Analogizing law schools to the Boy Scouts.

As I noted yesterday, the Third Circuit relied on Boy Scouts v. Dale as it barred the enforcement of the Solomon Amendment. (The Solomon Amendment withholds funding from universities that don't give military recruiters the same access to campus facilities given to other recruiters.) It was ironic that a precedent that recognized a right of association permitting discrimination against gay persons provided the basis for saying that law schools had a right of association permitting them to exclude an employer that discriminated against gay persons. I've been reading the Third Circuit's long opinion today, trying to see how plausible the analogy really is. The court characterizes law schools as "expressive associations," then determines that the Solomon Amendment significantly affects the law schools' expression. The court writes -- there a link to the case here -- analogizing law schools' self-expression to the Boy Scouts:

Just as the Boy Scouts believed that "homosexual conduct is inconsistent with the Scout Oath," the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that "homosexuals do not provide a role model consistent with the expectations of Scouting families," id., the law schools maintain that military recruiters engaging in exclusionary hiring "do not provide a role model consistent with the expectations of," id., their students and the legal community. Just as the Boy Scouts endeavored to "inculcate [youth] with the Boy Scouts' values--both expressively and by example," the law schools endeavor to "inculcate" their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. And just as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior."

What concerns me about this analogy is the idea that "law schools endeavor to 'inculcate' their students with their chosen values." The Boy Scouts have decided to commit to a particular moral code and devote themselves to instilling it. Do law schools do the same thing? Aren't we devoted to empowering students by teaching legal skills and to fostering the expression of a diverse array of viewpoints with respect to issues that are subject to reasonable, professional debate? The law schools argue that they express themselves through modeling nondiscriminatory values. Having to accept a discriminatory recruiter on an equal basis with other recruiters, they say, interferes with their expression. That seems to me to go beyond Dale. The law school isn't chosing who will speak for them, while the Boy Scouts were choosing who will hold their leadership positions. We don't perceive the recruiters as speaking for the law school. That doesn't mean I think the law schools shouldn't win this one, but I do think there are some key differences from Dale.

Whatever happened to all the Madison photographs?

I haven't posted any Madison photographs in a long time. Not since that peace rally. I'm not sure why. Maybe it's the winter light: it's all glare or shadow and it's gone altogether in the late afternoon. Maybe it's that not much is going on out there now that it's colder. But it isn't all that cold. You still see guys in shorts and women in sandals. (Oh, it's in the 30s, so don't think I'm saying it's quite warm. It's just that people have a different attitude toward cold and clothing around here. We're pretty tough and we relish our freedom from bulky outerwear.) Maybe I'm just more likely to stay in if it's not genuinely warm. But let me get out today, camera in hand, and see what's going on. I'll at least get a walk.



UPDATE: Did you go for a walk? Yes. Did you see any guys in shorts? Yes, one. And the temperature is? 30 degrees. Anything photographable? I was about to come back and say no, but I paused on the Park Street bridge to take in the bleak scene and had a slight feeling that I was looking at something. This is, in any case, exactly what Madison is like today. If these vague clouds decide not to precipitate, we will have completed the month of November without snow.

No, no, not streetcars!

The Wisconsin State Journal reports on the continuing effort to impose streetcars on the city of Madison.

Mayor Dave Cieslewicz wants to press ahead with his idea for city streetcars regardless of other regional rail proposals.



Cieslewicz announced his plan to create a separate City Streetcar Committee at Monday night's Transport 2020 Implementation Task Force meeting.



Cieslewicz said he plans to present this new committee as a resolution at the Dec. 14 City Council meeting. Cieslewicz, who favors a plan to run electric streetcars Downtown, led a delegation of community leaders and developers to Portland, Ore., to study a trolley system earlier this year.

An emailer, who flagged this article, writes:

I am fascinated that no one brings up the fact that the cities that our city fathers & mothers are emulating all have much larger populations, very different demographics, and much longer commute times than Madison. And it is population, demographics and commute times which determine the market for light rail or trolleys. If someone can show me a similarly sized city to Madison that has a successful light rail/trolley system I might be convinced; but to the best of my research there is none. Chicago has about 3 million people. Portland has 1.7 million people. San Diego has 1.25 million. And, having lived in both areas, I can tell you that the commute from Middleton to downtown Madison IS NOTHING like the commute from San Ysidro to downtown San Diego. I am not hearing many people complain about the "grueling" 15 minute slow down on the beltline so where is the popular mandate for all this talk about light rail or trolleys? As an obviously enlighted conservative maybe you can explain to me what I am missing here.

You're missing this (to go back to the WSJ article):

The city has secured $300,000 from the federal government that will go toward a streetcar study, Cieslewicz said.

The feds are willing to pay for this particular boondoggle. And note that the main dispute within the city government is about the possible conflict with a separate commuter rail plan for the city (which also taps federal money).

"We need to have one vision about how we deal with transportation, and it needs to be regional," said County Board Sup. Scott McDonell, co- chairman of Transport 2020....



"I do think this is the wrong direction," said Michael Blaska, Transport 2020 committee member and former County Board member. "I always thought the problem was regional. It seems like that's where our priority ought to be. I really don't think that our community is large enough to support two systems."



McDonell said Transport 2020's next step is to figure out a process for dealing with the different ideas for commuter rail and streetcars and how they fit together.

There is $1 million in federal money for the commuter rail and $300,000 for the streetcars. I guess that ought to cover it. What's to worry about? Let's play with trains, trains, trains.

Is there anything wrong with selling a 1,420 calorie hamburger?

I say no. Hardee's is getting a lot of attention for its "Monster Thickburger." But the fact is that fancier places that sell hamburgers regularly sell things like this. All Hardee's is doing is selling something for much less.



I bought the DVD of "Super Size Me" a while back, and like the filmmaker trying to eat his super sized meal, I'm having trouble getting through it. Why? Well, partly because I'm exasperated listening to the soundtrack of a man chewing, which is disgusting, whatever he's eating. But what irks me more is the attempt to say something about real life by forcing yourself to eat what you don't even want and to eat a big McDonald's meal three times a day every day.



How about a little consideration for the many people who work hard all day, without eating much, and want to have a big, satisfying dinner without paying much? 1,420 calories is not that unreasonable for an adult man who is having his main meal of the day.

"The company got the idea from mothers just storing umbilical cords and navels in an album or what-not."

Yeah, what not.

Desperate film ad.

A two inch square on page B4 of today's NY: "Christian Bale Lost 63 pounds" and then some almost invisible writing ("It's one of the reasons the film works so well"), the name of the film, the fact that it's now playing, and a grungy little photo of said emaciated actor. The things one has to do to get attention.

Another last-week-of-law-school drawing.

Another drawing from the margin of my 1981 Federal Courts classnotes.







Law people may detect that the topic is habeas corpus -- FvN is Fay v. Noia -- a subject usually placed at the end of the fedcourts course. That placement seems to symbolize habeas as the last hope. The Supreme Court took certiorari in a significant habeas case yesterday, as Lyle Denniston reports over on SCOTUSblog:

The time period prison inmates have to file challenges in federal court to their convictions and sentences might be considerably longer than the one year set by Congress, depending upon how the Supreme Court decides the one case it agreed on Monday to hear, Dodd v. U.S. (docket 04-5286). The case, coming from the 11th Circuit, tests when that one-year deadline starts to run, under the Anti-Terrorism and Effective Death Penalty Act of 1996.



Under AEDPA, Congress set the requirements federal and state prisoners must meet if they want to try to take advantage, through a federal habeas challenge, of a constitutional right that has been newly recognized by the Supreme Court. Among the provisions of AEDPA is a one-year limit on the time such habeas petitions may be filed in federal court. Congress, however, apparently did not speak plainly enough in saying when that period starts to run, because the circuit courts are split on that question. The Supreme Court agreed to rule on the Dodd case to clear up that conflict.



The law specifies that the period runs from the date on which the Supreme Court “initially recognized” a new right. But it goes on to say that the right must have been made “retroactively applicable to cases” that are still pending in post-conviction court proceedings. The question before the Court is whether that second provision is a separate factor in calculating the time period.



In the case of Michael Donald Dodd, who was identified by prosecutors as a leader of a large Jamaican drug gang in New York City called the “Sprangler Posse,” the 11th Circuit ruled that the one-year period starts to run as soon as the Supreme Court has issued a ruling setting up a new right. The time, it said, is not extended until the point at which a court decides to apply the new right to cases still pending – an extension that could run a year or longer after the Supreme Court’s initial decision. The Circuit commented: “It would not be logical for Congress to have enacted a strict one-year limitation and then qualified that time by reference to ambiguous events,” such as a later ruling on making the right retroactive. The clause specifying retroactivity, the Circuit added, “qualifies the right asserted – not the time limit.”



That view, cutting off habeas challenges at an earlier point, is shared by the Second, Fifth and Eighth Circuits, but conflicts with the views of four other circuits – the Third, Sixth, Seventh and Ninth. Those four have ruled that, unless a court has declared that a new decision applies to already pending cases, the filing window has not yet opened. That approach can considerably lengthen the one-year span.

Just deal with it.

You've got to learn how to behave in airports.

"I said if it's that big a deal, just keep it," he said. "But then the screener gets really officious with me. He's taking everything out and looking at it, and then they're calling my flight, which inexplicably they call 30 minutes early. I kept saying, 'Look, I got to get going.' I look toward the gate."



"The screener says: 'You cannot look away from me. You have to have your eyes on me at all times,' " Mr. Stevens said. "Every time I would turn, this guy would stop and say, 'Do not look away!' I said, 'O.K., I'm sorry. Please just get me out of here.' "



That only brought over reinforcements. "Then a big fat guy who was sitting there eating comes over and says, 'If he does that again, we're going to throw him out of here.'"



"Every time I tried to reason with them they got nastier and nastier..."

I say deal with it. The man who tells this story was trying to get on a plane with two bottles of carpet cleaner in his carry-on bag! It's irrelevant that he was bringing home his wife's favorite cleaning product. I want the screeners to take account of a person's behavior. Everyone has a flight to catch! You think you're special because you're really a nice person -- with a wife! and a dog! You have to be awfully self-involved not to realize the screener doesn't know that. The man in the anecdote should have thought about how his behavior affected other people and just apologized.



UPDATE: Hamilton's Pamphlets takes a much more negative view of the screeners. I don't fly enough to have a first-hand opinion of what it's like out there these days. I do think the men described in the Times article were being childish, and I'm certainly not saying people ought to put up with everything in the name of security.

An interesting turnabout.

The Third Circuit takes the Boy Scouts case, in which the Supreme Court found a first amendment right to exclude a gay scoutleader, and uses it as a basis to say that universities have a right to express their opposition to discrimination against gays by excluding the U.S. military recruiters on campus.

A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, found that educational institutions have a First Amendment right to keep military recruiters off campuses to protest the Defense Department policy of excluding gays from the military.



The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory....



"Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout Oath," Judge Ambro wrote, "the law schools believe that employment discrimination is inconsistent with their commitment to fairness and justice."

Seinfeld on "Oprah."

Jerry comes out to a huge ovation. He looks at the audience and says: "This is something. You do this every day?"

The audience constantly over-applauds. Oprah notes that she and Jerry are the same age (50), and the audience goes wild.

Jerry's response is perfect: "I love being 50. It means I'm almost done." Oprah goes into no! no! mode and Jerry has to say "it's just a joke" and a few other things until he finally lands on "it doesn't matter how old you are," and the audience goes wild again.

Oprah asks why they've only released the first three seasons on DVD, and Jerry says, "That's 40 episodes. How much time do you have?" There's a very distinctively Seinfeld way to say "How much time do you have?" and you've got to imagine it to find it funny. It's impossible to render in type. Something like: "How … much time … do you … have?"

Oprah asks him what he finds funny on TV today, and he says he watches a lot of "Sesame Street," and he thinks about how people tell him he should do another show: "I sit there and I watch this Elmo guy. And he is so likeable and so funny and so charming. And I sit there with my daughter, and I think: let him bust his little red ass."

Jerry's wife is there (and moved to tears by the experience of being 20 feet away from Oprah), so the conversation turns to marriage. Jerry says he was surprised at all the questions. He thought "Do you take this woman?" would be the last one. But now it's "How long are you going to sit there watching TV?": "I wish I knew the answer to that one myself."

Jerry's wife tells us he's "sweet," but can't come up with much of an answer to Oprah's request for a story. He's nice to his kids.

Oprah asks him about his obsessions: dolphins (they have "nice smiles"), Bic pens ("Every joke for the Seinfeld show was written with a Bic pen"), sneakers ("I'm wearing shoes just for you.")

The Puffy Shirt is being put in the Smithsonian, we're told.

Seinfeld's wife says has not seen all the episodes of "Seinfeld."

Oprah brings out Jason Alexander. The crowd acts pretty thrilled, even though it's just Jason Alexander.

Oprah brings out Julia Louis-Dreyfus. Clearly, the audience (nearly all women) likes her more than Jason. She looks great, Oprah tells her. Truthfully! Oprah shows Julia a clip of several audience members imitating Elaine's little steps dance [added: technically, it's "The Little Kicks."]. Julia says "wow" but doesn't seem that enthused. She seems not to be so much like the people in the audience, even though they identify with Elaine. Jerry helps out with a joke: "It's really true that girls just wanna have fun."

Oprah brings out Michael Richards. His hair is slicked down. He describes looking for "little things" in the script, ad libbing "the sound effects," practicing lines off by himself, and feeling that Kramer was playing him and that what he needed to do was to "get out of the way."

We're told Jerry bought Billy Joel's house in the Hamptons and we're shown some photos of him and his wife and kids on a windswept beach and in a sparkling, white kitchen. The audience goes "aaah!"

Talking about the last "Seinfeld" show, Jason Alexander says that, as they were about to shoot, Jerry said to them, "For the rest of our lives, when anyone thinks of any one of us, they'll think of all four." The audience goes "awwww." Oprah goes, "That is sweet." When the show ended, Jerry took some parts of the set (which he keeps with his Porsches). He took the door, the couch, and one of the booths from the restaurant. Michael Richards and Jason Alexander just took their shoes and (Alexander only) his glasses. Julia Louis-Dreyfus took her wardrobe, and jokes that she doesn't know why. (On the DVD commentary, she often talks about how bad Elaine's clothes were, and also how bad Jerry's clothes were. George's clothes were always intended to look bad. Kramer's clothes were supposed to be strange, and it's noted in the DVD commentary that only Kramer's clothes look good now. That vintage look aged well.)

After the final commercial break, there's only time enough to push the DVD one more time and say good-bye, but Oprah whips the crowd back up into a hysterical, jubilant cheer. As the closing credits roll, Oprah hugs each of the "Seinfeld" castmembers, kicking one leg up when she hugs Jerry and again when she hugs Michael Richards.

UPDATE: The group continues, more casually, on "Oprah After the Show." Oprah talks about how Jerry and his wife invited her to dinner but she had to refuse because she's on a diet that has a rule against eating after 7:30 at night.

We're shown photos of Julia Louis-Dreyfus's house, which has a retractable roof is dedicated to ecological principles. "It has sustainable woods" causes Jerry to say "What does that mean?" The question isn't answered. It's a joke. The tile, we're told, is made from recycled carpet. "It is a totally green house," Louis-Dreyfus says. Much applause.

Jerry offers this piece of advice: "If you never make a career choice based on money, you'll always have money." Hey, it worked for him!

Oprah asks what's your favorite episode. Jerry: "The Marine Biologist." Jason: "The Parking Garage." Michael: "The Parking Garage." Julia: wasn't asked.

They talk about Jerry's favorite comedian, Bill Cosby. When he walks down the street, Jerry says, he's happy to meet everyone who comes up to him. Oprah tells us that when he appeared on her show, he was dropped off alone! She clearly thinks this is flat-out amazing.

What comedian does Michael Richards love? Charlie Chaplin, Stan Laurel, Jacques Tati, the early Peter Sellers. Good answer! So good it almost makes me cry to think that more roles have not come Richards' way. He adds: "And I love the great Red Skelton." Ah! I loved Red Skelton so much when I was a child. I loved him in that deep, childlike way where you completely believe that everyone loves him.

Julia Louis-Dreyfus? "I think Ellen DeGeneres is unbelievably funny." She also loves the funny actresses, specifically, Mary Tyler Moore and Lucy.

Jason? Jon Stewart. And Jerry.

What's next for TV?

I find this a little surprising:

Fox brass are said to be particularly high on a project that one could dub "That '70s B.C. Show": It imagines Jesus as a slacker teen under pressure from his parents -- God and Mary -- to enter the family carpentry business.

UPDATE: Actually, I don't think this is such a bad idea. Referring to it as "That '70s B.C. Show" was an incredibly lame joke, but I think the show could be well done. Have you ever watched the beginning of the DVD of "The Last Temptation of Christ" with the director's commentary on? Jesus is just writhing on the ground, but Scorsese is saying that what interested him was the idea that Jesus would have gradually understood and had to face the reality of who he was and that this would have caused him a great deal of personal turmoil. With that approach to the subject matter, go back to an even earlier period, where Jesus is a teenager. We have no Biblical text describing this period of his life, so a leap of imagination is required. You have to invent a character. I'm sure that would offend some people, but "The Last Temptation of Christ" offended some people and so do many TV shows for one reason or another.



I think the show seems as though it might be like "Joan of Arcadia," which handles the subject of a teenager singled out by God and dealing with it in an American teenager way. "Joan" is a drama, and I think the Jesus TV show is a comedy, but conceivably it could be well-written.



I'd like to see more sitcoms set in historical time. There's "That 70s Show" and other shows in the "Happy Days" mold that use the recent American past, but not much else. If you're as old as I am, you might remember "It's About Time," which took place in the Stone Age (and included some time traveling astronauts, one of whom was played by one of the "Car 54, Where Are You?" actors -- not the one who became Herman Munster ... the other one). "It's About Time," like "Car 54," had a very memorable theme song.



ANOTHER UPDATE: A correction. The "Car 54" actor (Joe E. Ross) played one of the cavemen.

The medical marijuana oral argument.

The first report looks good for the federal government on this, as Justice Souter seems dubious about the plaintiffs' argument:

Backers of California's law seem to think "everybody is going to get it from a friend or from plants in the back yard," Justice David H. Souter told the lawyer for the two women. "They're going to get it in the street. Why isn't that the sensible assumption?"

UPDATE: Justice Breyer also seemed unreceptive to the plaintiffs' argument:

Justice Stephen Breyer said supporters of marijuana for the ill should take their fight to federal drug regulators before coming to the Supreme Court, and several justices repeatedly referred to America's drug addiction problems.

But it's important to note that Breyer and Souter have strongly and consistently backed strong deference to the policy choices of the federal government and opposed the enforcement of constitutional federalism. To be principled and consistent, they really should be expected to reject these arguments, as I noted yesterday.



ANOTHER UPDATE: Justice Scalia shows some signs of agreeing with the federal government's position that it may regulate an entire market, even trivial parts of the market that seem quite separated from the ordinary trade in the product that gave rise to the motivation to control it:

Justice Antonin Scalia asked [plaintiffs' attorney Randy] Barnett how his argument of a trivial economic effect from medical marijuana would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.



"Are those laws likewise unconstitutional?'' Scalia asked.

The 9th Circuit had relied on the notion that the medical use of home-grown marijuana does not interact with the market in marijuana, and Justice Stevens asked a question that seemed designed to pursue this theory:

Stevens asked Barnett how allowing medical use of marijuana would affect the illegal market. The lawyer said it would slightly reduce demand and reduce prices.



"Reduce demand and reduce prices? Are you sure?'' Stevens said.

Barnette seems to have conceded a point that related to a key part of the 9th Circuit's decision, which is why Stevens express some surprise, saying "Are you sure?"



Justice O'Connor is reported as asking whether medical use of marijuana is "something traditionally regulated by states.'' It's hard to tell, without more, which way she may have been leaning by asking this. I'd like to see more of the transcript before speculating any more, but I'll just note that O'Connor's vote is often crucial. Still, from what I've seen so far -- admittedly little -- I think the Court will find the federal government has the power to regulate here.



UPDATE: Marty Lederman at SCOTUSblog predicts the decision for the federal government will be unanimous (though Justice Thomas might conceivably dissent). Lyle Denniston, also at SCOTUSblog, seems to perceive a ray of light for the plaintiffs. I'll read the whole transcript when it's available, but as indicated above, I agree with Lederman.

The last week of law school, and an old law school doodle.

It's the last full week of the semester here at the law school. Consequently, I feel a lot of pressure to get through the material--none of the usual expanding into areas that stimulate good discussion. It's time to be crisp and on task. You can't just increase the flow of information because it's close to the end. That's not fair. Yet you have to get to the end somehow. In one class, we've stayed on schedule and will finish simply by continuing at the pace we've followed all semester. In the other class, I've had to use the technique of cutting readings and switching to lecturing. But then there is a special obligation to make the lectures clear. Things we would have puzzled over, had we read a case on the subject, must be simplified now.



I'll have some more news-oriented blogging later. I'm especially interested in two federalism cases to be argued in the Supreme Court today. But, for now, I'll leave you with a doodle I did years ago in the margin of my law school class notes. I used to find drawing in the margins like this helped me focus on what I was hearing. The date was 5/6/81, sometime close to the end of the semester in Federal Courts, where maybe we were encountering new material, tying things together, and still leaving a few threads dangling.

Jerry Falwell's curtain imagery.

Jerry Falwell was on "Meet the Press" today. Tim Russert reminded him of the offensive statement he made shortly after 9/11:

I want to ask Reverend Falwell about something and broaden the conversation. We talked about Iraq and the war on terrorism. Something that you said two days after September 11, when you were with Reverend Pat Robertson: "I fear... that [September 11th] is only the beginning. ...If, in fact, God continues to lift the curtain and allow the enemies of America to give us probably what we deserve ... I really believe that the pagans, and the abortionists, and the feminists, and the gays and lesbians who are actively trying to make that an alternative lifestyle ... all of them who have tried to secularize America -- I point the finger in their face and say `you helped this happen.'"

Falwell answered:

And I went on to say in a sleeping church, a lethargic church likewise is responsible. I do believe, as Ben Franklin said, that God rules in the affairs of men and of nations. I believe that when God blesses a nation, as he's blessed America for a lot of reasons, things happen that don't happen other places. I believe when we defy the Lord, I think we pay a price for it. So I do believe in the sovereignty of God.



In our house, for example, my wife of 47 years and our three children, eight grandchildren, we begin every day in prayer. We ask the Lord's blessings. This morning in the shower I prayed for all 15 of our family by name, by need, because I want the curtain of God's provision upon them and protection along the highways and decision-making, God's wisdom.

Falwell praying in the shower? I could have gone my whole life without having that picture in my head. But now that he's said it, I have some idea where he gets his imagery. "God continues to lift the curtain ..." Was that the shower curtain? God as Norman Bates?

First, a multiple choice question, then some discussion of wabi-sabi.

Fill in the blank, completing the sequence:

sewing machine, fan, tea kettle, toaster, _________

a. iron



b. vacuum cleaner



c. vibrator

You can find the answer in this article, pointed to by Nina, who comments on something else about the article, wabi-sabi, to be specific. As to why she's sitting next to a potato-chip-spilling guy, read the previous post.



Wabi-sabi is a cool Japanese aesthetic.

It's about spare living spaces and well-worn handmade objects, and an appreciation of quiet pleasures — indeed, of plain old quiet. Sweeping a floor rather than vacuuming, taking up knitting, washing the dishes by hand — these are wabi-sabi activities....



Don't buy a new couch .... Try not to freak out when you come home to a dirty house. Turn the lights off and light some candles, making sure they're strategically placed away from the dirty dishes and the dog hair on the carpet.

Hmmm.... I've been following this aesthetic for years. Minus the dog and the knitting. Ideally, I want to live in a place with only wood floors and no carpeting and throw out the vacuum altogether. It's such an ugly thing.



Speaking of sweeping (and things Japanese), on Friday evening, we parked the car on the street in front of a lit up Aikido place. Inside were about ten men in traditional Japanese clothes, holding what at first I thought were swords. But they were brooms. They were sweeping the place, possibly ritualistically, and it was such a fascinating sight that I watched them as I walked a couple steps and knocked into a telephone pole. Even though the street was otherwise entirely deserted, at that very moment a man walked by, as if he had been dropped onto the earth for the purpose of laughing at me. Really, that happened. That was not a Freudian dream.

The marijuana case: a great test of law and politics.

Tomorrow the Supreme Court hears oral argument in Raich v. Ashcroft, the medical marijuana case, which sets the federal government's interest in comprehensive regulation of the marijuana market against the state's interest in controlling small, isolated uses of marijuana. In the case at hand, California would like to be free to legalize the use of marijuana for medicinal purposes.

Generally, judicial and political liberals have opposed the Supreme Court's enforcement of constitutional federalism, which limits the reach of federal governmental power and leaves room for individual states to experiment with their own policies, suited to local conditions and local political preferences. But some state policy experiments are appealing to those who did not like it when the Supreme Court used ideas about federalism to strike down the Gun-Free School Zones Act and part of the Violence Against Women Act.

So it will be interesting to see the response of those who have harshly criticized the majority's recent federalism decisions and have professed abject deference to Congress and the Executive branch about federalism matters. From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.

Conservatives face a dilemma too, if their conservatism is the kind that puts great importance on strong anti-drug enforcement. But conservatives who take the libertarian position on drugs can happily seize a two-fold opportunity: they can demonstrate a principled fidelity to constitutional federalism and, at the same time, improve federalism's reputation among liberals.

My earlier posts about federalism and medical marijuana are here and here .

Drawing of the day.

Here's a photograph of a drawing that I like in part because on the left side you can see through to the drawing on the previous page. Another thing I like about the photograph is that red background, which happens to be the Corvette brochure that got me blogging about cars a while back. That gives me a good opportunity to save readers the trouble of sending any more "so are you buying the Corvette?" emails and say there was virtually never any chance I'd buy a Corvette (even though it won on the blogpoll)). So am I buying the Audi TT? That's what I'd buy if I were to buy a new car, but right now I'm keeping my Cosmic Green Beetle (to which I recently added a spectacular dent).

The President is fat.

The NYT is exploring new ways to knock the President:

Yes, the president of the United States, known for his robust good health, is officially overweight, according to the standards of the National Institutes of Health. At 6 feet and 194 pounds, his body mass index, or B.M.I., a measurement of height relative to weight, is 26.4, and 25 or above is officially overweight for both sexes.

Actually, I was just noticing in the video of the President from his visit to Chile that his Texan walking style now involves leading with a prominent belly.



Click on "graphic" at the link to see a chart comparing presidential BMIs. We all know who the fattest President was, but did you know what a teeny tiny man l'il Jimmy Madison was? At 5'4" and 99 pounds, don't you just want to pick him up and carry him around?



I should note that the article is also another one of the NYT's many attempts to remind us of the horrendous American fatness problem, which is always presented as a matter of health rather than aesthetics.



UPDATE: A medically trained reader notes that writes:

Just commenting on BMI. BMI is a cookie cutter measurement and we all know everyone is built different- some are beanpole, some are stout. A six foot 250 lb predominantly fat person would have the same BMI as a 250 lb six foot professional athlete. The BMI only uses two metrics: height and weight. It should be used as one tool in evaluating someone's health along with fitness, comorbidities, family history, etc... The problems are obvious when you consider muscle is heavier than fat.

Hey, the last person who mentioned that fact to me was the butcher that sold me a pork loin roast!

Gore Vidal bumbles to the defense of Oliver Stone.

Reuters reports:

Tired of watching the movie critics of America pile on director Oliver Stone - or perhaps sensing a golden opportunity to make headlines - novelist Gore Vidal leaped to Alexander's defense, calling Stone's film barrier-breaking for its frank depiction of bisexuality.



Vidal tells Reuters that Stone's $160 million Thanksgiving turkey was "a breakthrough in what you can make films about. Movies are always the last to register changes in society and this movie does it."

Except that since "Alexander" is a monumental flop, it would seem to stand more as a lesson in what you can't make films about. Which, of course, it isn't either, because it's really just a thuddingly non-breakthough reminder that people don't want to go to see boring, bad movies. But Vidal does have a point, and it's the point Vidal usually has: Look at meeeeeeee!!!!

Blogging self-censorship.

Tonya recounts part of a conversation she and I had last night at Harmony Bar, including a lot about beards. She writes: "Why should I spend so much time shaving, tweezing, exfoliating, moisturizing, deep conditioning, blow drying, curling and polishing when the men around me look like freaking Grizzly Adams?" But having said all that, she hits the real topic: how much should a blogger self-censor? Especially a blogging lawprof.

Democratic art.

Yesterday, I complained about the Wisconsin quarter. An emailer wrote:

If I do collect that one at all it will be like the daffy great-aunt, relegated to some attic room. Most of the state quarters have been, shall we say, "unfortunate," but that's what you get with a popularity contest amongst amateur designs. Compare that to the spring 2005 version of the nickel.

Yes, the new nickel is excellent. I note the entire bison is pictured, not just a head. The the new Jefferson profile is even less that a head now. Still, it looks nice, and it was designed by artists. Art cannot really be done by a democratic process.



For a demonstration of how bad art produced by democracy is, I strongly recommend "Painting by Numbers: Komar and Melamid's Scientific Guide to Art." This is from the Library Journal review:

In December 1993, the Russian emigre art collaborators Komar and Melamid began a statistical market research poll to determine America's "most wanted" and "most unwanted" paintings. Since then, the whimsical project has spread around the world. Polls in the United States, Ukraine, France, Iceland, Turkey, Denmark, Finland, Kenya, and China revealed that people wanted portraits of their families and always "blue landscapes." After conducting research, the pair paint made-to-order works that meet the wanted (landscape) and unwanted (abstract) criteria; they follow up with town meetings as virtual performance pieces.

The paintings in the book, produced to give people what they've said they wanted, are hilarious.

For a brilliant collection of ideas about art and facts about artists, I recommend David Markson's "This Is Not a Novel." It contains the too-snobbish Schoenberg quote: "If it is art it is not for all, and if it is for all it is not art." It also contains a quote, from Diego Rivera, at the other end of the spectrum of opinion about art: "Art which is not propanganda is not art."



UPDATE: Komar and Melamid have a terrific website, where you can read their surveys and look at the various paintings. The material is well-organized. You can click through all the countries on a particular question. I enjoyed seeing what color was the most popular in each country. It's always blue! And the second most popular color is nearly always green. Is that because we've adapted to the natural world?



Komar and Melamid (with David Soldier) also have a most wanted songs project, as one of my students just pointed out. Unfortunately, you can't listen to the most wanted song at this website, but here's their description of it:

The most favored ensemble, determined from a rating by participants of their favorite instruments in combination, comprises a moderately sized group (three to ten instruments) consisting of guitar, piano, saxophone, bass, drums, violin, cello, synthesizer, with low male and female vocals singing in rock/r&b style. The favorite lyrics narrate a love story, and the favorite listening circumstance is at home. The only feature in lyric subjects that occurs in both most wanted and unwanted categories is “intellectual stimulation.” Most participants desire music of moderate duration (approximately 5 minutes), moderate pitch range, moderate tempo, and moderate to loud volume, and display a profound dislike of the alternatives. If the survey provides an accurate analysis of these factors for the population, and assuming that the preference for each factor follows a Gaussian (i.e. bell-curve) distribution, the combination of these qualities, even to the point of sensory overload and stylistic discohesion, will result in a musical work that will be unavoidably and uncontrollably “liked” by 72 plus or minus 12% (standard deviation; Kolmogorov-Smirnov statistic) of listeners.

UPDATE: Prof. Bainbridge responds to this post, adding a point, which he predicts I'll agree with, and I mostly do. Art is best produced by artists, and it is usually best that they act separately from government. But I don't support the complete separation of art and government, because government must have its coins and paper money, monuments, signs, buildings, and so forth. In producing these things, it is best to rely on artistic experts and not simply put things up for a vote. I want such things to be beautiful, and it seems that many of the people who are doing the voting are thinking about things other than beauty, such as the representation of corn on the quarter. As to trusting markets to produce art, as Prof. Bainbridge recommends (and I agree), we end up with a lot of trashy but decently good pop art, and there isn't anything terribly wrong with that (although I insist on zoning to protect me from trash of the architectural kind). There will still be artists who chose to produce high art, and some people will pay money to some of them some of the time.

Today's drawing: Voltaire, pens.

This is the drawing I wish I'd used yesterday. It's from the same notebook as the Thanksgiving drawing of the wineglass, which was not drawn on Thanksgiving but in Paris a few years ago. The reason I wish I'd used this drawing yesterday is that yesterday was the day my Normblog profile ran, and there was a reference to Voltaire in one of my answers. I don't know when I'm going to have occasion to talk about Voltaire again and rather than try to work Voltaire into some future posting, let me use the Voltaire drawing today. This drawing was done at the Louvre, the bust is the work of Houdin, and the comment in the cartoon bubble was not something I heard but something I read on a card on the wall.



Going through my Paris notebook is always troubling to me because I remember how much I disliked the pens I took to Paris. They were India ink felt tips that just didn't feel right. I had recently taken a trip to Amsterdam and done my best travel notebooks, and I knew part of the reason the Amsterdam notebooks worked out well was the pen: a new gold-nibbed Mont Blanc pen, which I filled with fountain India ink. A fountain pen enthusiast emailed after I posted the law school notes drawing and asked if I still used a fountain pen. This is a bit of a sore subject with me, as I wrote back:

I lost the Pelikan pen that got me through law school, eventually admitted to myself that I wasn't going to find it, replaced it with a Mont Blanc pen, which I used a lot, including for drawings (with fountain India ink), finally admitted that it just didn't work right anymore and I wasn't going to be able to figure out a way to fix it, replaced it with another Pelikan pen, which I promptly lost. So I'm in the phase where I think I've got a shot at finding the lost pen.

The emailer sent me to a very nice website for pen enthusiasts, and I'm thinking maybe I can find some way to revive the Mont Blanc pen, which is the one that helped me so much in Amsterdam and was so sadly missed in Paris. I've never had a pen I liked so much as the Pelikan pen I had in law school. When I finally gave in and replaced the Mont Blanc with a new Pelikan, I really hoped to get back to the feeling of the best pen I ever had, the law school pen. But the truth is the new Pelikan did not feel like the one given to me 25 years earlier. Is it possible I lost it on purpose out of disappointment? Yet I still believe that I would have broken it in and made it feel like the old one. Maybe memories of how things felt 25 years ago cannot be trusted.

But back to Voltaire. Mont Blanc, I see, makes a Voltaire fountain pen. This seems fortuitous. Maybe I should buy one. What is the connection between pens and Voltaire? He was a writer, of course. But also, he used a pen name. It would be quite nice if it were Voltaire who said "The pen is mightier than the sword," but he did not, even though it seems like the sort of thing he might have said. Even that other great free speech quote, is apparently not actually his. But there is a Voltaire pen quote:

To hold a pen is to be at war.

"We don't need no education."

But we do want our royalties.

State colors, state quarters.

Here are the winners of a Crayola contest, with a color name for each state. You can buy the State Colors Collection of crayons here. Maybe a good Christmas present for someone who thinks the state quarters are cool.

Since they were producing a set of crayons, these are not the 50 best names they got. They needed names to cover a proper array of colors. In case you're wondering, black is "Abe Lincoln's Hat," the state color for Illinois. White is "Space Needle," the Washington crayon. Here's a local news story about the woman -- hey, it wasn't a contest for kids? -- who won the Wisconsin section of the contest. And, of course, yeah, it's cheese-related.

Speaking of cheese-related and the state quarters, the Wisconsin quarter came out recently, and, man, is it bad. Possibly the worst state quarter yet. I understand why something dairy-related was desired, but why a cow head and a block of cheese? And then why throw in an ear of corn? The corn farmers are jealous of the dairy farmers getting all the attention? And a block of cheese is not an interesting image. They should have used just the cow -- and the full cow, not the severed head of a cow. Look at the Kentucky quarter, which uses just a horse and it's the entire horse. I suppose Kentucky figured out that a horse's head, shorn of the horse's body, would have led to "Godfather" jokes.

Why haven't the states later in line learned from the mistakes of previous state quarters? The best state quarters show just one thing. The more items you throw together the worse it gets. And keep the words to a minimum! Wisconsin puts its motto on the quarter, on a dumb banner swirling from cow head to cheese block. It's true the motto is only one word, but what does that word say about Wisconsin?

Wisconsin adopted the State motto, "Forward," in 1851, reflecting Wisconsin's continuous drive to be a national leader.

So basically, we're admitting that we're backward and we need to catch up.

Chris peeks over at what I've just written and says: "You should note that the dairy product does not come out of the cow's head. The important aspect of the cow is not its head."

A cow's udder -- and nothing more! -- now, that would be a fabulous state quarter. If we had the guts to do that, why, then, we wouldn't be backward any more!

"The widespread parable version."

Virginia Heffernan, in today's NYT, reviews tonight's incendiary "20/20":

"20/20" takes the position that the description of [the Matthew Shepard] murder as an anti-gay hate crime is entirely wrong. After six years of sentimental theater, documentaries and television movies that have bolstered the hate-crime view, tonight's program is no less than iconoclastic. ...



None of this ... changes the horror of the murder, or the inspiration and awareness that people gained from the widespread parable version of the event. But getting the truth - in ABC's revisionist investigation, which seeks to overturn the powerful and canonical version of the facts and meaning of this crime - is worthwhile, as it thickens the description and adds to the mystery of what happened that night in Laramie.

"The widespread parable version" remains intact as a source of "inspiration and awareness"? "Getting at the truth" is "worthwhile" because it "thickens the description and adds to the mystery"? We like the mythological story, and the reason we also like the truth is because it makes the myth more mysterious???



Isn't the truth a bit more important than that?



Consider this commentary from JoAnn Wypijewski in the L.A. Times:

So was Shepard's murder a hate crime or was it something else? "20/20" comes down on the side of something else, amplifying the meth connection, which I first reported in Harper's in 1999, and exploring Laramie's drug subculture, through which Shepard seems to have become acquainted with McKinney. Some gay advocates of hate crime laws have already blasted the network for raising the question. Michael Adams of Lambda Legal Defense says ABC is trying to "de-gay the murder."



Scrapping over the nature of Shepard's victimhood is the wrong debate. Whatever his killer's degree of homophobia, Shepard is dead. Powerless to restore him, society is obligated to ask what is owed to the living — to gay people, who have suffered ages of abuse, and also criminal defendants. Tinkering with criminal law is a backward step in countering the deep cultural realities of homophobia, racism, sexism. Prosecuting murder as a hate crime only lets the rest of us think we're off the hook, while it tramples on justice.

If a legend is used as leverage to change the law, we need to be willing to think about whether the legend is true, and if it is not, we need to be willing to rethink our analysis.



Remember Cindy Dixon? She was the mother of Russell Henderson, one of the two men convicted of murdering Matthew Shepard. Henderson, the L.A. Times article tells us, "was the driver that night. He never hit Shepard, but, on McKinney's order, he tied him to the fence."

In January 1999, Henderson's mother, Cindy Dixon, was found dead. She had been raped and struck and left in the snow to die. No powerful advocates spoke for her. She was likely to come to a bad end, people said, what with the drinking and the men, and then her son….



Nobody took the measure of hate. By the time the Dixon case was wrapped up, they weren't even talking murder. A man pleaded guilty to manslaughter, and the same judge who sent Dixon's son to prison forever sentenced her killer to four to nine years. He got out last year.

Justice demands that we think clearly about criminal responsibility and not let our minds be clouded by evocative stories that mesh with our assumptions about the world and our social policy aspirations. I believe the cause of gay rights is a very good one, and I also think that if the cause is good, truth should serve it. If you think your cause is so important that you must put it ahead of the truth, you are deeply confused.



UPDATE: I've watched the "20/20," and it didn't impress me much. There were a lot of interviews with people who had plenty of reason to lie. Now that the public's strong reaction to the original "gay panic" story is known, the two murderers have every motivation to say it wasn't like that at all. And the people of Laramie can't appreciate having their town associated with bigotry, so they too have a motivation to retell the story. I have no idea what is true here. Since the men weren't convicted of a "hate crime" and, in any event, they pleaded guilty, their convictions are sound whether their motivation was robbery or bigotry. As to the question of whether there should be hate crime legislation, I do not mean to offer an opinion on the subject. I have not done the complex policy analysis that I think is needed to decide whether there should be additional, separately defined crimes in addition to murder and assault. The main point of this post is to highlight the importance of truth and to be critical of people who would subordinate truth to their political and policy goals.

Doodle of the day.

Profile.

My Normblog profile is up!

"The unexpected ruling, released in the evening darkness."

The NYT reports:

"There is a God," Mr. Yushchenko said to the crowd, and told them that complaints of election abuse would be heard in court. The square erupted in cheers and applause.

I understand the deep feeling that makes someone say "There is a God" in this situation, but there is also law: there is something in human beings that wills law into existence.

One more thing.

I'm sorry, but I've got to kick "Alexander" one more time, even as it dies at the box office. For anyone who thinks Oliver Stone is bestowing some sort of favor on gay people, read this insight from the Washington Post review:

In many ways the movie feels 50 years old already. It offers the standard 1950s melodramatic theory of Alexander's sexual orientation: the scheming, sexualized, domineering mother, and the distant, uncaring father.

A Thanksgiving-appropriate post.

Sorry for going off the Thanksgiving topic in that last post (my longest ever, long enough that I know that without looking over any other posts). Here's a Thanksgiving post as an antidote, in which Jim Lindgren, of Volokh Conspiracy, gives us a contemporaneous account of the original feasting and makes some observations about the history of gun ownership. And this is a good article in the NYT about immigrants experiencing some perplexity over Thanksgiving ("The children have Thursday off to eat a turkey?").

Rabies.

Read the amazing story of the doctors--here in Wisconsin--saving the teenage girl who developed rabies after being bitten by a bat. It is the first time a human being has survived rabies without receiving the vaccination. Sometimes people don't go in for treatment because they don't realize they've been bitten, but this young woman did know. A bat flew into her church during a service:

"As society has developed, people have forgotten the folklore about don't play with stray animals, or stay away from bats," Dr. Willoughby explained. The bat drew blood, he said, but the bite was quick and small, so Jeanna thought she had just been scratched. Her fellow churchgoers assumed that only healthy bats could fly, so they picked it up after it flew into a window and threw it out the door.

The girl was not taken to a doctor, or she would have received the vaccination. Ah! People need to know not to touch a bat!



I used to have problems with bats getting into my house. As I later figured out, they came in through the attic. More than once, I went up to my bedroom at night, turned on the light, and had a bat swoop right at me. I always scream, quite hysterically, but then I try to figure out a solution. One night, a few years ago, I had already prepared a box to trap the next bat. It was a shoe box with one edge of the lid removed so that the box could be placed over the bat when it landed on a surface and the lid slid under. Then, I planned to toss the box out the window. The first time I tried this maneuver, the bat squiggled its way out as I was trying to get the lid under. It flew lengthwise figure eights in the room over and over and never found the open window. Finally, it flopped onto a table, I got it in the box, and I threw the box out the window, feeling quite triumphant. I closed the window and went to wash my hands and saw a tiny wound --- just four little lines -- on the back of my right ring finger.



It took me a few hours to decide I ought to go to the hospital. It was such a tiny wound. I knew even a scratch could lead to rabies, but I kept thinking maybe I had scraped my finger on the sand-textured wall. What made me go to the hospital was the observation that the four little lines were symmetrical, like this: | '' |. That is the pattern of teeth. The wall might, by chance, produce such a symmetrical pattern, but that was much less likely. I felt silly going into the emergency room with such a tiny wound, especially when a moaning boy with gauze wrapped over his eyes came in. Later, I was in a room where the opthamalogist came in to get some equipment, and we talked for a moment. I asked what happened to that poor boy, and he said "I'm not at liberty ... someone poked him. He's going to need surgery."



I was apologetic when I arrived at the emergency room. I said things like "maybe I'm overreacting," but I also mentioned over and over again something I'd read in a Harper's Magazine Index about how many people die from rabies after they don't realize they've been bitten. In fact, as is usually the case, there were very few people using the emergency room at the University of Wisconsin Hospital. I was quickly seen by a nurse, then a doctor, then a second doctor. All three had me tell my elaborate story and expound my symmetry theory, and all three spent a lot of time puzzling over the wound. Doctor 1 thought maybe it was from the wall. Doctor 2 said it was my choice, but he'd get the treatment. He said, you could get 1000 bat bites and do nothing and nothing might happen, but considering that you would die if you bet wrong and the treatment, done now, is 100% effective, you should get the treatment. This puzzling over the wound process took three hours for some reason. Slow night? State law required them to call the police when an animal bites someone, and that call resulted in a long visit from police officer, who took pages of notes, apparently about how I caught the bat in a box and threw the box out the window and so forth.



Finally, I got the treatment. And the rabies shots, which were given in the arm, did not hurt any more than a tetanus shot. It did hurt to get one of the immunoglobulin shots that preceded the rabies shots, because it was injected at the site of the wound. It is damn hard to find a place to put anything in the middle of the back of a finger! But they did. Afterwards, I felt faint and they had me rest for another twenty-five minutes. At midnight, the nurse said "The witching hour," and I said "I'm going to turn into a bat."



The next day, when I came home from work, I found a legal notice posted on my door. It was a formal demand for me to surrender the animal that, according to a police report, had bitten a person. I had to call animal control and explain how I had thrown the bat, in a box, out of a three-story window. The person I talked to was very chatty, and I had a long interesting discussion about rabies and bats. She told me about Americans who get rabies shots before traveling to certain parts of the world where there is great danger of exposure and difficulty obtaining treatment. (The linked article notes that "rabies kills tens of thousands of people in Asia, Africa, and Latin America.")



Later, I was asked to come in and talk to two doctors at the UW Hospital who specialized in infectious disease research, and these two men also talked to me for a long time. I heard all sorts of stories about rabies. I asked if it was true that if you had the vaccination there is zero chance of getting the disease, and they told me that there are cases of people with very deep, tearing bites from wolves who still get the disease. The disease creeps slowly up through your nerves to your brain, and that time gives the vaccine a chance to work. But with the large wolf bites, the disease reaches the brain much too soon. In the cured case in Wisconsin, the treatment consisted of using drugs to induce a coma, to deliberately shut down the girl's brain while the disease passed through.



So, wonderfully, there is now hope for those who fail to get treatment, but it is much better, still, to go in for treatment, even for a tiny scratch. Once the symptoms appear, as in this recent case, it is too late to prevent the disease. The other thing I learned from my rabies experience was to catch a bat in a little plastic margarine container, with a snap-on lid, and take the bat in for testing. It wasn't that long after my experience, that I woke up one morning hearing that leathery flapping sound, and I tried to convince myself that I was still dreaming. Then I felt that leathery wing brush my hand, did some preparatory screaming, then got the margarine container and caught the bat against the window. I snapped on the lid and took it over to the animal testing lab. When I handed the container to the woman at the counter, she asked "How long has it been dead?" I said, "It's alive."



Not long after that, I spent $800 having the house bat-proofed. The bat proofing guy told me all the houses in my nicely wooded neighborhood probably had bats, unless efforts had been made to seal out the bats. I know he was in the business of providing that service, but based on my experience, I'd say get an older house bat-proofed. I haven't had a bat in the house since I did. I do still worry, though, when I hear a little noise in the night, and many times I've turned on the light to look around for a bat!



UPDATE: Let me add that awful as a bat in the house is, bats outdoors are perfectly excellent. Here's a bat conservation website. And here's a cool blog entirely devoted to bats.

Thanksgiving in NY/Madison.

Nina's in NYC for Thanksgiving, and she's got some relevant photos today, including "Kermit, still groggy after a year in seclusion." I'm jealous of her trip to the new MOMA--here, with photos, including one of a woman with a baby, which reminds me of how, back in 1981, I took my two week old baby way uptown to the Whitney Biennial, which I didn't want to miss, and felt guilty, because I was still skipping law school classes, having told myself I wasn't sufficiently recovered from my C-Section. That's how much I care about art museums.



I'm not so jealous of the ventures into food shopping in NYC, shown here at Balducci's, because Nina mentions that the Whole Foods in NYC has a one hour long checkout line! I just got back from the Madison Whole Foods, a mile down the street from my house. Granted, it was early, shortly after the 8 a.m. opening time, but I breezed though the beautiful place and did not have to wait in line at all. Two cheese attendants were ready to help me find things. And the meat guy not only got me that two-pound, securely tied, pork loin roast I needed, but he also offered an explanation for why the two-pounds looked so large (it has no bone, and muscle is lighter than bone, though fat is even lighter than muscle).



So, why did I rush out at 8 a.m. to buy a pork loin roast? After posting the previous entry, I worried that one or two of my Madison readers might suddenly decide they wanted the ultra-delicious arrosto di maiale al latte for Thanksgiving dinner too and would dash off to Whole Foods and get the last one. There were three luscious pork loin roasts there, and it was nice to get there so early and see the place almost empty of people but teeming with even more beautiful food than usual.



Speaking of loin, here's a bonus family story: When my sons were little, we often drove all the way to Florida to see my parents and my sister's family, and we always stopped to eat at Cracker Barrel restaurants. Three times a day, mealtimes were determined by the presence of a Cracker Barrel at an exit along the Interstate. Once, when Chris was pretty young, he tried to read the menu and cried out "Baby Lion Back Ribs! That's terrible!"

Doodle of the day.

Happy Thanksgiving. This was drawn some years ago in Paris, hence the big ashtray on the table. I don't recommend smoking for Thanksgiving. The Thanksgiving smoke--that's not a tradition, not for me anyway. But I do recommend a nice glass of wine, and whatever else you've decided to make.







I've decided to make arrosto di maiale al latte--pork loin braised in milk (which I know sounds horribly wrong from some religious perspectives). This is an old favorite recipe from Marcella Hazan's "Classic Italian Cookbook," which is by far my favorite cookbook. After cooking for two and a half hours, the milk is not at all recognizable as milk, but has become a delicious gravy.



I have not had this dish, which we used to make all the time, since 1989. I was just thinking yesterday about how much I love it and why I had not made it for so long. It took no time to remember the reason: the last time I sat down to eat it, I received a phone call and heard shocking news about my father. Shortly thereafter, my father died. Thanksgiving is a good time to gather with the family that you do have, but it can also make you think of the ones who have gone. Yet I didn't make a special Thanksgiving effort to think about my father. I was just running through my mental file of festive meat dishes and remembered that pork roast that became associated by chance so long ago with a sad memory. Nevertheless, it has been 15 years, and that pork roast was quite delicious. The moratorium is over.

Iconic character needed.

Yesterday, I said we need a character like Scrooge or the Grinch for Thanksgiving. And I mean I want an iconic character, a major, memorable character who embodies our hostility to Thanksgiving, through whom we can experience our antisocial feelings vicariously and who, in the story narrative, learns the true meaning of Thanksgiving so we can distance ourselves from our own unacceptable antagonism and feel good about ourselves in the end.



It's not enough to coin a term for a Thanksgiving hater. And it's not enough to say some character on some sitcom (e.g., "Friends") bellyached about Thanksgiving for whatever reason. People are always complaining about various things about Thanksgiving. In fact, one of the main things I don't like about Thanksgiving is having to listen to the same complaints every year: turkey makes you sleepy, it's dry, etc. I especially don't like hearing routine, flat statements about how your family members misbehave or are annoying. At least you have a family sizable enough to create an Thanksgiving-style crowd.

"Alexander" versus "The Aviator."

Oliver Stone's movie "Alexander" is getting such abysmal reviews that it can't all be chalked up to red-state homophobism. But if the movie weren't so horribly long and boring, it might be a laugh to see the Angelina Jolie performance. NYT meanie Manohla Dargis writes:

Mad of eye and teased of hair, Olympias, played with nose-flaring gusto by Angelina Jolie, was the mother of all monstrous mothers, a literal snake charmer whose love for her only son had the stench of incestuous passion and the tedium of the perpetual nag....

As the young marauder kills and enslaves peoples from Egypt to India, Mr. Stone repeatedly returns us to Olympias, snakes coiling around her body and chastising her absent son in a bewildering accent, part Yiddishe Mama, part Natasha of "Rocky and Bullwinkle" fame: "You don't write, you don't call, why don't you settle down with a nice Macedonian girl?" or words to that effect. Rarely since Joan Crawford rampaged through the B-movie sunset of her career has a female performer achieved such camp distinction.

Meanwhile, Roger Friedman of Fox News says Martin Scorsese's "The Aviator" "will not only be nominated for the Academy Award, but ... will win [it] without too much trouble." In a world where Oliver Stone has won an Oscar and Martin Scorsese has not, one last chance has come to restore justice and fairness, so that one day, we may hear that Martin Scorsese has won a Best Director Oscar.

UPDATE: Larry Ribstein points to one of the many older films that depict gay relationships. (Here's a great documentary on the subject of gay characters in films.) Ribstein writes:

The important point is Stone's reticence compared to a more than 30 year old film. Does this suggest, not that the public is not ready yet for gay relationships, but that a once-ready public is not so ready anymore?

First, as I've said before, I don't think Stone is displaying any reticence. He's just using current political issues to promote his movie and excuse its horrible badness. Second, he may show the relationship less graphically than this older film, but that doesn't say much at all about the culture then and now. He's crafting a hugely expensive Hollywood film that must bring in far, far greater crowds than an art film. Stone would like you to think people have gotten especially repressive and intolerant lately, but I am not buying it. Gay marriage is controversial, but it wasn't even mentioned thirty years ago. I'm quite sure that if it were, it would not have found a ready public. In fact, people are much more accepting of gay relationships now than they were then.

The "Seinfeld" DVD.

Somehow, I couldn't help buying the first "Seinfeld" DVD collection. I stopped by Borders for another purpose and there it was on one of the front tables, with an excellent price, so I picked it up. Once I decide to buy one thing, the chances of my buying any given other thing in at the store skyrocket. For some reason, I have no problem leaving with nothing, but I hate to buy just one thing. So if I'm going to buy one thing, it seems I have to find something else. Every other item near that item I've choosen suddenly becomes more desirable. Once I find the second item, I'm able to back off of this mania. It's basically an anything-but-one mania. Yesterday, what I picked up, from the same table, was "Eddie Izzard, Unrepeatable."



I sat down to read a few things for a while, because I had 20 minutes or so to kill before I needed to be at an appointment. A woman slumping in a chair near mine was reading "The Bush Survival Bible." She looked very glum. I tried not to let my get-over-it-already reaction show. The Democrats need to win new converts. How do they expect to do that as the Party of Deep Depression? And why mire yourself in books about your own oversensitive psyche? I thought the point of being on the left was your deep concern about other people. Sigh.



(I'd like to put in some Amazon/Borders links, but can't reach the site. Is Amazon down?)[UPDATE: Finally got through and have added links.]



So, the "Seinfeld" DVD. Seasons 1 & 2. That sounds like a lot, but it's just the first eighteen episodes. I watched the original pilot episode, with the written commentary on. These subtitles give you all sorts of trivia. It takes some doing to read this commentary and watch the show at the same time, clearly not the best way to savor the comic energy of the show, but there are lots of cool facts to absorb. Like: not only are they calling Kramer Kessler in this episode (because they haven't cleared the name Kramer with the real-life Kramer) but they considered calling Kramer Bennett. And: why Kramer had a dog just that one time. You can also get distracted trying to spot the 1 to 2 minutes of material that has been missing from each episode since its original airing. Unless you watch the DVD alone, there's sure to be a lot of talk in the room along the lines of: "Hey, that's it," "No, that's not it," "Yeah, I don't remember that," "Well, I do, that's not it."



This DVD collection makes a great Christmas gift, if you can avoid buying it now as a gift t0 yourself, as I did. If only I had one of those shrink-wrap re-wrappers and the will to resist blogging about the DVD, maybe I could have "re-gifted" this to one of my sons.

Doodle of the day.

Yesterday, I looked through a folder of class notes that I had kept since 1981, when I studied Federal Courts at NYU School of Law. I suppose I kept these notes (and not all my law school notes) because this was the first course I taught here at Wisconsin (where we call it "Federal Jurisdiction"). I've never referred to these notes, in my teaching preparations, but I've somehow always thought maybe I would. I still do!



There are 167 legal-pad pages of notes, written in black fountain pen. I'm shocked at how many topics we covered in that class, far more than I cover when I teach the course. How did we do it? A week of these notes is copied from someone else's: I had a baby on March 17th of that semester. That fell on spring break, luckily, but, having a C-section, it took another week to make my way back to school. Consequently, the Eleventh Amendment has always been a special mystery to me, but I have discovered over the years, that it is a bit of a mystery to everyone.



There are many marginal doodles in these 167 pages. Here's one:







UPDATE: An emailer writes:

I saw your doodle today and have to say that it looks like an individual contour from a contour map of steep terrain.



I used to be a mining engineer, and, to be more precise, would produce maps that estimate where mineral deposits would intersect the surface. Your doodle looks like a map that would be produced for such an investigation.



Its odd to see something so familiar in such an unusual venue. The unusual aspect is that the doodle looks like a mineral deposit that is dipping to the right where it intersects more surface than it does on the left. That your spacing would emulate this scenario surprised me. Of course you may have seen this type of map before.

Maybe I was a mining engineer in a previous lifetime. Spooky!



ANOTHER UPDATE: My email correspondent writes back:

Just checked your site and appreciate you including my comment. I probably didn't make myself clear but the previous doodle was the one I was referring too.



So if you get comments that my comments don't make sense, you should know that I was referring [this] doodle.



Since I work for NASA now, I'd have to say that the doodle the update is attached to looks more like a picture from the Hubble Space Telescope.

Well, that proves I didn't steal my ideas from mining engineering maps!

"The Eternal Sunshine of the Spotless Mind."

I didn't like this movie very much when I saw it in the theater, but I really enjoyed it at home on DVD, for some reason. The DVD has a couple deleted scenes and a nice interview with Jim Carrey and the director Michel Gondry. I went back and found my old post from when I saw the movie in the theater and was surprised to see that I wrote:

I prefer TV--including watching DVDs--because I don't like being stuck in the theater. Some things need to be seen on the big screen, but ES isn't one of them. It has a music video look that would do better on TV I think. There is a bluish pall over the whole thing, broken only by Kate Winslet's hair, orange sweatshirt, and a few other things. Okay, that's a color idea. I think color movies should have color ideas, but I think it is a video screen, not a movie screen idea.

Funny to read that! Before reading that, though, I had a big conversation about the difference between movies on TV and movies in the theater and what makes the experience so different. I was saying I have more patience at home, because I'm in control and I can pause it if I want, but that the theater can be good precisely because of the loss of control. Another thing I like about TV is that the frame is there, so you see the composition. And the picture is crisply rectangular. The theater screen has that ugly curve, which you're supposed to ignore, letting the big picture envelope you. Then, composition doesn't matter so much. But having the frame around the image can totally change the effect, greatly improving a well-shot movie (for me).

Christmas has Scrooge and the Grinch. What about Thanksgiving?

Isn't Thanksgiving more deserving of a naysayer? I mean, really, we eat dinner every day. Is it that for Thanksgiving--as opposed to Christmas--you are only asked to give thanks, not presents? To give thanks and eat dinner. But you must give thanks and eat dinner in a way that outdoes the thanks-giving and dinner-eating of other days. I do think there should be a Scrooge/Grinch analog. The Thankswithholder. The Ingrate.



UPDATE: Midwestern Mugwump suggests "Thanksgriper."



ALSO: More here.

Two polls on Bush.

The NYT/CBS poll, according to the headline, detects that "Americans Show Clear Concerns on Bush Agenda."



The CNN/USAToday/Gallup poll shows "Majority gives Bush good job approval marks."



Despite the headline, the NYT poll found:

[E]ven after this tense and vituperative campaign, 56 percent said they were generally optimistic about the next four years under Mr. Bush. Mr. Bush's job approval rating has now inched up to 51 percent, the highest it has been since March....



Across the board, the poll suggested that the outcome of the election reflected a determination by Americans that they trusted Mr. Bush more to protect them against future terrorist attacks - and that they liked him more than Mr. Kerry - rather than any kind of broad affirmation of his policies.

I like the way the NYT poll reexplored the question of support for "moral values" (which 22 percent of respondents called the most important issue on a well-publicized Election Day poll). In the Times poll:

[W]hen allowed freely to name the issue that was most important in their vote, 6 percent chose moral values, although smaller numbers named issues like abortion and same-sex marriage. On a separate question in which voters were given a choice of nine issues, 5 percent chose abortion, 4 percent chose stem cell research and 2 percent chose same-sex marriage.



The top issue was the economy and jobs, which was cited by 29 percent of respondents.

I didn't like the way the Times then went on to pad its article with material about the red state/blue state culture clash that it has been so wedded to since the election. If you've done a survey, talk about what the survey shows. I don't need the long quote from a Republican guy from Michigan and a Democratic guy from Georgia, especially when they seem to be selected to keep the big "moral values" issue going.

Distinguished diatribe.

The Wisconsin State Journal reports:

People who packed the Union Theater on Monday night expecting to hear about the best-selling book "Fast Food Nation" were instead served a diatribe from the author about his thoughts since the presidential election.



"Three weeks ago . . . I went into a real funk," said Eric Schlosser, author of bestsellers "Fast Food Nation" and "Reefer Madness."



"I really went into a depression. A really dark place."

A crowd of 1,100 had gathered to hear this lecture which was part of the university's distinguished lecture series.



UPDATE: Here's the coverage in the UW student newspapers the Badger Herald and the Daily Cardinal. Both of these articles make Schlosser's speech seem more coherent and focused (on the topic of legalizing marijuana). So who knows? I wasn't there and I don't have a text. Feel free to email me if you were there and can describe the lecture.

Doodle of the day.

Your shrinking brain.

So alcohol, it turns out, does not kill brain cells, according to the NYT. But a study associated back pain with brain shrinkage. And another study found brain shrinkage in obese women. I'm making a mental note to make an appointment with my chiropractor, to stop eating, and to worry even less (if such a thing is possible) about that glass of wine.

"The artful, undulant array of organ pipes captivated."

The NYT appreciates the pipe organ and the Overture Center that houses it, here in Madison.

Oliver Stone's new rant.

I have a new entry in my running account of Oliver Stone's attempts to prepare the American people for his grand opus "Alexander." This is Stone raving to the AP (the "thing" referred to is the movie):

"I started this thing before all this nightmare came down, this morass," Stone said of the Iraq war. "It's ironic, and I think there is a coincidence that's far beyond my understanding, but I would certainly not limit this to the current situation. This is an older situation, East vs. West. This is pre-Muslim, and there was always a conflict between Persian and Greek."

So you got the idea to make the movie, and then world events caught up with you, you brilliant, prescient man!

"Alexander was beautiful because he saw beyond that conflict into a synthesis," Stone added. "I'm not so sure our present administration does. It's great that they say, `Democracy, blah, blah, blah,' but you have to modify democracy to the local customs."



Even though the world has changed dozens of times over since Alexander's days - which predated Jesus Christ and Mohammed - lessons in ancient history remain for modern people.



"And what is the lesson?" Stone asked. "Alexander brought the Hellenic way which is, let's say, more freedom for the individual. He abided by the customs of, unlike our administration, of leaving the (opposing) armies intact and used the armies. He always needed more men."



After Saddam Hussein was toppled, the United States disbanded the Iraqi army instead of incorporating those not loyal to Saddam as a police force, a move criticized as making it more difficult to fight anti-U.S. guerrillas.



"(Alexander) was always inclusive, and we were exactly the opposite when we went into Iraq. We were totally exclusive. ... You could argue the policy was malformed from the beginning, misintended."



Stone said he considers that an error in strategy and has no interest in bashing the president.



"I would not put Bush down..." Stone said.

No, no, of course you wouldn't. You're just offering some military advice. Great. Thanks. That was really a very useful explanation how Bush can become "beautiful" by seeing "beyond that conflict into a synthesis."



UPDATE: Film critic Richard Roeper makes fun of the movie:

A group of Greek lawyers has threatened to file a lawsuit against Warner Bros. and Oliver Stone "for suggesting Alexander the Great was bisexual," as the National Post put it....



Having seen the film, I can categorically state that Stone does not in any way suggest Alexander was bisexual.



He suggests Alexander was absolutely, fabulously gay.

ANOTHER UPDATE: If you've come here from a link where I was characterized as part of a big Them that has a Plan to do something or other, I would encourage you to read around on my blog, including following the link that appears in the first sentence of this post to my earlier, much more substantive statements about the film "Alexander." I would encourage you to judge for yourself whether it makes much sense to characterize me as part of a politico-cultural scheme.

Christo.

Drudge is linking to this AP story headlined "Christo to Wrap Central Park in Fabric." Look at Christo's beautiful web page explaining this brilliant project. He's not wrapping anything! He sometimes has wrapped things, but this is not a case of wrapping. These are flowing, flapping hangings! You might enjoy reading Christo's "Most Common Errors" page. I've blogged about Christo before here and here.