reviews, in which a professor seeks to undermine modern probability theory (actually, modern frequentist probability theory) by estimating the probability of his own birth. Of course, looked at closely enough, many outcomes appear to hang crucially on a lot of otherwise trivial circumstances, but that doesn't mean that those circumstances are important.

The "How Macadamias Saved Civilization" fad has produced several histories of coffee, including Uncommon Grounds by Mark Pendergast, which is on my Amazon wishlist, and The Devil's Cup by Stewart Lee Allen, which I read some months ago. Pendergast's book appears to be the most orthodox treatment of coffee's commercial and social history, as Allen's book is more travelogue/personal odyssey than it is a treatment of historical scholarship. That said, The Devil's Cup is quite entertaining. Once I get through them all, maybe I'll write a collected review.

Friday, June 24, 2005

Don't Grok what you can't parse

Among the other late-term confections expected Monday from SCOTUS is the MGM v Grokster decision. I wrote earlier that I think this is another case of a 9th circuit decision pitting the conservative case outcome preferences of certain members of the Court against their desire to see generally conservative legal principles, much like Raich.

The NYT has this coverage of the blogosphere speculation. Most seem to anticipate a reversal, which I agree with, although I wouldn't be surprised if it was a narrow reversal more suggestive of future legal developments than instructive. On that note, I also agree with Edward Felten that this decision will punt, once again, any difficult legal questions into Congress' territory.

Thursday, June 23, 2005

K-e-l-o my land lord

Been teaching and getting things done today, so I'm just getting to read the Supreme Court's decision in Kelo v New London (the NYT story on the 5-4 decision is here). Based on my brief scan, I'm particularly interested in Kennedy's concurrence (like I wouldn't be anyway.)

Will likely have more to say later.

Wednesday, June 22, 2005

Damn - Update

Mondo Kim's was raided by police for piracy, with five employees taken away in handcuffs. I think I visited Mondo Kim's once when I lived in NY (I was a more frequent patron of Kim's Underground on Bleecker) but the idea of them getting raided is kind of chilling.

UPDATE

More details emerge regarding the raid on Mondo Kim's. I've been out of town and am just catching up with this. Lots of speculation about label involvement and confirmation of RIAA and MPAA presence. Although the allegations made by officials are focused on the production of bootlegs, the charges (trademark infringement and failure to disclose the origin of recording) are labeling offenses that require only that the offenders be aware that they are vending illegal materials, rather than making them.

Frankly, the idea of the RIAA seizing mixtapes is bizarre. To pick the obvious example, 50 Cent's multi-platinum status was guaranteed by his notorious mixtape success. Kelefa Sanneh makes note of some of the ironies in this piece in the NYT.

Thursday, June 16, 2005

Suit for a Hoot

Three former students at Southern Illinois University at Carbondale are suing Hooters Air for stealing their "concept, plan and work product" for the airline.

In truth, I was thinking about suing Ashton Kutcher earlier this week, since I came up with the idea for Beauty and the Geek fifteen years ago while I was studying for a physics exam. But, these guys actually gave their idea to a guy who works for Hooters. Naturally, Hooters says there's nothing to their claim, but I've visited SIU Carbondale and I can easily imagine their undergrads coming up with that idea.

Wednesday, June 15, 2005

This day in political mayhem

I have a morbid fascination with politically inspired violence and June 15th is the anniversary of Wat Tyler's death, leading to the end of the Peasants' Revolt of 1381. I read a book years ago contending that the Revolt (also known as "Wat Tyler's Rebellion") was fomented by a Great Society that was descended from the suppressed Knights Templars and would later reemerge (over 200 years later) as the Freemasons. The main argument of the book is that after the Order of the Knights of the Temple of Solomon were suppressed in the early 14th century and much of their property given to the Knights Hospitaller, the remaining Templars went "underground," maintaining their weird occultish rituals and recruiting new members who were antipapal, anti-authority malcontents. This organization eventually evolved into the Freemasons, whose weird occultish rituals bear certain resemblances to the Templars'. Much of the author's evidence is circumstantial and doesn't eliminate the possibility that the Masons just borrowed stuff from the Templars, whose lore drew from and contributed to all the alchemical rosicrucian catharist illuminati stuff infecting medieval Europe. His extended analysis of the Peasants' Revolt is the strongest evidence of an organizational continuity between the two, although it isn't airtight either. A very interesting read, though, back when I was a hyperactive paranoid undergrad who could've passed for one of the characters in Foucault's Pendulum.

Media Review - Enron: The Smartest Guys in the Room

My Greencine queue is flush with documentaries from the last 18 months or so I haven't seen yet, but I caught this one over the weekend with friends. I haven't read the book on which it was based, but sampled a good bit of the journalism about the scandal as it was unfolding. I did learn a few things from this doc, but I'm not sure they were very useful things.

Movies like Enron can be successful because they elicit the reaction from the audience that the filmmakers intended to create, and on that criteria this movie is pretty successful. If you didn't already have a low opinion of Ken Lay, Jeff Skilling, Andy Fastow and Enron's corporate culture, you will afterward. A documentary can also succeed by providing information about a subject you hadn't heard before, and few are likely to have known everything about the development and collapse of Enron the movie presents.

Docs can also give viewers a broader or deeper perspective on some subject than you can get elsewhere, and here's where I think Alex Gibney (writer/director and also writer of the nonfiction film The Trials of Henry Kissinger, a largely successful treatment of Christopher Hitchen's similarly titled book) falls short. Some of the people I saw it with thought that Enron failed to provide enough illustration of the substantive harms wrought by the company, and the film would probably have been more successful in the first goal above had Gibney done that. I would have preferred more substance on the question of what made the Enron scandal (and several other, equally startling corporate failures like WorldCom and Tyco) not just possible, but likely.

This kind of response risks criticizing a film for not telling you what you already know/believe. I wasn't too enthusiastic about the torrent of agitprop nonfiction films last year partly because I don't want to be stuck in an echo chamber. Still, I got the impression from Enron that its makers did not think that Enron's perverse corporate culture and disasterous trajectory were merely the result of the personality flaws of its executives. In fact, Gibney raises unreflective faith in markets (and the unrestrained exuberance for deregulation) several times early in the film as a contributing factor to Enron's identity, but doesn't explore the subject. I would compound that factor with the significant problems of corporate governance diagnosed in the last decade, but corporate governance isn't really dealt with at all in Enron. I don't think Gibney wanted to blame Enron only on Lay and Skilling's villainy, it's just that villainy has a powerful hold on the imagination.

Lay and Skilling do make compelling figures, as villains often do, but I'm not comfortable casting them as such. Both are facing criminal charges, but I wouldn't bet the farm that either of them, especially Lay, will get any serious punishment. Andy Fastow, who has already pleaded out and is doing time (as is his wife) was the white collar equivalent of a hood: the guy the crime boss tells to go out and take other people's money. It's easy to pinch the hood, less so to get the boss. Of course, Fastow is now a government witness, but his testimony will possibly be of questionable value given his plea deal and general unscrupulousness.

But there are other reasons I think Lay and Skilling might walk and why I'm reluctant to cast them as crooks whose deviant arrogance and greed made Enron into the disaster it was. The "ideology" of deregulation referred to in Enron, particularly by reliable talking head and former Nixon strategist Kevin Phillips, and the simplification of corporate responsibilities in recent decades can make Lay and Skilling's actions seem not merely defensible, but virtuous. Also, belief in "market extremism" (as Phillips has called it) and the reduction of management evaluation to stock price measure are sincerely held, even now, by many people. Where others see fraud and self-enrichment, people like Lay and Skilling see risk and reward, the spine of free enterprise.

I'm not saying that we shouldn't disapprove of Lay and Skilling because they didn't see themselves as bad guys, but if a large and respectable segment of elite opinion holds that market forces inexorably drive companies to produce value and that the only duty of managers is to increase stock price, it's not criminally irrational for them to believe it too. As Thomas Frank points out in One Market Under God, the idea that markets are equivalent to, or perhaps more important than, democracy isn't confined to elites anymore. Decades of effort by believers in "market populism" have led many people outside of the boardrooms and country clubs to equate consumer choice and market freedom with democracy.

Moreover, these attitudes are reflected to some extent in corporate law. I imagine that civil suits against Lay and Skilling will run into trouble, particularly in Texas, because shareholders will have to argue that Lay and Skilling were actually harming them despite the fact that their efforts, at least in the short run, were dedicated to inflating the value of those assets. I couldn't help but notice the irony in how Enron built its supercorporation status by perfecting the production of performance indicators, rather than value, a problem typically associated with the Soviet Union and other centralized economies.


It seems to me that the more pernicious effects of separated ownership and control, with the consequent "weak owners/strong managers" phenomenon, combined with substantial elimination of the public responsibilities of corporations and executive compensation policies that turn managers into insider-institutional investors contribute substantially to situations like Enron and WorldCom. However, watching Enron doen't come close to preparing someone to evaluate whether the Sarbanes-Oxley Act, the primary congressional response to the Enron collapse, will do anything to help the situation.

Maybe I wanted to watch a different movie, like The Corporation, which looks more like what I'm talking about. I haven't seen that yet, partly because of my aversion to agitprop and I see Chomsky in the cast list (but Peter Drucker as well, who is fascinating.) Still, it seems like a close look at the Enron case might have yielded some insights that a general look at corporations wouldn't. I enjoyed watching Enron, but I left it a little disappointed. Maybe I should have expected a movie subtitled "The Smartest Guys in the Room" to focus primarily on the personal qualities that led to Enron, the company and the scandal, rather than the legal/institutional causes.

Tuesday, June 14, 2005

Madonna Regrets Entire Career

OK, she didn't really say that, but it's the first thing I thought of when I read the headline, Madonna Regrets Sexy Past.

Thursday, June 09, 2005

Just Do It, drink with bloggers, that is

Attended the APWBWGTTD at Highlander last night, which was fun. The meetup combined bloggers and flickr folks, both of whom tended to cluster together with overlap defined mainly by people who belong to both groups. Although the groupings were clearly not random, I think the relative lack of mingling (although mingaling was there and has posted the roll call) had more to do with the size of the collective than fear and distrust among the tribes. With as many people as there were, it was inevitable that subgroups would form.

Not that there wasn't fear and distrust between the bloggers and photogs. I'm not much of a shutterbug, or much of a blogger, for that matter, but I knew that in the event of a misplaced footfall on the wrong pair of shoes or a misspoken reference to aperture size, everything could turn ugly in a matter of seconds. I suggest that at the next meeting, everybody should wear blue or red bandanas in their back pockets so we'll know who to stick when things pop off. Those who swing both ways can beat themselves up.

Foolishly thinking I was in safe company, I recounted a story about a colleague who realized the gulf between himself and his students when he asked a class if anyone knew the significance of the phrase "Is it the shoes?" and only one person raised their hand. I figured I'd get some sympathy, but instead I got a look of puzzlement from across the table on the face of a blogger who didn't remember the Michael Jordan-Spike Lee Nike campaign for Air Jordans. I was afraid to ask if the phrase "Bo knows..." meant anything to him.

Supreme Buzzkill, or the end to Nice California Dreams

So the Supreme Court reversed the Ninth Circuit's decision in Gonzales v Raich, 6-3. "So what?" you're asking, "the Supreme Court reverses the 9th all the time." This one has lit up constitutional law commentators all over, however, and has been blogged to death, not without reason. It's not because the decision was so unexpected (although it was to some, mysteriously) or that it produces any substantial change in current law (although it might have some impact on the development of Commerce Clause doctrine in the long run.) What's interesting to many people is the split it produced within the States Rights Party on the Court: Kennedy and Scalia voted with the majority, while O'Connor, Rehnquist and Thomas dissented.

I wrote about this case before, back when it had just been argued and was still called Ashcroft v Raich. The substitution of new AG Alberto Gonzalez for Ashcroft makes me wonder again whether DoJ staff make fun of Gonzalez behind his back, running their fingers through their hair and cooing "Oooh, Alberto!" Because that's what I would do. Anyway, I notice that I didn't offer any explicit predictions in the case, but suggested that Scalia would vote to overrule the circuit and that Thomas would side with the appellees, both of which turned out to be accurate. I guess you could say I was expecting the Court to reverse the 9th, which I was, but I didn't really make that clear.

Shortly after the decision was announced, when the only info available was that the decision was against Raich, et al and that it was 6-3 with Stevens writing for the Court, I spotted an email bulletin from a prominent attorney assuming that the dissenters were the Chief, Scalia and Thomas. I doubted Scalia was the third and wasn't absolutely sure about Rehnquist, but figured the third dissenting vote was probably from O'Connor, whose states rights bona fides strike me as stronger than Nino's. Before patting myself on the back too much, though, I was surprised it was 6-3. I was more expecting 8-1, with Thomas rolling solo. Scalia, it seemed to me, made a good argument that this case just wasn't distinguishable from Wickard v. Filburn and that only Thomas (among the Lopez Five) would not see that as a problem. It was also possible that those justices would not see any way to retain the federalism ground gained in Lopez without affirming the appeals court, a view given support by O'Connor and Thomas' dissents. The four Lopez dissenters were easy to predict, so I figured the decision would either be a 4-5 repeat of Lopez and Morrison or 8-1 as everybody but Thomas either abandoned Lopez or tried to distinguish this case somehow so the War on Drugs could continue unabated.

Consider me surprised, but not really disappointed. The split between Kennedy and (especially) Scalia and the rest of the Lopez Five more than makes up for not getting the votes exactly right. Stevens notes the "striking" similarities between Raich and Wickard and goes pretty far to making it sound like this case was easy, despite the "troubling" facts. Stevens distinguishes Raich from Lopez and Morrison on the basis of the "economic" nature of marijuana cultivation and consumption, in contrast to the activities (gun possession and violence against women) at issue in the previous two cases (which goes to show you how much the justices know about criminal enterprises.) He leaves relatively unelaborated, however, just what kind of activities might qualify as "affecting" commerce and how "substantial" that effect has to be.

Scalia's concurrence is especially interesting, since it's not as zesty (or testy, depending on your taste) as he can be when responding to critiques. He grounds the regulation of noneconomic intrastate activity in the Necessary and Proper Clause when in pursuit of a "comprehensive scheme of regulation," that being to "extinguish the interstate market in Schedule I controlled substances." Tantalizingly, this suggests that Scalia accepts the appellee's argument (made by Randy Barnett in oral) that medical marijuana use in accordance with CA law is noneconomic activity, a conclusion the majority soundly rejects. Scalia, it seems, wants to preserve the possibility of defining certain activities as "noneconomic"--even those that appear to be clearly "economic" to the untrained eye, like making a commodity and consuming it--at the expense of allowing congressional regulation of that activity if it's necessary to achieve regulation of an interstate market.

I think Scalia hinted at this justification in his comments at oral argument. Lithwick recounted his "eagle feathers" example of commodities whose possession is illegal regardless of their relationship to interstate commerce, presumably because control of their market is part of an important national policy. To Scalia, locking up weed smoking hippies is just too damn important to let federalism doctrine get in the way.

Despite being the other Lopez defector, Kennedy's vote goes unexplained. I think it's pretty clear, though, that Kennedy hates dopers. It should also be said that Kennedy's concurrence in Lopez struck a note of moderation that is becoming typical of AK and is starting to look more and more like a statement that his vote in today's case (whatever that happens to be) does not commit him to any position in any future cases. If Kennedy had written an opinion in Raich, it probably would have read something like this:
Wow, interpreting the Commerce Clause is tricky. I know that there must be limits on Congress' powers flowing from the regulation of interstate commerce, but I'll be darned if I know how to figure out what they are. I just know that allowing wild-eyed druggie freaks to wander the streets shooting old people for their social security checks to support their nasty habits, under a doctor's care, doesn't count.

I join the Court's judgment and opinion that the Controlled Substances Act is constitutional as applied to the appellants. I write separately to make clear that any inference from this opinion and my support of it that I will lend my vote again to the derogation of sovereign state authority or to the sustaining of congressional power in the face of a federalist challenge will really depend on what the case is about.

In my earlier post (and another) I mentioned that certain judges on the 9th Circuit seem to relish opportunities to set Rehnquist Court policies favored by conservatives onto liberal outcomes and watch the justices squirm. Barnett, lead counsel for the losing side in Raich, says the same thing in the National Review.