Sensual aftereffects of rain.

There is respite from all the rain, and now the front garden is teeming with insects that I'm afraid are baby mosquitoes. If anybody needs fresh chives, I've got them. I don't intentionally grow edible things in my yard. The chives have just lived on from the days when I did try to grow food:



But what are these? They look awfully lewd!


I'm not about to eat the mushrooms that are lolling about in my yard. But are they morels?



UPDATE: Yikes! Diva competition!

ANOTHER UPDATE: Tonya posts a relevant literary passages and relays dinner hilarity in the midst of which I said, "I thought my yard should be wearing pants."

WAC Life.

For Memorial Day, here are some scans from my mother's "WAC Life/War Department Pamphlet," dated May 1945.

The cover:



Chapter 1 (Text: "So you're in the Army! You've had your fears and doubts, your cheers and kidding, your tears and farewells. Now, as the boys say, 'This is it!' You're somewhat of a different person already. You're not 'that sweet little Smith girl from Sycamore Street' nor 'that awfully capable Mrs. Smith' any more. Now you're Mary Smith, enlisted woman ..." )



Chapter 2 (Text: "Your job as a Wac, in its broadest definition, is to back up the fighting man. Your place is to render a service to him, not to fight at his side. He depends upon the service which you provide. The fact that your function is service rather than combat does not put you in any secondary or subordinate position. Your activities contribute directly to the winning of the war. Activities such as yours could not alone win the war; but alone they could lose it if they were left undone or were done badly.")



Here's some advice from Chapter 7:

As a people, we're earnest about this war. Our enemies have learned that we're deadly earnest. So are our Allies. We don't wail when things go badly, nor blow off steam at every victory. The fight goes on, come good news or bad.

The answer is

less round. Jeremy seems to be obsessing about his head and his fingernails after last night's dinner at which Tonya and I finally met the blogger from the other side of Bascom Hill who inspired us to pursue the special UW style of blogging that he pioneered. (What, you don't see the similarity?) Nina, who got the whole Jeremy-inspired blogging phenomenon started was also there. Ever perceptive of the smallest details, Jeremy has noticed that his acolytes can be kept track of alphabetically, as our last initials are ABC. So we need a D to continue the trend. (Hmmm ... there are three D lawprofs, but the prospects at least for now for a D are slim indeed.) Among the four of us, two bottles of wine were consumed along with many fried calamari and assorted slabs of beef and fish. Topics discussed: Blogging! And some other things (religion, dyeing one's hair, divorce....).



UPDATE: My sister divas have weighed in here and here.

Misreadings.

Tonya has some thoughts on blog comments generally and specifically on my experience with them. She notes that the main problem she's had with comments has been readers misreading her (including not getting the humor). That reminds me of something I had wanted to say about the comments. It is actually something that bothers me as much as the rudeness and the use of personal attacks instead of substantive arguments. It is how badly people read!



This is a matter I notice as a law professor too. Being a lawprof offers many occasions for seeing how poorly people read. Even in a class of well-qualified students (something I feel sure of based on my Admissions Committee work), where the students have a strong motivation to read the cases carefully in preparation for class, I am continually surprised by how little of what is written is understood. Even before going more deeply into the context of the cases and the motivations of the decisionmakers, students find it hard simply to restate the reasoning laid down in the text. Even when sentences are read out loud in class, many students cannot then paraphrase what the text means. On exams, I beg the students to answer the question asked. I write several times in the text of the exam: "Remember, you can only receive credit for answering the question asked." Yet many students seem to read the question and derive only a general idea of the area addressed and launch into a flow of verbiage that is in no way aimed at the precise question.



The experience with comments on this blog has reinforced my belief that people are not reading with a clear head. I don't think I'm encountering unintelligent people (especially in the case of the students). I think people read with their emotions: they know what they want to see or what they are afraid someone might be saying, and their emotions take over the processing of the words they are looking at. Emotion is a necessary component of human thought, and we could not do without it, but part of education must be controlling the freeform flow of emotion long enough to see the words on the page. I realize every word means what it means because it is absorbed into an individual person's subjective mind, but people need to discipline themselves a bit to fend off the misreadings and misunderstanding that constantly pull us away from the mind of the writer we read to encounter.



For as long as I can remember, I have felt frustrated by how slowly I read compared to other people. I have though known a few other people, people I respect very much, who share the same frustration. Yet I also know the feeling of just glancing at an article and believing I know what it says. I know we can't spend our lives ponderously laboring over other people's sentences. But we need to be aware of when we are really reading without risk of misunderstanding and when we are being reckless. Certainly, there are times when we need to read accurately, such as when reading an exam question or before attacking something someone has written. Learning to read and reading well are a constant struggle. The author's ideas don't just pop into your head when you look at the words. A large part of what appears in your head is your own thinking, and of course, the main reason to read is to develop your own mind. You want to cause thoughts of your own. One reason for reading slowly is to stop and think (or blog about) your own thoughts. But you're misreading if you can't tell the difference between your own thoughts and the writer's.



UPDATE: Chad Oldfather of Oklahoma City University School of Law emails:

Even though I never got around to leaving a comment (I started to one time, and somehow via the registration process ended up instead with a blog of my own that I’ll probably never use), I’m sad to see your comment function go. ...



I couldn’t agree more with your Misreading post.  I’m also continually struck by the number of times I encounter suggestions that what appear to be epic scholarly debates might have at least something to do with mutual misreading.  One example is Posner-Dworkin.  I’ve seen both of them accused of failing to understand what the other has written.  I see this sort of thing all the time.  Then it makes me wonder, like you: Is this how it is that everybody else seems to be able to read so fast?  And then: Is this why so much scholarly debate often appears less like debate and more like people talking past one another?

The truth about bra sales and breast size.

Instapundit links to Living in Europe about how big breasts are getting in Denmark. The news comes from a lingerie company: ""We can clearly see a development. Where the standard size earlier was 75B, these days we sell at least as many C- and D-cups. It's my impression that young women today generally have much larger breasts. Many are slim and even use up to an E- or F-cup."



Well, good luck to big breast fans, but, quite aside from the fact that the "impression" is coming from a company that is seeking (and getting) publicty, you can't use the brassiere sales statistics as the measure of the size of breasts among women generally. The larger your breasts are the more likely you are to have to wear a bra every time you leave the house. The smaller they are the more optional it is: it's a matter of social convention and fashion. If social convention or fashion changes and there are fewer times when you feel you need to wear a bra just for the sake of wearing a bra, the ratio of large size bra sales to small size bra sales will increase. The large breasted woman needs a substantial collection of bras. A smaller breasted woman might go years without buying a new bra. Maybe there is a trend among small breasted women to resort to a bra only for the occasional somber occasion or sheer blouse or there is a trend toward regarding fewer occasions as somber or away from caring that a top is sheer or clingy enough to make it visible that you aren't wearing a bra.

A weary Kerryism.

The Washington Post interviewed John Kerry:

During the interview, he eschewed the soaring rhetoric on freedom and democracy that are commonplace in Bush's speeches and news conferences. At one point, he stumbled over the words when he tried to emphasize his interest in promoting American values: "The idea of America is, I think proudly and chauvinistically, the best idea that we've developed in this world."

I don't think "soaring" is quite the right word for anything Bush might say in an interview. Even "rhetoric" seems to be a stretch if you're talking about Bush speaking in his own words, as opposed to reading a speech. Bush has dealt with his lack of a way with words by just speaking very simply (and rarely). Kerry's problem with words leads him into wordy, pretentious-sounding rambles.



Kerry's use of the word "chauvinistically" is a mind-numblingly poor word choice. It reminds me of the time Ralph Nader said "Don't burlesque me." Except that Nader's use of "burlesque" is dictionary-perfect, just a dictionary definition not ordinarily heard outside of an English Literature classroom. Kerry's use of "chauvinistically" isn't quite right from a dictionary standpoint. It should mean: in a manner characterized by "[m]ilitant devotion to and glorification of one's country; fanatical patriotism." "Chauvinism" is a fancy word that--outside of idiomatic feminist usage--should be avoided unless it has a precision of meaning that makes it worth the risk of appearing hoity-toity. The precision of meaning that "chauvinistically" has that distinguishes it from the normal word--"patriotically"--is not anything Kerry even wanted to say, let alone had a special reason for risking appearing hoity-toity. And Kerry has a huge interest in avoiding appearing hoity-toity.



Now, let's look at the sentence as a whole: "The idea of America is, I think proudly and chauvinistically, the best idea that we've developed in this world." It's so boringly verbose! He could have said, "America is the best country in the world." But he had to relocate America into the realm of ideas for some reason: "The idea of America is the best idea in the world." What's with the intellectualization? Does he mean the the ideas in American law and government are the best ideas? Extra words should add extra meaning or precision. (The sentence does appear out of context, as the Washington Post editorializes that he was stumbling over words.) So at the center of his sentence is the standard incantation "America is the best country in the world," or perhaps "American ideas are the best ideas in the world," but he makes it "The idea of America is the best idea we've developed in the world." As if the idea that an idea has been "developed" adds some value.



Then he has that clunker clause breaking up the sentence: "I think proudly and chauvinistically." Why stop in the middle and say that he thinks what he's saying (I'm John Kerry and I approve this message)? Why add the adverbs at all (quite aside from the mistaken use of "chauvinistically")? It seems as though he caught himself expressing pride and patriotism and he felt it necessary to remark on his own attitude, as if from a distance. Here I am, having to be the candidate, saying the candidate things, so I have to say I believe in America again, because that's what's required. That's what I would think if I were in that position. I'd feel distanced and alienated: oh, no, here I am, having to say that again, feeling like it's a load of crap, even though I actually do believe that the ideas in American law and government are the best ideas. Maybe there's some reluctance and weariness about going through all the motions we require a person to make before he can be President. (Most of us would have gotten much wearier, much earlier in the game.) Maybe the slip of using "chauvinistically" did add precision to his expression--though not a precision he would want to appear in his statement. Maybe he genuinely thinks the endless professions of patriotism that are required of a candidate are a lot of baloney. I don't hold that against him--and I certainly don't think finding this kind of thing tedious means he's not patriotic. But I don't think talking like that is going to help his cause. And if he really is getting weary of having to say such things, why not make it as brief as possible? Because people are getting weary of these long sentences.



And by the way, the Washington Post could use some more copyediting: "the soaring rhetoric on freedom and democracy that are commonplace" should be "the soaring rhetoric on freedom and democracy that is commonplace."

Octopus in the rain.

Today is another one of the many days when traffic is redirected in Madison so a race of some sort can take place on the city streets. Sometimes it's a competitive race, like the bike race a week or so ago that I photographed or a triathlon, and sometimes it's a fundraiser. Judging from the speed of the runners I saw as I gave my son a ride to his summer job this morning, today's race is a fundraiser. And it is pouring rain. It's rained almost continually for a month, but today's rain is the hardest yet. But the dedicated runners were out there plugging away. A lone spectator stood on the street corner under an umbrella, and the workers at the Octopus car wash--who don't get much business in the pouring rain--were standing out under the roof overhang, perhaps sympathizing a bit but enjoying the break from work that nature had bestowed on them.



I wanted to link to a picture of the Octopus and could only find this huge amateur photograph. I'd love to take a picture of it myself, but not in this rain. It's one of those odd roadside America sights, a very well-executed giant octopus, smiling and holding car wash implements in every tentacle.



As for me, I got soaking wet getting to my car which was parked too close to the overgrown hedge (a hedge that I do plan to clip some day when it dries out). Now, having overslept, I'm finally getting to the NYT, which stayed dry in its blue plastic bag. It's a good day to read the Times, do the acrostic, grade some exams, watch a movie, and eat dinner in a restaurant. There will be no inrush of comments like yesterday to distract me. I'm sad about killing the comments, but they had to go.



Last night, I looked at some of the most popular blogs and noted some of the very best ones that don't have comments: Instapundit, Talking Points Memo (which I added to the blogroll ... oh, you're up to your little posing-as-a-moderate games), Andrew Sullivan (I hope he's okay--he said he'd be back and he's been gone since Thursday), The Volokh Conspiracy ("'Bobo' appears to [be] getting incorporated into French"--the French have discovered Fantasia Barrino? I wonder if David Brooks is irked at Fantasia for usurping his coinage?). Then you have the most popular blogs that do accept comments, Eschaton and Daily Kos, which are hardcore partisan political blogs of the sort that go well with the kind of comments they draw. There's no sense that the comments there are changing the overall feeling of the blog. Kos is so political that when he tried to talk about music yesterday, he wrote: "my favorite band -- Bad Religion -- has a new DC coming out next Tuesday." It's an endless anti-Bush rally over there, and maybe a lot of people are developing their commenter style in that hothouse environment, and when they go and post in a place that is not an ongoing political rally, they just don't know how to act and don't even know how awful they sound.



You would think the left would be interested in speaking to people who are in the middle, whom they need for their side to win. Yet they were taking the attitude that it's not possible to be in the middle. I imagine their hatred of Bush is so strong that they may seriously think anyone who is even considering voting for him is a hardcore right-winger! They seem to get actively mad at you if you aren't willing to go on record denouncing the war and so forth. One of the worst qualities of left-wingers I have known is their self-flattering belief that they are the good people and that those who don't agree must be bad people. Ironically, that is the same you're-either-with-us-or-against-us attitude that I often hear them accuse Bush of taking.

About that comments function....

I've had a week or so of experience with the new Blogger comments function, so let me pause and assess and explain. At first, there were too many zeroes, which looked so lonely. Then, commenters started showing up--during a week when I was getting a lot more traffic on the website generally. I was impressed by how smart and well-thought-out nearly all the comments were, which was great, especially since I allowed anonymous comments, with no registration required. But ... the last couple days I've been getting a fair number of comments that were getting abusive and repetitious, and I was not enjoying having to monitor these. Since nearly every commenter was Anonymous, I couldn't tell if it was just one overenthusiastic poster or several people, but I got tired--in the last 24 hours--of getting dragged over to the comments pages just to keep things from looking ugly. I'm certainly not blogging so I can spend my time writing out thoughtful answers to an anonymous person who is being abusive.



Here's a list of things people who were not being reasonable were saying about me:

1. I claim to be a moderate, but I'm only posing as a moderate for some nefarious reason.



2. I think I'm so great because I'm a moderate, and I keep showing off by doing this whole "I'm a reasonable person" routine--which is obviously a manipulative trick.



3. I am outrageously right wing, and this is especially bad because my parents served in the military during or just after WWII.



4. I'm showing off by writing about legal matters, and I think I'm so great because I know more than other people about such things, and I'm taking unfair advantage by resorting to the use of this knowledge.



5. It's bad of me to indulge in humor if I'm writing anything that tinges on the Iraq war.



6. I shouldn't express outrage about art unless I first express outrage about things that are more outrageous--chiefly the war.



7. I shouldn't be writing about whatever I'm writing about because I should be expressing outrage about the war.



8. I don't know anything about country music because I heard Shania Twain and thought it was Melissa Etheridge.

I can't be running over to the comments page every few minutes to respond to this sort of thing. I'm going to keep the comments function, because most people are really great about comments. For all I know, there was just one person who decided to sandbag my blog. To him I say: get your own blog. (And to the charming person who asked if my (now deceased) parents got married two weeks after they met because my mother got pregnant, I say: do you know anything about the menstrual cycle?) To the rest of you, keep commenting, I do appreciate it, but now you've got to register, because I want to be able to bar posters that I decide are wasting my time and annoying me.

"Oh, so you think I'm annoying you, you right winger? You think it's all about you, don't you? Oh, boo hoo hoo, you're annoyed. Our soldiers in Iraq are being killed every day! Why don't you write about that!"

UPDATE: I thought I could delete individual commenters if I used the registered commenters setting. If I can figure out how to do it, I'll put the comments back. The comments already written still exist, and I can redisplay them. Sorry for the many excellent commenters I've undisplayed. If you comment on my posts in your blog and link to me, I will try to respond (to reasonable things), but I can't handle comments here unless I have a way to bar the people who aren't willing to live up to my standards. It's not a matter of excluding viewpoints--I love good debate--it's entirely about the form of expression and the personal remarks, and, especially, the intolerable remarks that were made about my dead mother.

"You have to understand. There was a war."

The AP reports:

Bells tolled from the National Cathedral and swing music from the 1940s rang out at the Mall as veterans of World War II assembled by the tens of thousands Saturday for the dedication of a memorial to their great struggle.

A service of celebration and thanksgiving at the cathedral opened a day of remembrance for a passing generation. Old soldiers, many gripping canes or in wheelchairs, welcomed the tribute to their service while lamenting that the memorial has come too late for so many of their comrades.

"I wish they would have done it much sooner because there's a lot of people from that generation who are gone," said Don LaFond, 81, a Marine Corps veteran from Marina Del Ray, Calif., taking his seat at the Mall on a cool spring morning.

Only about one in four veterans of the war is still alive.

My mother was a WWII veteran. She joined the Women's Army Corps for reasons she would never put in personal terms. I used to ask her, "Why did you join the Army?" I wanted to hear the details of a teenager who cared for her infant sister, named Hope, who was doomed by spina bifida, incapacitating the poor baby's mother with grief, and who went to college, at the University of Michigan, when she was only 16. I wanted to hear about how she had a great passion to leave Ann Arbor, where she had lived all her life, to have new adventures. But her answer was always devoid of a personal story. It was always: "You have to understand how it was for everyone at the time. There was a war."

My father was drafted into the Army after the end date of the war, so he was not, technically, a veteran. They are both dead now and so are among the many of their generation who did not live to see the memorial. They met in the Army. My father had one of those Army office jobs, and so did my mother, who was transferred from working on battle fatigue cases to an office job when it was learned that she could type. My father had made some coffee in his office, and my mother went into the office attracted by the smell of coffee. They were married two weeks later. Personally, I owe my own life to the Army and the smell of coffee, but to be more like my mother, I shouldn't tell it as a personal story: There was a war. People did what had to be done.

The high cost of hot chocolate ... and the joys and anxieties of speaking without notes.

Jeremy explains "why a hot chocolate at starbucks is $3, while a hot chocolate at borders is $133," with suitable photographic illustration. And scroll down for the harrowing tale of how he reconfirmed his belief in the proposition: "go with only minimal or no notes for any talk of 30 minutes or less." Hmm ... I have a 15 minute talk I need to do next Friday .... Note: he doesn't say go with minimal preparation, just minimal notes.



Anyone worth listening to speak at all is much better to listen to when they are speaking straight from their head not their notes. (Which is why closed book exams are better, by the way.) You just have to get over the anxiety of worrying that the pressure of the occasion will cut off your access to the place in your head where the relevant information resides. Too bad politicians have to read their speeches: they have to worry that one misstatement or misguided locution will cause them trouble. That's why my plan for the campaign is: submit it in writing. If it's already in writing, let me read it. I can do that in less than half the time it will take you to deliver it as a speech.



That reminds me of an anecdote about F.A. Hayek that I just heard this morning on C-Span--yes, I watch C-Span while getting ready in the morning!--told by the author Gregory Nash.After adding the word "serfdom" to my Google search when the whole first page came up Salma Hayek, I found the anecdote told by another author (here). The C-Span version of the anecdote included the additional detail that Hayek had never given a public speech before and was told he would need to do so only the night before, but here's the key part:

After The Road to Serfdom (1944) became a bestseller, the University of Chicago Press rushed the author F.A. Hayek into the lecture circuit, a new experience for him.  He told an interviewer,  “When I was picked up at my hotel [in New York]...I asked, 'What sort of audience do you expect?'  They said, 'The hall holds 3,000 but there's an overflow meeting.'  Dear God, I hadn't an idea what I was going to say.  'How have you announced it?'  'Oh, we have called it 'The Rule of Law in International Affairs.'  My God, I had never thought about that problem in my life…I asked the chairman if three-quarters of an hour would be enough.  'Oh, no, it must be exactly an hour...you are on the radio." 

It turns out, the talk was a big success. Was that because Hayek was so brilliant he was able to do well even with shocking disadvantages, or did all of these nightmarish problems make him better? He was no doubt shocked into a very energetic state and he was forced to be spontaneous and tap straight into his inner resources. But who with fair warning could plan to do things this way? We hear the anecdote about the time it worked, but many speakers have fallen disastrously when unprepared. Still, many overprepared speakers are horrible. Yet they are never horribly exposed and humiliated as they experience their failure. Notice that no one ever has a real nightmare about standing at a lectern reading a prepared speech that is very dull. (Yes, I know that might be because it is impossible to read in a dream).

Kerry's mysterious mix of issues and the muted left.

Adam Nagourney, in today's NYT, examines the mystery of "Why the Democrats' Left Wing Is Muted" about Kerry, given the positions he's been taking lately about the war. Hmm ... I see I just wrote "positions," and I notice that the article running right next to Nagourney's (in the paper Times) is "Kerry Redoubles His Attack Over the War" by Robin Toner. While Nagourney concentrates on Kerry's failure to appease antiwar Democrats and explains their seemingly mysterious support of him in terms of intense hostility to Bush, Toner writes of the Kerry "campaign's current mix of patriotism, support for the troops in Iraq and scalding criticism of the policies that put them there":

On the second day of a two-week drive to establish his credentials on national security, Mr. Kerry also told an audience of veterans that Mr. Bush had shortchanged their health and benefit programs while carefully protecting tax cuts for the wealthy....



Mr. Kerry said it was impossible to predict what the situation in Iraq would be when - if elected - he took office. But he said neither the United States nor its allies could afford a failure in Iraq, and repeated his call for Mr. Bush to engage more countries in the transition.



"I promise you this," he said, "I am going to get the troops home as fast as possible, with honor and the job accomplished in the way it needs to be, and we will bring other people into the process."

One can easily portray Kerry as a man who takes so many different positions in such a confounding mix that no one--no one with any real potential to actually vote for him--ever gets too upset. Yet, obviously, Kerry has a careful balancing act to perform, and he seems sensible about trying to hold on to the middle. For the antiwar side, he seems to be offering only a feeling that he's going to wind things down more quickly and effectively than Bush, but Bush is trying to reach the same goals Kerry is stating. (This is why I'm not deciding between the two candidates until October: I'll see what Bush has actually done between now and then.) Kerry is urging--Toner reports--that we get away from "partisan politics" and "just think common sense about our country, about what it should be doing." I don't argue with that. It's hard for him to get specific about what he would do, since he wouldn't be starting to do anything until over eight months from now. How can he use common sense to figure out what should be done that far in the future when things are changing every day so far out of his control? That's the downside of not being an ideologue.



Ralph Nader is puzzled that the left wing of the Democrats isn't more active pressuring Kerry to move in their direction, as Nagourney reports:

"There are antiwar Democrats who will fume and still vote for Kerry," Mr. Nader said, adding: "I don't think Democrats should give their candidate a pass on the war. If Democrats are so freaked out by Bush that they are, like, 'Do anything you want, John, we'll support you,' well, as I told him in our meeting, he's not going to be left with a mandate." ...



Mr. Nader said he could not understand why unions, antiwar groups and other traditional Democratic constituencies were signing on with Mr. Kerry without insisting they get something in return. And he criticized Mr. Kerry for not making real concessions to the antiwar crowd.



"He's listening to Shrum," said Mr. Nader, referring to Mr. Kerry's senior political adviser, Bob Shrum. "He's listening to all the cautious advisers. They are saying don't cater to these antiwar people, they have nowhere to go. They are going to vote for you. You know the old game."

So Nader really wants something in return for supporting Kerry, but he isn't finding that he has a constituency to deliver over in the deal. He's becoming irrelevant. There seems to be a lot of common sense going around these days.

Old bumper sticker fulfilled, but Al Gore isn't.

Surely, you've seen this famous lefty bumper sticker:



Luckily, there was a high level of competence on the part of our soldiers, even though they were denied the tools in the numbers they needed for their mission. But what a disgrace that their families had to hold bake sales to buy discarded Kevlar vests, so the soldiers can stuff them into the floorboards and sides of the Humvees that they have to ride around in without any armor. Bake sales for body armor! What kind of policy is that?

Note: Try finding the transcript of the Gore speech on the web! It's not on the Moveon.org website anymore. The Washington Post article about the speech shows what is supposed to be a link to the transcript of the speech, but the link just takes you to an empty Moveon.org page. I transcribed the quote above from my TiVoed C-Span coverage.The Moveon.org home page has a link to a transcript of a Gore speech, but if you click on it, it turns out to be a speech from February 5, 2004 (which I printed and read, assuming it was this week's speech--no speech date appears on the home page). There's also a link to a January speech by Gore on the home page. Moveon.org sponsored the Wednesday's speech, and in the words of the Washington Post, it was "the highest-profile appearance by Gore since he endorsed former Vermont governor Howard Dean for the Democratic presidential nomination." I tried my best to find a link to the transcript before taking the trouble to transcribe it myself. I realize links go dead, and unintentional snafus occur. Send me the link if you have it. And, correct me if I'm wrong, but it seems to have been deliberately eradicated. I feel compelled to conclude that it's been roundly judged a complete embarrassment.

UPDATE: Now that I've watched the entire speech, let me say that I think much of the coverage of it has been unfair. Drudge and others acted as if he freaked out. I haven't gone over the speech and checked the accuracy of all of the statements, but it is simply untrue that he appeared crazy in some way. There were perhaps two points when he resorted to yelling, but he was shouting over a loud ovation in the auditorium. His voice, as heard over the television, is not ideally modulated, but it was probably adapted to the acoustics in the room as he heard his own voice. He gets a little Jimmy Stewart-y in places. He wipes his brow a few times with a big towel, which looked funny, but clearly the room was too hot, and he was sweating. Most of what he said sounded rational to me: it is important to take the Abu Ghraib abuses very seriously. There's some political posturing in calling for various resignations, but there was nothing irrational about that. People who found the most ridiculous freeze frame or replayed an isolated clip treated him very unfairly. I will say that the NYU crowd was not as serious as the subject matter required. They did not just applaud, they laughed, sometimes inappropriately. The audience seemed so excited about laughing at Bush, that it lost touch with the subject matter being discussed. I think one could see that Gore did not approve of this response. Maybe my perceptions are skewed: I thought he did well in the first debate with Bush in 2000 and was surprised at the way he was ridiculed in the press. Maybe I have I higher tolerance for Gore attitudes than most people, but I really can't see why he's being shredded for this week's speech.

FURTHER UPDATE: A reader figured out a way to get to the transcript:

Take a gander at this:

http://www.moveon.org/pac/gore-rumsfeld.html

I found this by looking for "rumsfeld" in the URL of a MoveOn webpage (it's the last result when you do that search)...

That's a strange way to find it, so it doesn't dispell the impression that they are trying to get rid of it.

ADDED SATURDAY MORNING: The difference between the URL the reader found and the one in the Washington Post link is that that latter has "-transcript" after "rumsfeld." Also, and more importantly, the Moveon.org home page now has the Wednesday speech featured at the top of its home page with a good link. But none of that was there last night when I wrote this post. It can't be that they are just slow putting up material on their website, because the Post had a link that went dead. You'd think if the Post website was linking you, you wouldn't let the URL go dead, and then later use a different URL. Especially a group like Moveon.org which specializes in being a website and sponsored this important speech. I see that they are now trying to sell a DVD of the speech. And the new URL has a lot of Quicktime clips from parts of the speech. Maybe last night when I couldn't find the transcript, they were shifting over to this really elaborate new page. Clearly, they aren't trying to scuttle the material, which I suspected last night. The presentation of key clips is a good way to counter the unfair clipping that Gore's critics were doing. I approve!

The miniature mogul of blogging.

So I read How Can I Sex Up This Blog Business? (which I nerdily picked up on via How Appealing). Who knew Wonkette and Gawker and Gizmodo and Defamer were part of a miniature media empire run by a man with a very large head who lives in a SoHo loft but has to move his laptop around in it to try to pick up a WiFi signal from outside his building? Did you know that a blog like Gawker or Wonkette draws $5,000 to $10,000 a month in blog ads and the writer gets something like $1500 or $2000 of that to submit to the direction of this small-time mogul--whose name is Nick Denton--who pushes them toward sex and sadism and (oh, what did we do before we had a word for it?) snarkiness. Denton isn't exactly getting fabulously rich pocketing the difference, but he does get to keep the brand name if the writer moves on (like to a better paying job). So Wonkette isn't Wonkette?

Lust for Lunch.

We had some lunch today at Crave, which seems to be a worthy new restaurant, just off State Street on Gorham (easy to miss if you're walking up State Street, but just a few steps away):



Walking back to the Law School, I saw a man preaching from the concrete pulpit that overlooks Library Mall:



He was holding up two signs and imploring people to open their hearts to religion.



A man with a long white ponytail, sitting on a metal bench just in front of the pulpit, was trying to eat his box lunch in peace:



Suddenly, the white ponytail man starts shouting back at the preacher man: "Why don't you just shut the f*ck up? What makes you think you have anything to say to me?" The preacher yells back, getting quite passionate, saying he was trying to teach love. The white ponytail man taunts the preacher, he shakes a plastic fork at him and dares him to come down from the pulpit and confront him face to face. The preacher man gets angry and throws down his signs and turns but then stops himself. The white ponytail man gets more heated up, saying, "You are so f*cking arrogant! You have nothing to offer me!" Sounding uncannily like Kirk Douglas playing Vincent Van Gogh in Lust for Life, the preacher seethes, "I want to help humanity!"

"What scenes would one like to have filmed?"

This is a great question that Robert Hughes asked Vladimir Nabokov in 1965. You can read his answer in one of my favorite books, Strong Opinions. (If you want to get an idea of what Nabokov wrote about in Strong Opinions, you can consult this elaborate index, which someone was nice enough to put together.) Feel free to use the comments section to answer the great question, which assumes someone could have been present at any time and place in history with the equipment to make a film. Here's Nabokov's great answer to the great question:

Shakespeare in the part of the King's Ghost.



The beheading of Louis the Sixteenth, the drums drowning his speech on the scaffold.



Herman Melville at breakfast, feeding a sardine to his cat.



Poe's wedding. Lewis Carroll's picnics.



The Russians leaving Alaska, delighted with the deal. Shot of a seal applauding.

Reliving the chad experience ... and CNN preening.

Last night, we watched CNN Election 2000: 36 Days That Gripped the Nation, which came in the mail yesterday. I explained my reasons for wanting to see it here. It was okay, it provoked some laughs, and it got us to pause at one point and get into a whole big debate about the best way to count the ballots all over again. (I said that Bush's best argument was that the punchcards were designed to be read by machines, so the best stopping point was the machine recount, because at least the machine had no opinion about who should win, and if human beings started looking at the cards, which were never designed for human eyes, human subjectivity would necessarily creep in. And that reignited the old argument.) But I was disappointed by the way CNN constructed its little documentary. It was TV hackwork. Having just last week seen a beautifully constructed political documentary--The Fog of War--I cringed at the lameness of CNN's little paste job. At least they could have maximized the footage of the historic events. There was a decent amount of footage of county officials squinting at punchcards, people holding signs with saying like "Sore/Loserman" and chanting "Get out of Cheney's house," and reporters trying to report on a Supreme Court opinion as they were glancing at it for the first time. But far, far too much of the documentary consisted of various CNN reporters, well-dressed and made-up and overlit against a black background, reminiscing about how they felt when the events were occurring. It was like those "I Love the 80s" shows on VH-1 were they plunk a celebrity in front of the camera to reminisce about something they'd just shown a clip of (e.g., show historic footage of Rubik's cube, then have, say, Juliette Lewis prate about how she had a Rubik's cube when she was ten years old and found it very hard to do). It's always so glaring that it's filler, as the celebs talk especially slowly, with pauses, and usually seem to be making half of it up or doing a retake. The real message is, we don't think you will pay attention to the footage (or we can't edit it into a good enough form to make it worth paying attention to), so we' ll just mesmerize you with a celebrity. Now, the intense focus on a single talking human being can, in fact, be great. The Fog of War is the example of how to do that well. But there is no way on earth that the diverse ramblings of Judy Woodruff about waiting out the election results can compare to the brilliantly edited speech of a brilliant and complex man--Robert S. McNamara--who lived through the most interesting events of a century!

The blatantly partisan blogosphere.

This blog is a mix of things. Like many, perhaps most, blogs, the mix is based on what catches my attention and inspires me. I enjoy discovering what the mix turns out to be. Some of what catches my eye is political. A political observation, especially if it catches a presidential candidate making a mistake, draws a lot of traffic to the blog. I like to think some of these people will stay around for the other components of the mix, but I realize it will only be a small percentage of the people who are drawn by the political gotcha that got the link. But I was quite struck by comments on this post yesterday, taking the position one ought to avoid politics altogether:

The blogosphere is blatantly partisan. ... I think it's quite difficult if not impossible to find any well-reasoned political debate on the internet .... It's hard to appear to be an equal-opportunity offender or critic much less actually be one. I haven't seen any large-scale blogger who really effectively does either.



I know, politics is important, and potentially interesting, but when I see stuff like this I am reminded both of why the Supreme Court doesn't hear political questions and what a very wise famous computer named JOSHUA once said:



"A strange game. The only winning move is not to play. How about a nice game of chess?"

I think that's well put, but terrible if true. We should cede the political speech to the hardcore partisans? A moderate observer of political things ought to opt out of political speech because of the danger of being used by the hardcore partisans that somehow rule the blogosphere? That's far too big a price to pay and far too pessimistic. It's far too perfectionistic too: of course, no one can become completely balanced in the center and dish out criticism in precisely balanced portions. And what does it mean to be "really effective" as a blogger? It's always just one more day of assorted posts, one more sampling of the mind of this particular blogger, out there for the world to dip into. If I were more of a hardcore partisan, I suppose I would worry that I might somehow, in my meanderings, hurt Kerry/Bush, and then I will have lost the game. The demonstration of my nonhardcore, nonpartisanship, is I don't care enough about that to worry the way this commenter thinks I will.

Whatever happened to "minimizing the template"?

I just noticed that the photographs overlapped with the sidebar. Why I spent as much time on changing the template as I did last night without noticing the problem--that's something I can't explain, other than that I just forgot the problem from the last time I tried to change the template and the photos happened to be low enough on the front page not to be next to any sidebar content and the lack of a sidebar dividing line left the side space clear.



Sour grapes version: the type on Minima was too hard to read and was hurting my eyes, the white background made the dark ad banner much more obvious, and that template had a problem with line spacing that was undermining its prettiness. Now, back to substance!



UPDATE: Blogger has some sort of bug that is causing the template to jump back to Minima when I edit an old post. What could cause that? Let's see if it happens this time ....



FURTHER UPDATE: Ah, good. I have no idea why the problem cured itself and I don't trust it not to happen again. It's definitely a good idea to keep a copy of your template in a separate document, so you can copy it back into the window if it decides to revert to an earlier incarnation.

Minimizing the template.

I've switched to one of the new Blogger templates. This is called Minima. I hope it's subdued enough for you. It's aggressively mellow. Why it seemed better than the old template ("Tekka"):



1. Tekka had an inexplicable interest in dotted lines and an irritating sans serif font. It was nicely minimal, but Minima is more minimal.



2. Minima, being one of the new Blogger templates, has that nice "previous posts" list in the sidebar.



3. Minima isolates and colorizes the titles in an appealing way. The text is not black but gray in a way that is pretty. (It does have the downside of making me feel that my vision is failing, and since my vision isn't so great anyway, that's a bit of a pain. But it's not that far from black, so I'm going to see how that wears on me.)[UPDATE: I adjusted some colors, and made the text black.)



One thing I've got to deal with is the way the blog title at the top is in a box with the blog description, which calls so much attention to the blog description that I had to delete what I had and am not trying to figure out what to put there. I'm going to have a quote, I think, but I haven't decided on what yet. I was going to try to get something from "My Dinner With Andre," but what I had was too long and rambling. ("Do you want to know my actual response to all this? I mean, do you want to hear my actual response? ... I enjoy reading about ... what people said ... and what people said about what people said ... And I just don't know how anybody could enjoy anything more ... I'm just so thrilled when I get up and I see that coffee there just the way I wanted it. ... Isn't it pleasant just to get up in the morning ... and the Times is delivered?" I like that for a lot of reasons and think it says something about blogging, but it just didn't look right in the box.)



One other problem is that the posts begin with the lines separated by a half space, but if you do a blockquote, not only is the blockquote single-spaced but the regular text after the blockquote is single-spaced. If anyone knows how to fix that, please let me know.

Amazon package of the day.

I really don't want to say what percentage of my days include the delivery of a package from Amazon. I just feel like saying what just came in the mail today.



1. CNN Election 2000: 36 Days That Gripped the Nation. Okay, what's the reasoning there? I just wanted to live the excitement of the last time around, what with the 2004 election getting so much attention. Remember that guy holding the punchcard up and gazing in search of the daylight that a detached corner might admit? Yeah, I wanted to relive that old feeling. It seems so archaic now. It was all so ordinary at the time: James Baker repeatedly saying "the votes have been counted and recounted" and Gore's people with the other mantra ("count all the votes... count all the votes..."). I feel like seeing it all again, made new through nostalgia (and boredom with the current election).



2. Dry: A Memoir, the audiobook, unabridged, read by the wonderful author Augusten Burroughs. Because I love the audiobook of Running With Scissors and want to know what happened to that poor boy and also just want to hear more of the amazing comic voice of Augusten Burroughs--who reads his own story wonderfully well. For the full comic power, get the spoken word version. Running With Scissors didn't quite suit my usual audiobook needs: I like to fall asleep listening to spoken word. But there are quite a few things in that book that you don't want playing while you're asleep or trying to get to sleep. It was nice getting Dry in the mail today. I like the liner note: "Dry is the story of love, loss, and Starbucks as a higher power."



Which reminds me ... I'll be back later.

The Times tsks about blogging.

The NYT is running an article about people who blog obsessively, so I'm going to blog it obsessively.



First, there's an anecdote about a woman who went on a vacation with her husband, and he got up and went in the bathroom, where he stayed for a long time. Turns out, he was blogging! Okay… and? What if he was reading? The guy was nice enough to try not to disturb her. Why is it a problem? Well, because:

For some, [blogging] becomes an obsession. Such bloggers often feel compelled to write several times daily and feel anxious if they don't keep up. As they spend more time hunkered over their computers, they neglect family, friends and jobs. They blog at home, at work and on the road. They blog openly or sometimes, like Mr. Wiggins, quietly so as not to call attention to their habit.



"It seems as if his laptop is glued to his legs 24/7," Ms. Matthews said of her husband.

So, secretive blogging: it's like drinking on the sly. If you're hiding how much you do it, then you must have a problem. Except, if you're blogging, the whole point is to expose all your writing to everyone, so how can you really ever be doing it on the sly? Is this Wiggins-Matthews couple worth our attention? He wants to do something he likes and she wants more attention. Isn't that the old marital story? What's the difference between them and some couple where the husband watches sports too much? Couples will forever be mismatched in their preferences for solo versus joint activities. That's not really getting to the core of anything significant about blogging.



Next up for the Times is the fact that bloggers may not have much of an audience:

A few blogs have thousands of readers, but never have so many people written so much to be read by so few.

Wait a minute: what about all the centuries of letter writers, when many, many people would write pages and pages to be read by only one person?

[I]f a blog is likened to a conversation between a writer and readers, bloggers like Mr. Wiggins are having conversations largely with themselves.

The suggestion is that blogging is masturbatory ... which explains why Wiggins locks himself in the bathroom.

Mr. Wiggins …does not know how many readers he has; he suspects it's not many. But that does not seem to bother him.

Enough with this Wiggins character! We're told he blogs about technology issues, yet he doesn't know how to install a Sitemeter?



The next problem is that a blogger might have too much of an audience:

Perhaps a chronically small audience is a blessing. For it seems that the more popular a blog becomes, the more some bloggers feel the need to post.



Tony Pierce started his blog three years ago while in search of a distraction after breaking up with a girlfriend. "In three years, I don't think I've missed a day," he said. Now Mr. Pierce's blog … averages 1,000 visitors a day.

But too big of an audience doesn’t really seem to be Pierce's problem (assuming he's got a problem):

Mr. Pierce … said blogging began to feel like an addiction when he noticed that he would rather be with his computer than with his girlfriend - for technical reasons.



"She's got an iMac, and I don't like her computer," Mr. Pierce said. When he is at his girlfriend's house, he feels "antsy." "We have little fights because I want to go home and write my thing," he said.

Everything is an "addiction" now. (I'm cutting many of the repetitive statements in the article on the theme of blogging as addiction.) This guy can't get a laptop? Or is he just one of those people who take every opportunity to say they don't like Macs?



Okay, we've got our anecdote guys out of the way. Time to talk to an expert:

Joseph Lorenzo Hall, 26, a graduate student at the School of Information Management and Systems at the University of California at Berkeley who has studied bloggers, said that for some people blogging has supplanted e-mail as a way to procrastinate at work.



People like Mr. Pierce, who devote much of their free time to the care and feeding of their own blogs and posting to other blogs, do so largely because it makes them feel productive even if it is not a paying job.

Like people who cook, garden, and pursue other hobbies?



Finally, a voice of reason is brought in:

Jeff Jarvis, president of Advance.net, a company that builds Web sites for newspapers and magazines, and a blogging enthusiast, defended what he called one's "obligation to the blog."



"The addictive part is not so much extreme narcissism," Mr. Jarvis said. "It's that you're involved in a conversation. You have a connection to people through the blog."…



Mr. Jarvis characterizes the blogging way of life as a routine rather than an obsession. "It's a habit," he said. "What you're really doing is telling people about something that they might find interesting. When that becomes part of your life, when you start thinking in blog, it becomes part of you."

"Thinking in blog"—that's a good phrase.



I've talked about blogging a lot with other bloggers, and it seems that if you enjoy doing it you also feel pulled into the activity and have trouble tearing yourself away. But don't we want to have avocations like that? Isn't that what it's like to love doing something? In fact, I'd rather have an obsession than a "routine" (Jarvis's word). Bloggers are actively reading and engaging with what they read. Writing is a way to think and understand. Blogging lets just you share those thoughts with anyone who decides to show up. … and become fascinated by how many people show up and who links to you and where you rank on various charts and all sorts of other things that the Times would be tsking about if it noticed.



UPDATE: Nina agrees.

So what is the official Columbia Journalism Review position about factchecking quotes?

Zachary Roth at CJR Campaign Desk thinks he's found a way to attack me for "attacking" Kerry:

Ann Althouse thinks she's found another way to use the delaying-the-nomination idea to attack the Massachusetts senator. Kerry told the Boston Globe that "it used to be that the convention, after nomination, traveled to the home or the state of the nominee to inform them they've been nominated ... Harry Truman was in Independence [Mo]." Althouse, citing David McCullough's biography, says Truman was clearly at the 1948 convention, and delivered a speech. But that doesn't necessarily mean the convention didn't then travel to Independence to nominate him, as Kerry said. We eagerly await comment from historians of the presidential nomination process.

Since Roth is an arbiter of fairness, operating under the name of the Columbia Journalism Review and presumably dedicated to journalism ethics, how about some fairness to me?



First, I'm not looking for ways to attack Kerry. On what basis does he insinuate that attacking Kerry is my motive? I include in the very post he links a reference to an earlier post where I criticized Republican William Safire for getting the history of the conventions wrong. As I've said many times, I'm a moderate who has not chosen between the two candidates yet and don't intend to do so until October. I'm an observer of human nature and I found it funny that Kerry pompously chided the Republicans for not knowing history while making a glaring mistake of his own.



Second, so I didn't specify that the speech was an acceptance speech, but the link to the speech text has the words "I accept the nomination" as the third sentence and the pages in the McCullough biography leave no doubt this was an acceptance speech. Roth doesn't bother to check that as he stretches to find a way that it might somehow be true that Truman went to the convention but then left and had to be informed of the nomination later. Truman was already President when he was nominated as his party's candidate, as anyone writing about politics should know. What are the chances a President who is running for a second term would go to the convention without knowing he would be nominated and making an acceptance speech?



It doesn't take much of a historian to look up these prominent facts. It took about 2 minutes on Google for me to get this information. Instead of bizarrely trying to paint me as someone looking for ways to slam Kerry, why doesn't Roth criticize the Boston Globe for printing Kerry's quote without having enough of a sense of history to wonder whether Kerry might be wrong about Truman or checking the basic facts within the quotes?



Back in March, another CJR Campaign Desk writer, Brian Montopoli, responded favorably to a post I had made pointing out a factual error in a Kerry statement and criticizing the mainstream press reports for not noticing questionable facts within a quote and just repeating quotes without factchecking:

We come to this a little late, but, as University of Wisconsin law professor Ann Althouse pointed out over the weekend, Sen. John Kerry was wrong when he claimed during last Thursday's debate that "we have 111 people who have been now released from death row ... because of DNA evidence that showed they didn't commit the crime of which they were convicted."



According to the non-profit Death Penalty Information Center, 113 people have been released from death row since 1973. But in only 13 of those cases did DNA evidence play a significant factor in the prisoner's release.



In the other 100 (or so) cases, says the American Civil Liberties Union, "those exonerated were found innocent because someone came forward to confess committing the crime; key witness testimony was found to be illegitimate; or new evidence was found to support innocence."



The New York Times, Boston Globe, Washington Post, Philadelphia Inquirer, New Republic, CBS News, and countless other outlets all ran stories quoting Kerry without checking the facts to figure it out.



It's difficult for a reporter writing on deadline to fact-check every assertion that comes out of a candidate's mouth, of course. But in a primary season, once a misstatement such as this gets into the echo chamber, it's awfully hard to set the record straight.

So I'd like to ask Roth and Montopoli to get together and figure out the journalism ethics issue here. Do we take factual assertions within candidate's quotes seriously or not? Are we going to be critical of newspapers that repeat the candidate's quotes without factchecking the assertions within them or not? And if a blogger takes on the work that the newspapers shun and points out an incorrect fact within a candidate's quote, should a website devoted to the "critique and analysis of 2004 campaign coverage" show no interest in figuring out what the fact actually is and accuse the blogger of looking for ways to attack the candidate (the Roth approach)? Or should it express appreciation for the work of the blogger who has made up for the deficiency of the mainstream press (the Montopoli approach)?



UPDATE: This recent post of Roth's was pointed out to me, and, in fact, it shows that he does think news media shouldn't be "complicit in allowing the candidates to repeat their spin without criticism" and should "point out ... distortions, immediately and unequivocatingly, using their own reportorial (as opposed to editorial) voice." This is very close to my key point.

"Death with Dignity," "Compassionate Care," and federalism.

The NYT, reporting reporting on yesterday's Oregon v. Ashcroft case (which I discussed at some length here), quotes Dr. Greg Hamilton, of Physicians for Compassionate Care, a group opposed to doctor-assisted suicide:

"It's amazing when a federal court allows any state to nullify federal laws ... Vulnerable people in the state of Oregon are deprived of the protections available to people in 49 other states."

It would be amazing if a federal court recognized a power of a state to "nullify federal laws," but of course that didn't happen. If the federal law, the Controlled Substances Act, had clearly stated its intent to bar doctors from prescribing drugs to enable a person to commit suicide, the court would have recognized that federal law preempts state law. The problem was banning doctor-assisted suicide by virtue of the opinion the Attorney General alone, rather than having a decision thought through by Congress. It's obvious that Congress never went through the exercise of deliberating about physician-assisted suicide, and it's also obvious that the people of Oregon, acting democratically through a ballot measure, did think about this specific subject and reach a decision. The question is whether Attorney General Ashcroft should be permitted to use the Controlled Substances Act, which Congress passed while contemplating other sorts of drug problems, to impose his ideas about physician-assisted suicide over the decision reached by Oregon. Nothing prevents Congress from taking up the issue now and providing the necessary clear statement of intent to prevent doctors from prescribing drugs for suicidal purposes, nothing except all the political disincentives. If the national legislature cannot get up the nerve to address this question, why shouldn't the view adopted by the people of a state prevail?

Dr. Hamilton expresses concern that the people of Oregon have a law different from the laws in all the other states. He characterizes the structure of federalism as a lack of protection for people, as if uniformity of law is in itself beneficial. But it is traditional in American constitutional law to regard federalism as a device to protect individual liberty. Why should we think that there is a loss of liberty if the law varies from state to state, rather than to think that the ability of one state to break away from the others and try something new holds some promise of bringing new benefits to people? Hamilton's group has a policy preference, and he may very well have the better answer about physician-assisted suicide. But to analyze the federalism problem, we need to picture it the other way around: what if all the states permitted doctors to prescribe drugs for patients to commit suicide and one state decided to ban it? Would you still believe in the benefit of requiring the whole country always to move in one hulking pack? Permitting one state to engage in a policy experiment is not "amazing." It is fundamental consitutional law and a time-proven way to generate good policy (though it necessarily leaves room for bad policy too).

If the policy adopted by Oregon is really so bad, presumably Hamilton's group can convince Congress to make a clear federal law. If he can't do that, the shortcut of accepting Ashcroft's view of the matter should not be enough to override the policy the people of Oregon adopted.

The big American Idol revelation.

Why not begin with the national anthem? It is American Idol. And it's at least as momentous as a baseball game. Is this the beginning? Aren't we at least a quarter of the way through? Well, that first quarter was the red carpet pre-show, so that wasn't the show, per se.



"The Impossible Dream"--ah, now the cheese-fest kicks into gear as Diana and Fantasia are joined by Kelly and Ruben. Good lord! Ruben's gained another hundred pounds. We know what his "unreachable goal" is. Words said in my TV room: "I think Kelly's the best." "She's the one I feel the most love for. That's when the show was innocent."



We use TiVo to get through the two hour ordeal and watch an old episode of Will and Grace (a show I've never seen before) to pass the time. It's the episode with Madonna, and I enjoy Madonna's comic performance. Someone needs to get through to her that comedy is her acting place.



Oh, but back to American Idol. We're just whiling away the minutes trying to get to the one second of info that the show tonight exists to reveal ... What are we seeing here? ... I've lost track. A little Kimberly Caldwell.... Some not-quite-so-great Kelly ... Here's Ruben.... Drag out Diana and Fantasia again to wail through crap about dreams and believing. Oh, the horror of it all... no, not horror, just dead-end, relentless cheesiness. Oh, just tell me already! One of these two kids won. Just say it! ... Oh, okay, finally, it's Fantasia. So all's right in the world. Now, go ahead, get the hell out of here, leave me alone for another year. But, then, when you're ready to come back, I'll be right here, your big sucker, ready to go through the whole damn thing again.

Doctors, federalism and the Controlled Substances Act.

Today, the Ninth Circuit issued an opinion in Oregon v. Ashcroft rejecting the "Ashcroft Directive," the Attorney General's position that a doctor using a controlled substance to assist a suicide violates the federal Controlled Substances Act and faces criminal prosecution and the loss of prescription privileges. The court tapped federalism values as it made room for Oregon's experiment under its Death With Dignity Act.

In Washington v. Glucksberg, a 1997 Supreme Court case cited in today's opinion, Justice O'Connor wrote a concurring opinion, agreeing that there is no federal due process right to physician-assisted suicide and arguing for the narrow interpretation of constitutional rights because the states were actively serving as "laboratories," working through the complexities in this complicated area of policy. The laboratory that is Oregon subsequently produced the Death With Dignity Act, and the Ninth Circuit cited O'Connor's Glucksberg opinion as it showed great respect to Oregon's policy work today.

The court also cited another Ninth Circuit case about doctors, federalism and the Controlled Substances Act: Conant v. Walters (2002), which protected doctors who recommend marijuana for medicinal purposes under California's Compassionate Use Act. In Conant, the court saw the states as having the central role of supervising doctors and looked askance at the federal government's attempt to use the CSA to horn in on the state's area of responsibility. The Ashcroft Directive at issue in today's case also involved the federal government's use of the CSA to prevent doctors from carrying out the state's ideas about good medical practices. Conant involved the recognition of the doctors' First Amendment right to communicate with their patients, though Judge Kozinski's concurring opinion relied much more on federalism values. The case today saw a special role for the states with respect to doctors, and based on that traditional role, it chose a narrow interpretation of the CSA to leave that traditional role untouched.

In opting for narrow statutory interpretation to serve the interests of federalism, the Ninth Circuit cited the 1991 U.S. Supreme Court case, Gregory v. Ashcroft. Gregory stands for the proposition that federal statutes will not be read to change the traditional federal-state balance unless they make a clear statement of their intent to do so. (John Ashcroft was a party to that case as a state governor, successfully avoiding the application of the federal law against age discrimination to state judges.) Today's decision uses the Gregory presumption in favor of the traditional federalism balance and finds enough unclarity in the Controlled Substances Act to justify reading the CSA not to permit the Justice Department to punish doctors who are engaged in the practice of medicine within the standards set by state law.

One judge (on the three-judge panel) dissents. Judge Wallace relies heavily on the principle that courts should defer to the Attorney General's interpretation of the act he has the duty to enforce. Let Congress change the statute if he's wrong, or let the people elect a different President and bring in a new Attorney General. (Note that Clinton's AG, Janet Reno, took the position that the CSA did not reach the Oregon doctors). The majority rejected that sort of deference though, again, on federalism grounds. It cited the 2001 U.S. Supreme Court case Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, which rejected the Army Corps of Engineers' interpretation of the Clean Water Act to apply to nonnavigable streams. In the Solid Waste case, though, the Supreme Court wrote, "Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result." The problem there was that Congress may have reached the end of its Commerce Clause power if it meant to reach isolated wetlands. But there is no question that Congress could reach doctors in the practice of medicine under the Commerce Power. The Solid Waste Court premised this departure from the usual deference on a "prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority." That is not true in the Oregon case.

The Solid Waste court did also say that its concern about a statute reaching the edge of congressional power was "heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." And that is the issue the Ninth Circuit is relying on. So a key question that should face the U.S. Supreme Court very soon is whether to accept this idea that medical practice is a special area of state power to be protected from federal intrusions. The Ninth Circuit has taken the federalism cases of the the conservative Supreme Court and applied them to protect the autonomy of states like California and Oregon that are engaged in the sort of policymaking that tends to bug the hell out of conservatives.

Unlike individual constitutional rights, which can be found to extend to some substantive areas but not others, constitutional federalism protects state autonomy, and the state may do all sorts of different things with that autonomy. If you think you like (or don't like) federalism, you may want to rethink it if a state starts to do something you don't like (or do like). To want to do things with federalism, judges have to want to take the good policies and the bad, to trust local decisionmaking--unless they are reckless enough about their appearance of neutrality to turn their support for federalism values on and off, depending on whether they approve of what a particular state has done.

Why I want Kerry to pick John McCain for VP.

I keep thinking the old Joni Mitchell song "Carey"--listen here--and can see it would be easy to take the lyrics and do a song parody replacing "Carey get out your cane" with "Kerry and John McCain." And after Kerry's uncharitable crack when Bush fell off his bike, you could just keep that line "Oh, you're a mean old daddy, but I like you." Feel free to use the comments page with other suggestions for "Carey" to "Kerry" parodizing.

Lithwick on O'Connor.

Dahlia Lithwick witnesses a luncheon appearance by Justice O'Connor and observes, "she seems to have no idea how extraordinary she is." Oh, the key word there must be "seems." Modesty is a virtue. And good lawyers know to let the facts speak for themselves.

Geek God.

Maybe--as discussed in Slate--the universe was created by some science nerd who never even got to see his own creation, let alone rule over it. But what if a scientist in our universe sets off his own new universe?

If you started off a Big Bang in a lab, wouldn't the baby universe you created expand into your own universe, killing people and crushing buildings and so forth? [Stanford physicist Andrei] Linde assured me that there was no such danger. "The new universe would expand into itself," he said. "Its space would be so curved that it would look as tiny as an elementary particle. In fact, it might end up disappearing altogether from the world of its creator."



But why bother making a universe if it's going to run away from you? Wouldn't you want to have some power over how your creation unfolded, some way of making sure the beings that evolved in it turned out well? Linde's picture was as unsatisfying as Voltaire's idea of a creator who established our universe but then took no further interest in it or its creatures.



"You've got a point," Linde said. "At first I imagined that the creator might be able to send information into the new universe—to teach its creatures how to behave, to help them discover what the laws of nature are, and so forth. Then I started thinking. The inflation theory says that a baby universe blows up very quickly, like a balloon, in the tiniest fraction of a second. Suppose the creator tried to write something on it[s] surface, like 'Please remember I created you.' The inflationary expansion would make this message exponentially huge. The creatures in the new universe, living in a little corner of one letter, would never be able to read the whole thing."

Great article! Linde, who sounds awfully brilliant, thinks he knows that it takes hundred-thousandth of a gram of matter to start a universe. If he could manage to do it, would it be wrong? I don't see how you could ever be confident enough that it would create its own space to expand into, considering the potential consequences. I think anyone smart enough to figure out how to do this would be smart enough to refrain, so if this ever did happen, it seems it would have to have happened by mistake.

Oh no! TiVo is making me watch commercials!

Here's some important technology research, reported by Mediapost:

[R]esearch concludes that DVRs "recapture" TV commercial exposures that otherwise would have been "zapped" by non-DVR viewers. The study estimated that 51 percent of non-DVR viewers zap TV commercials, usually by using their remote control to change the channel when they come on. However, 96 percent of those viewers actually watch TV commercials when they become DVR subscribers, albeit in fast-forward mode.



While such fast-forwarding clearly diminishes the communications effectiveness of TV commercials, the study found that most fast-fowarders "notice" TV commercials either "always" (15 percent) or "sometimes" (52 percent) while zipping through the spots. Moreover, some big ad agencies and digital TV developers are exploring methods that would digitally compress commercials in such a way that would enable an abbreviated real-time version of the spots to be viewed during fast-forwarding.

Ah, this is true in my experience. I used to change channels when a commercial came on. For a while, until it broke, I had a ReplayTV device that had a button that jumped forward in 30 second increments (and then let you back up if you overshot in 6 second increments). But with TiVo you fastforward, and that forces you to look attentively at the material you are trying to skip so you can stop when the show reappears.



So now there needs to be some really crafty construction of the commercials so that they work to deliver their message when you are speeding by them, for example, by keeping words or pictures in a fixed place long enough that a speeder would see them.



(And I found that Mediapost article via Defamer, which I bookmarked, even though it didn't understand the TiVo fastforwarding phenomenon accurately (or didn't want to talk about that), because it has some nice gossip and celebrity photos (an Olson twin appearing to eat food, Clay Aiken boosting his reputation).)

Kerry's embarrassing history lecture.

The Boston Globe reports John Kerry's response to criticism about his proposal to avoid accepting the nomination at the Democratic convention:

The senator chuckled at the criticism.



"Once again, the Republicans don't know history, and they don't know facts," he said. "The truth is that it used to be that the convention, after nomination, traveled to the home or the state of the nominee to inform them they've been nominated. Woodrow Wilson was at his house in Princeton, N.J.; Harry Truman was in Independence," Mo., he said. "They're trying to make an issue out of something that they're surprised by, because . . . they're very upset someone might have a way of neutralizing their advantage."

Yes, but wouldn't it be funny if Kerry himself got history wrong? It just so happens he did!



Read pages 637-646 of David McCullough's biography "Truman." Listen to the speech here. Truman was quite clearly at the convention in 1948 and gave a big speech, the first televised speech. The band played "Hail to the Chief," and Truman strode out. Here's a description:

[A] dispute occupied so much "prime time" that when the party's candidate, President Truman, came to the podium to speak to America on TV, it was 2:00 a.m. and most sets were turned off. Truman was dressed perfectly for TV, however, in a crisp white linen suit with a black tie for the cameras. And he'd prepared his speech on small notecards so he could face the cameras when he spoke....



One viewer who'd stayed up to watch Truman was TV critic Jack Gould of the New York Times. To him, Truman looked "relaxed and supremely confident, swaying on the balls of his feet." And he claimed that Truman's performance "removed any doubt that television was going to place an increasing premium on personality in politics."

Ah, how I would love to hear a candidate deliver a speech extemporaneously from note cards that he'd written up himself!



(Note: I criticized Republican William Safire for misstating the history of the conventions here.)



UPDATE: Thanks for linking to Instapundit and to the official Bush campaign blog. By the way, in my post title, I meant that Kerry was lecturing us and it was embarrassing for him to take such a pedantic tone and then turn out to be wrong (especially about one of his own party's heroes). I didn't mean to cast myself as a lecturer out to embarrass him, but if you want to see me as the lecturer, okay.

Help Jeremy

buy a platform bed. And marvel at the power of seven, as each bed is named according to one of the seven dwarves and one of the seven deadly sins. (I voted for Grumpy Confirmation, because I'm a sucker for furniture that I think would help me do more reading.)



UPDATE: As Jeremy notes in the comments, that should have been "sacraments." Hmmm.... what does that say about me?



FURTHER UPDATE: And I had the wrong link ... to the photo from the top of the previous post, an apparent bed of ferns! You know, Nina has commented that I "never" post at night. I think this may show why!

The American Idol finale.

Well, I found that all quite ugly and boring. I thought it was just mean to show over and over that the judges preferred Fantasia, especially when Simon criticized Diana for the unbelievability of the words of the damned song they forced her to sing! And there is a limit to how much credit Fantasia deserves for the fact that Summertime is a beautiful song. Frankly, I thought there was a lot of weird yelling, a lot of lame judicial pimping, and a lot of insanely inappropriate gospel choir embellishment. And that horrid song, "I Believe"? That's the kind of song that makes me never want to hear music again. I really don't care who wins, and I really don't want to hear the ridiculous assertions people are going to make if Diana wins. But I'll just say, I think, if Diana wins--and she probably will--it will be because they generated sympathy by being mean to her and undermined their credibility by gushing over Fantasia. The worst remark was Simon's saying that Fantasia is the best of all American Idol contestants: there are quite a few Clay Aiken fans who should hit the ceiling over that and even some sensible, rational Kelly and Ruben fans who can take offense. Even the old Frenchie fans can get mad. And they may all express it tonight by voting for Diana. I do think Fantasia is the better of the two, but I don't think she sang very nicely tonight. But there is one thing I'd like to say about the show tonight and that is that I got a big laugh when it seemed as though the show was all over and they announced momentously: here's Paul Anka--as if we cared. And then this leathery orange being emerged and croaked "My Way." The hell?

The peony conversation.

The trees in my neighborhood darken all the yards and lead good gardeners to indulge heavily in ferns and other groundcover instead of flowers and vegetables and grass. What might, without the trees, have been lawn looks like this:



Once a new homebuyer sent her gardener over to my door to ask me to let her come into my yard and cut some branches off one of my backyard trees so she could plant a "sun garden." I was understanding up to a point, but then I said "these are wooded lots" (here in this neighborhood she had chosen instead of the sunny, treeless suburbs) so maybe she should plant a garden that does well in the shade. The gardener got quite snippy and started lecturing me about the law and asserting that she had a legal right to cut back the trees in her yard. One of the benefits of being a lawyer is that when someone decides to lecture you about law, it doesn't take you any time at all to decide that person is an ass. I didn't say, "You're lecturing me about law? I'm a law professor!" I just said, "You want to assert your legal rights. Fine. So do I. You can't cut any branches off my tree." I love the way she was so wrapped up in getting what she wanted and using any argument that she reminded me to stick to my own preferences and not do her any favors. And: great way to make a good impression as a new neighbor.

But that was an anomaly. Most homeowners here in University Heights work within the beautiful shadiness. A neighbor two houses down has this neatly kept arrangment with stone rabbit:



And my next-door neighbor has a yard full of shade-loving flowers, with the peonies beginning their days of glory. As I take this picture, the neighbor's mother comes out and talks to me and as we talk about peonies she almost remembers some lines about peonies by Keats and--elsewhere--Danny Kaye:



I say I'm going to put some of these pictures on my website, and I'll find those peony quotes and put them up as well, and I give her my blog address. The Keats poem is Ode on Melancholy:

But when the melancholy fit shall fall
Sudden from heaven like a weeping cloud,
That fosters the droop-headed flowers all,
And hides the green hill in an April shroud;
Then glut thy sorrow on a morning rose,
Or on the rainbow of the salt sand-wave,
Or on the wealth of globed peonies;
Or if thy mistress some rich anger shows,
Imprison her soft hand, and let her rave,
And feed deep, deep upon her peerless eyes.

And the Danny Kaye lines? Here you see one of his songs was "The Peony Bush." But I can't find the lyrics, so you'll have to buy the album, which seems to be a nice big collection of comic songs.

Anyway, I arrive at my own yard and see my overgrown oleaster hedge in bloom with its teeny-tiny, very un-peony-like flowers:

Mammary government.

After the Janet Jackson nipple hoopla, it's nice to see the Brits having their own little media nipple problem. The Guardian reports:

For free-loving Eurocrats, an image of a breastfeeding baby seemed the perfect way to promote the joy of voting in the European elections.



But a glimpse of an exposed nipple in the soft-focus advertisement has proved too much for flustered British censors to bear: the image has been cut from the production before it could outrage cinemagoers across the UK.



The new EU states made no objection to the uncut version, a montage of images depicting people making choices, including an opening shot of a baby deciding which nipple to feed from.



Prudish British censors felt differently. While the British Board of Film Classification gave the short film a "U" certificate, the Cinema Advertising Association ordered that the nipple must go.



In an edited version approved for British audiences, the baby's hand at first obscures the nipple, while a second brief shot of the child's mouth closing around the nipple has been completely axed.

I just have two things to say about this (other than that's a jarring use of the word "axed.")



1. The Janet Jackson nipple exposure was in much better taste because it connected the viewer's sexual interest to actual adult sexuality, whereas the EU ad exploits the viewer's interest in sex by showing a breast in a context that isn't sexual at all.



2. Portraying the voter as a suckling infant and government as the mother's breast really says something about the European conception of government!

Thumping global warming sermonette.

Is "The Day After Tomorrow" going to be worth seeing? Here's the Film Threat review. Bottom line:

“The Day after Tomorrow” is cinema at its loudest, biggest, most spectacular and funnest. Having said that, it has to be seen in a theatre – one with a good set of speakers aligning the wall and a nice elongated screen – otherwise you won’t experience the full effect of the thumping soundtrack. If you’re the type that doesn’t mind leaving your thinking cap with the usherette before the show, you’re going to have one hell of a time, and get an economical ‘environmental’ sermon as well.

Hmmmm.... who talks like that--"usherette," "thinking cap"? And find me a theater (or theatre) where the speakers don't just line the wall, they somehow manage to align it. (It was crooked.) I'm sorry, I can't trust this guy, even though he had the "funnest" time. The more gigantically, in-your-face fun a movie tries to be, especially if it relies on a "thumping soundtrack," the less fun it is for me. Oh, and CGI makes me ill. And an environmental sermonette? No, thanks.



Speaking of global warming ... when I went looking for a law school teaching job 20 years ago, I actually took global warming into account. I ruled out the south because I genuinely believed that within a few years the south would be impossibly hot and the north would become what the south had been. That's what I kept hearing. That's what the sermonettes circa 1983 were preaching! Meanwhile, it's May 25 and it wasn't even 50 degrees when I left the house this morning.

Don't forget your "I Believe" bingo card...

...for tonight's big American Idol finale. (Explained here in the Television Without Pity Idol Speculation thread.)

About those movies....

Tonya's talking about my profile: she hasn't read any of my favorite books and she hasn't seen any of my movies. She thinks I may even have made up a fake title in "Grave of the Fireflies." And she thinks the profile function would be a good way to find a boyfriend ... except that clicking on my movie links either gets you only me or gets a bunch of 18 to 21 year old guys. Guys younger than my sons. Guys who like geocaching, which actually sounds like fun but about which Tonya says "What the hell is that? Is Mark into some freaky stuff?" I think we can safely say Googling is not one of Tonya's interests.

If I wanted to use my profile to search for boyfriends, would I come up with this as a list of favorite movies? Note that it looks like I have a taste for madmen (My Dinner With Andre, Aguirre the Wrath of God, Crumb, 32 Short Films About Glenn Gould, Dr. Strangelove) or maybe just geeks (Fast Cheap & Out of Control), or lovable old clowns (Limelight, It's a Gift), and I am a feisty outcast (Grey Gardens, The Nights of Cabiria) who enjoys immersing myself in the saddest movie ever made (The Grave of the Fireflies).

Several of those movies make it part of the way into my heart with music: My Dinner With Andre, Crumb, 32 Short Films About Glenn Gould, Fast Cheap & Out of Control, Limelight, The Nights of Cabiria. To a lesser extent: Aguirre the Wrath of God, Dr. Strangelove.

Several of them affect me because they are about a person profoundly dedicated to art: My Dinner With Andre, Crumb, 32 Short Films About Glenn Gould, Limelight.

Three of them are about war, but very different aspects of war, all very moving in different ways: Aguirre the Wrath of God (delusional conquest in the jungle, looking for an unknown city, attacked by an unseen enemy), Dr. Strangelove (horrible, hilarious mistakes and nuclear weapons), The Grave of the Fireflies (the struggle to survive in the aftermath of firebombing and defeat).

Anyway, those really are my movies. (If I wanted to seem more serious than I really am, I wouldn't blog about American Idol all the time.) Of Tonya's recent favorite movies, I also love Election and Memento. (A couple other movies I love that are Memento-like are Fight Club, 12 Monkeys, and The Matrix.)

Tonya mentions Wonder Boys, but I have to steer clear of that because I loathe Michael Douglas. Why don't you like Michael Douglas, you might ask, but the question really should be: What is it about everything else you don't like that reminds you of Michael Douglas?