Patterico's Pontifications

5/7/2010

Quick Chat on Intentionalism

Filed under: General — Patterico @ 11:02 pm

I’m holding a quick chat on the topic here.

Leviticus and Entropy may be the only people awake who want to discuss the topic, but the window is open right now.

UPDATE: It’s over. I am posting the transcript below:

In the Best of Economic Hands

Filed under: Economics,Obama,Politics — DRJ @ 10:31 pm

[Guest post by DRJ]

Homeland Security Secretary Janet Napolitano and others initially jumped to conclusions when the underwear bomber and New York car bomber attacked, saying the incidents were probably lone wolves and not terrorism. President Obama also jumped to a conclusion when he said the Cambridge Police Department “acted stupidly” in arresting Harvard Professor Henry Louis “Skip” Gates, Jr.

So it’s somewhat surprising that the White House won’t rule out sabotage in Thursday’s 1,000 point stock market drop. Instead, they’re keeping an open mind about Thursday’s drop:

“President Barack Obama has not ruled out sabotage in the near-panic on Wall Street Thursday afternoon.

White House press secretary Robert Gibbs said Obama’s economic team was jolted by the news and met with Obama shortly after the market plunged.

The president announced Friday morning that a full review is being conducted, and Gibbs said Obama is waiting to hear the results of a review before ruling out what might have caused it, including the possibility of sabotage.

“I wouldn’t rule anything in or rule anything out,” Gibbs told reporters in his West Wing office Friday. “I think that’s, appropriately, why they’re reviewing what may or may not have happened.”

It’s not reassuring that the famously calm, cool Obama has an economic team that can be “jolted” by the stock market, especially since Obama told us last year that the “gyrations” of the stock market are no more important than a transitory political tracking poll:

“President Obama urged Americans not to read too much into the day-to-day fluctuations of the stock market, comparing it to a daily tracking poll and saying a broader view is needed before jumping to conclusions about his economic plans.

“I’m looking at is not the day-to-day gyrations of the stock market, but the long-term ability for the United States and the entire world economy to regain its footing,” Obama said in the Oval Office after a meeting with British Prime Minister Gordon Brown. “The stock market is sort of like a tracking poll in politics. It bobs up and down day to day, and if you spend all your time worrying about that, then you’re probably going to get the long-term strategy wrong.”

At least they’re practicing at keeping an open mind now. Someday they may even try it with Republicans and Tea Partiers.

— DRJ

Russian Quotes of the Day

Filed under: International,War — DRJ @ 8:45 pm

[Guest post by DRJ]

In a raid to recover a Russian oil tanker seized by Somali pirates, a Russian warship recently killed 1 and captured 10 pirates. Now the Russian government has released the pirates, possibly because The Law of the Seas Convention could prevent Russia from deporting the captured pirates once they have served any sentences.

Russian Colonel Alexei Kuznetsov described their release as due to “imperfections” in international law, but he and President Medvedev also offered these more colorful descriptions:

“Colonel Kuznetsov appeared to echo those concerns when asked why the pirates who seized the tanker were released.

“Why should we feed some pirates?” he said.

Dmitry Medvedev, Russian President had yesterday hinted at possible tough punishments for the pirates taken in the troubled waters off the coast of Somalia.

“Perhaps we should get back to the idea of establishing an international court and other legal tools to prosecute pirates,” he said.

“Until then, we’ll have to do what our forefathers did when they met the pirates.”

Russians might do well on International Talk Like a Pirate Day.

— DRJ

School Suspensions [and Detentions]

Filed under: Education — DRJ @ 8:20 pm

[Guest post by DRJ]

Hot Air is talking about the muddled report that a Houston high school student was suspended for taking down a Mexican flag. I’d rather talk about the Houston-area third grader who received a week-long suspension detention from recess and lunch for having a Jolly Rancher:

“Leighann Adair, 10, was eating lunch Monday when a teacher confiscated the candy. Her parents said she was in tears when she arrived home later that afternoon and handed them the detention notice.

According to the disciplinary referral, she would be separated from other students during lunch and recess through Friday.

Jack Ellis, the superintendent for Brazos Independent School District, declined an on-camera interview. But he said the school was abiding by a state guideline that banned “minimal nutrition” foods.

“Whether or not I agree with the guidelines, we have to follow the rules,” he said.

The state, however, gives each school discretion over how to enforce the policy. Ellis said school officials had decided a stricter punishment was necessary after lesser penalties failed to serve as a deterrent.”

Unfortunately, the lesson Leighann’s Mom learned — and told her child — is that this shows life isn’t fair. Time-out for Mom.

Finally, the Houston Press notes this isn’t the only Jolly Rancher story in the news. What’s up with Jolly Ranchers?

— DRJ

“Do Your Job and Secure the Border”

Filed under: Immigration,Obama — DRJ @ 8:10 pm

[Guest post by DRJ]

Allahpundit calls it brutal. I call it brutally true:

— DRJ

Why Intentionalism Cannot Determine Legal Interpretation — And Why It Matters

Filed under: General — Patterico @ 7:24 pm

I started composing a long point-by-point rebuttal to Jeff Goldstein’s latest post on intentionalism in legal interpretation, but I have decided to move that to its own page and cut to the chase. Let me instead explain my position, as simply as I know how, and why it matters.

Simply put, let’s say you accept everything the intentionalists say about the meaning of language, in theory. It still doesn’t tell you anything about how to make real-life decisions about how a judge should rule when litigants disagree in their interpretations of legal language.

Take the situation I discussed this morning, where a thief is trying to defraud a buyer who is trying to purchase a diamond ring. We can discuss all day long what the thief meant when he said this phrase or that phrase — but in the end, who cares? We’re still not going to let him get away with defrauding the buyer.

And so, it may be a wonderful intellectual exercise to discuss what the thief “meant” when he offered to sell “this diamond ring.” But the results of that intellectual exercise have absolutely nothing to do with how a judge should rule on the question when someone presents the contract to him. All the judge cares about is: “what do the terms of the contract say?”* and “did the buyer have any reason to think the seller was selling a lump of coal?” and “did the seller have any reason to know the buyer thought he was buying a diamond ring?”

And so if the contract was for the sale of a “diamond ring” and the buyer had no reason to believe he was buying a lump of coal, and the seller knew the buyer thought he was buying a real diamond ring, the judge is not going to let the seller get away with saying “I meant to refer to this lump of coal” — even if he is telling the truth.

Because, for the judge’s purpose, he doesn’t care what the seller meant if it was different from what the seller meant to convey.

Things get even uglier when you’re talking about legislative intent, because you’re looking at the intent of a body of people who might not even have an intent — other than “I am voting this way to get re-elected.” Most of these clowns haven’t even read the words that their intent is supposedly so critical to interpreting. Some legislators’ intent is going to be at odds with others’. Some will have traded favors or spent political capital negotiating a change to the text — and it is the height of insanity to tell such people that their negotiated TEXTUAL modifications are null and void because a majority of legislators happens to unreasonably read that same text in a way different than most reasonable people would.

And so the point boils down to this: to the intentionalist, the meaning of words written on a page is wholly determined by what the writer intended them to mean. But in the real world, when a judge has to decide how those words are going to be ENFORCED, he is going to start with the text — and he may very well end with the text. If he is looking at a contract where the seller is a scam artist, he won’t really care what the seller subjectively intended to sell. And if he is looking at statutory language, then — like Justice Scalia — he may not give a rat’s ass what the legislators subjectively intended.

That Scalia believes this does not mean he does not understand what he is actually doing, as Goldstein has argued. Instead, Scalia, the Harvard Law grad, renowned Supreme Court Justice, and author of a book on interpretation, presumably is fully aware of what he is doing. He just happens to disagree with the intentionalists when it comes to legal interpretation.

As do I.

*Goldstein, of course, argues that a contract can’t “say” anything on its own, and that the words of the contract only have meaning when a speaker imbues them with that meaning. This abstract argument aside, I am confident that the average reader understands what I mean when I use the phrase “what do the terms of the contract say?”

P.S. If you’re still interested in the point-by-point response to Goldstein’s post, it’s here.

P.P.S. As with all these intentionalism posts, I am instituting my strict no-attacks and no-ugliness rule. Let the arguments fly; keep the insults to yourselves.

When Reporters Shield Their Sources

Filed under: Government,Media Bias — DRJ @ 5:39 pm

[Guest post by DRJ]

At PowerLine, Scott Johnson posts on the aftermath of the New York Times’ Bush-era exposes of the NSA and SWIFT programs that were based on anonymous leaks. One of the Times’ reporters, James Risen, published a book on these and other topics. Chapter 9 dealt with CIA efforts to disrupt the Iranian nuclear research and Attorney General Eric H. Holder, Jr., has subpoenaed Risen regarding those revelations. Risen is resisting the subpoena, citing the confidentiality he owes as a reporter to his source or sources.

Johnson links a Washington Post guest post by Gabriel Schoenfeld regarding Risen’s obligation as a citizen to reveal his sources:

James Risen has an obligation as a citizen to tell a grand jury who provided him with classified information that may have severely damaged our ability to deal with Iran’s nuclear program. This obligation has not deterred voices in and around the press from justifying both the leaking and the publishing of the leaked materials. Risen himself calls his anonymous sources “heroes.” Others, striking a tone of outrage, profess to see no public purpose served by government secrecy in this critical realm: “The message [the Obama administration is sending] to everyone is, ‘You leak to the media, we will get you,’ ” is what Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, complained to The Washington Post. “We had thought that the Obama administration would be different,” writes Times columnist Nicholas Kristof, “a little less likely to want to menace and jail journalists… I find this utterly disappointing.”

But what is utterly disappointing — yet not in the least surprising if one is familiar with the exalted status members of the press like to confer on themselves–is not the subpoena issued to Risen. Rather, it is the assumption held by Nicholas Kristof and many others in the news business that journalists are exempt from the fundamental obligations of citizenship. If James Risen keeps his silence and is held in contempt of court and then sent to jail, that will certainly provoke howls of outrage in the press. It will also be a just outcome, for no one is above the law.”

These incidents are not novel or unusual. For instance, recently Beldar commented hypothetically regarding what might happen in the Faisal Shahzad case if a law enforcement officer leaked information to reporters about Shahzad’s location:

Being a journalist doesn’t immunize anyone from the consequences of criminal laws. The “shield” is an extremely narrow qualified privilege, and the nature of the privilege is the ability to protect the identity of a confidential source by being exempted from testifying about that particular subject. As a qualified privilege, it can be overcome — ask Judith Miller, or rather, the D.C. Circuit judges who affirmed her contempt sentence to jail — upon a proper showing by the government (basically that the info is really important and there’s no other way to get it). So nothing in the reporter’s shield law says if the reporter breaks a criminal statute, he gets a free pass because he’s a reporter.

Leaking this kind of national security information is certainly a dischargeable offense for any law enforcement officer, and I would be very surprised if it weren’t also a violation of the federal criminal laws. If Obama were serious about national security, he would set about exhausting all other potential sources in order to identify and prosecute the leakers. If no other sources could accomplish that, then it would be time to put the journalist who was tipped to the real hideout location on the witness stand to identify his source, the presumed leaker.”

The Pentagon Papers introduced America to the notion that reporters can expose national secrets. Watergate reinforced that as something exciting, romantic, and a career-builder. But there are and should be consequences to exposing national secrets. In their zeal to break the big story, that’s something reporters have apparently forgotten.

— DRJ

The Dow Free Fall

Filed under: Economics — DRJ @ 4:05 pm

[Guest post by DRJ]

Yesterday the Dow tumbled One Trillion Dollars but they still aren’t sure what triggered the free fall:

“The day after $1,000bn was briefly wiped off the market value of US equities, traders were still trying to work out what caused share prices to plunge and then rebound so dramatically in a matter of minutes.

The conventional wisdom held that an incorrectly typed sell order – one that confused “billions” for “millions”, for example – was the likely culprit.

“The trigger for the sell-off was most likely some kind of errant order, a fat-finger typo, which set off a chain reaction of selling,” said Sang Lee, managing principal at Aite Group. “I would be shocked if that was not the case as the fall in stocks was so sudden and extreme.”

However, despite the persistence of this story, officials were struggling to idenfity a specific cause. “We still don’t know what was the initiating signal for the trading activity we saw on Thursday,” said Jeff Wecker, chief executive officer at Lime Brokerage. “The verdict is still out.”

Whatever the trigger, programmed trading had to be what drove the fall so rapidly:

“When the plunge came, traders said it was exacerbated by the rapid-fire computer systems that post prices and execute trades in microseconds. Such trading accounts for the bulk of volume in US equity markets and it served to reinforce a downward move that saw some stocks trade for a penny or less.

Because computers also serve to link markets, the panic spread to currencies and bonds. The yen soared in value against the dollar and the euro. The demand for government debt, a traditional haven during a crisis, soared, pushing the yield on 10-year US Treasury bonds sharply lower.”

The Financial Times summarized it as “trading gone wild” and a trader said: “We have detached finance from the real economy and created a monster.”

— DRJ

BP Close to Positioning Container

Filed under: Environment — DRJ @ 2:35 pm

[Guest post by DRJ]

Using robots controlled by joysticks, workers are within 200 feet of positioning a 100-ton container over an oil leak at the Deepwater Horizon wellsite:

“A spokesman for oil giant BP PLC, which is in charge of the cleanup, said the box was suspended about 200 feet above the main leak Friday and was being moved into position, though it could be Saturday before that happens.

Several undersea cameras attached to the robots were making sure it was properly aligned before it plunged all the way to the bottom.

“We are essentially taking a four-story building and lowering it 5,000 feet and setting it on the head of a pin,” Bill Salvin, the BP spokesman, told The Associated Press.

If the device works, it could be collecting as much as 85 percent of the oil spewing into the Gulf and funneling it up to a tanker by Sunday. It’s never been tried so far below the surface, where the water pressure is enough to crush a submarine.”

They estimate the well is producing 200,000 gallons a day. If all goes as planned, the oil should rise through the container and into a steel pipe. At that point, I assume it will be sent to a separator and deposited into a storage tank or tanker. Reports indicate the procedure has gone smoothly but it hasn’t been easy:

“Out at sea, the crew of the semi-submersible drilling vessel Helix Q4000 waited hours longer than expected to hoist the containment device from the deck of the Joe Griffin supply boat because dangerous fumes rose from the oily water. Joe Griffin Capt. Demi Shaffer told an Associated Press reporter aboard his boat the fear was that a spark caused by the scrape of metal on metal could cause a fire. Crew members wore respirators while they worked.”

The conditions for the workers on the relief well must be the same. Imagine working with massive, dangerous equipment in fumes that require respirators and on a slick surface coated with inches of combustible oil. I don’t know if this will work but I’m impressed with the engineering skills and the fortitude of the people involved.

— DRJ

NBC’s Brian Williams: “The world has no money and the emperor has no clothes.”

Filed under: General — Karl @ 10:34 am

[Posted by Karl]

Last night, NBC Nightly News anchor Brian Williams talked to Dave Letterman about yesterday’s mini-plunge on Wall Street:

Williams noted the reports that attributed the afternoon free-fall to trader error and program trading, but correctly added that these were only the sparks to a larger pile of dry tinder. Traders were glued to the televised rioting in Greece over that country’s debt crisis, which may be followed by similar crises in countries like Spain and Portugal.

The establishment press, including USA Today and even the Los Angeles Times, are waking up to the fact that America’s unsustainable entitlement programs and bloated public employee pensions put us on the path to the sort of fiscal crisis we see in Europe today. Indeed, we are far closer to Greece’s spending levels than many think, though our demographics are less disastrous.

As Williams ultimately put it (quoting Neil Cavuto), “the dirty little secret is: the world has no money and the emperor has no clothes.” To paraphrase Margaret Thatcher, “the problem with socialism is that eventually you run out of other people’s money.” If European street riots — and their impact on our markets — bring this point home to someone like Williams (who left college to work for Pres. Jimmy Carter), it’s a good sign for the Republic. Sadly, Williams has yet to identify the Naked Emperor, but HOPE springs eternal.

–Karl

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