Angela Merkel warned earlier this week that Germany will bail out the rest of the EU over her dead body. A Citadel CEO and University of Chicago economist argue today in the N.Y. Times that the solution to the Eurozone problem is not for Greece to abandon the Euro, but for Germany to do so.
I've often confessed here that monetary theory confuses me. People act as though currency were a magic wand. I see it as a kind of promise, and therefore something that's incompatible, long-term, with lying. The proposal for Germany to re-introduce the Deutschmark at least has the advantage of uniting words and reality in the combination we often describe as "honesty."
Obamacare lives
Roberts is no judicial activist, I'll give him that.
What a disappointing week. Well, I suppose the lesson is the usual one: some of the these problems have to be solved with the ballot box, not with the courts.
Update: It's a 5-4 decision, with Chief Justice Roberts joining Justices Ginsberg, Breyer, Kagan, and Sotomayor in construing the individual mandate as a tax rather than a penalty for Constitutional purposes. (It's still treated as a "penalty" for purposes of the Anti-Injunction Act; if it had been a tax for that purpose, the Court could not have heard the case.) The Court rejected the attempt to justify the mandate as an exercise of either the Commerce Clause or the Necessary and Proper Clause, stating that the Commerce Clause cannot regulate passive non-behavior. Instead, it's simply a tax imposed on people who decline to buy insurance. The penalty is not so harsh as to constitute an absolute prohibition of the decision to go bare.
The Court struck down the portion of Obamacare that funds an expansion of Medicaid, but threatens states with the loss of all of their traditional Medicaid funding if they opt out of the expansion. As it stands, therefore, states will have a free choice whether to participate in the expanded Medicaid system.
What a disappointing week. Well, I suppose the lesson is the usual one: some of the these problems have to be solved with the ballot box, not with the courts.
Update: It's a 5-4 decision, with Chief Justice Roberts joining Justices Ginsberg, Breyer, Kagan, and Sotomayor in construing the individual mandate as a tax rather than a penalty for Constitutional purposes. (It's still treated as a "penalty" for purposes of the Anti-Injunction Act; if it had been a tax for that purpose, the Court could not have heard the case.) The Court rejected the attempt to justify the mandate as an exercise of either the Commerce Clause or the Necessary and Proper Clause, stating that the Commerce Clause cannot regulate passive non-behavior. Instead, it's simply a tax imposed on people who decline to buy insurance. The penalty is not so harsh as to constitute an absolute prohibition of the decision to go bare.
The Court struck down the portion of Obamacare that funds an expansion of Medicaid, but threatens states with the loss of all of their traditional Medicaid funding if they opt out of the expansion. As it stands, therefore, states will have a free choice whether to participate in the expanded Medicaid system.
A Dissent from Hume
As part of a discussion on another subject in the company of
a bunch
of Villains (that post and its extensive discussion are well worth reading
in their own right), Grim pointed out a David Hume claim known today as Hume's Guillotine,
or the is-ought problem. The link,
provided by Grim, presents a good summary of the question; it's also laid out,
of course, in Part III, Section 1, "Moral Distinctions Not Derived from
Reason," of Hume's A Treatise of
Human Nature. Grim asked what I
thought of the matter.
The short answer is that Hume was wrong.
This post attempts to show how.
The salient parts of Hume's argument, as concerns this post,
are these:
He states his problem:
Now as perceptions resolve themselves into two kinds, viz. impressions and ideas, this distinction gives rise to a question, with which we shall open up our present enquiry concerning morals. WHETHER IT IS BY MEANS OF OUR IDEAS OR IMPRESSIONS WE DISTINGUISH BETWIXT VICE AND VIRTUE, AND PRONOUNCE AN ACTION BLAMEABLE OR PRAISEWORTHY? … In order, therefore, to judge of these systems, we need only consider, whether it be possible, from reason alone, to distinguish betwixt moral good and evil, or whether there must concur some other principles to enable us to make that distinction.
Hume then makes this claim:
Since morals, therefore, have an influence on the actions and affections [through opinions of injustice or through a sense of obligation], it follows, that they cannot be derived from reason; and that because reason alone, as we have already proved, can never have any such influence. Morals excite passions, and produce or prevent actions. Reason itself is utterly impotent in this particular. The rules of morality, therefore, are not conclusions of our reason.
Hume notes, of Reason:
Reason is the discovery of truth or falsehood. Truth or falsehood consists in an agreement or disagreement either to the real relations of ideas, or to real existence and matter of fact. Whatever, therefore, is not susceptible of this agreement or disagreement, is incapable of being true or false, and can never be an object of our reason.
with this about morals:
Now it is evident our passions, volitions, and actions, are not susceptible of any such agreement or disagreement; being original facts and realities, compleat in themselves, and implying no reference to other passions, volitions, and actions. It is impossible, therefore, they can be pronounced true or false, and be either contrary or conformable to reason.
An administrivium: Hume makes a distinction between Reason
and moral, identifying the moral as a passion.
For this post, I'll write about rational reason(ing) for Reason and
moral reason(ing) for the moral.
Hume's proposition, itself, flows from a false
dichotomy. Our reasoning and moral
capacities are gifts from God—indeed, they are the same gift. The split between them is a wholly
human-originated partition, which we generate strictly for the purpose of
better understanding the gift. Thus,
rational and moral reasoning begin (its) existence in us, not just inextricably
intertwined, but as one and the same. We
can move between them as easily as we can move from our front yard to our
back.
With regard to a part of the second above, concerning the
claimed inability for rational reasoning to motivate behavior, this also is
wrong. Consider a game of poker (which,
when I was actively playing it had no relation with gambling whatsoever). A coldly objective—rationally reasoned—assessment
of my hand, of the hands of my fellow players, of their betting histories, and
so on, takes me to executing a behavior: fold, call, or bet, with a subset
under betting of adjusting the size of these bets. Each of these behaviors is originally
motivated by a reasoned assessment the data at hand; moral reasoning has not
entered into it at all. A couple more
examples: a man has a pistol and confronts a home invader who holds a weapon to
the man's wife, threatening to her unless the man complies with a demand. This is a highly emotionally charged
situation, yet the man can—and a trained man does—observe the factors, sees the
wife does not cover very much of the home invader, the range is short, the
invader's weapon is not an immediately lethal one (a knife, perhaps, or the
finger is not on the trigger), assesses his own marksmanship, and makes a
decision to take his shot—or not. Rational
reasoning has determined the shot; rational reasoning has motivated the action
of shooting or holding fire. So it is in
another wholly unemotional—dispassionate—activity, like driving: an action of taking
this route, or that one, based on the purpose of the trip and the relative
efficiencies of the two routes. Rational
reasoning determines the action of the choosing of the route and spurs the
driver to act on the choice.
In the fourth above, concerning morals, his claim is internally
contradictory. If we can say that a
passion, a moral, is originally true,
originally a fact, then we have...in fact…identified it so. While we have not identified a falsifiable
alternative, we have identified a truth, a fact. This, comports with rational reasoning: a
truth has been discovered. In this case
of origin, that a falsehood is not present to be discovered in no way
invalidates the rationally reasoned discovery of the original truth. A agreement or disagreement (the third above)
is simply the agreement/disagreement that this discovery is an original fact. Of course, a first principle—an original fact—cannot
be proved from within its own logical system, but if Hume is correct, rational
reasoning is separate from moral reasoning, and it is this separate logical system
that has discovered the original fact—from without that other system.
Moreover, if the moral is always, of origin, true—a true
fact, as it were—and rational reasoning can distinguish between the true and
the false, then it is eminently possible for rational reasoning to recognize
the moral, when it recognizes a particular truth. Nor does rational reasoning need to be a
(the) source of good or evil, as Hume decries it for not being: it need only be
able to recognize the two and distinguish between them—as it does with any
truth or falsehood.
Hume also proceeds from a minor false dichotomy: that it is
"possible, from reason alone..." or "…whether there must concur
some other principles…." Yet this
is not an either/or proposition; both can be in play. Moral vice and virtue—morality—can be
discerned through rational reasoning, but doing so does not preclude the same
distinction by moral reasoning: that is, a virtuous end can be developed by
rational reason, and that same virtuous end can be developed by moral
reason. In short, we can, from rational reason
alone, distinguish betwixt moral good and evil, and we can make the same
distinction from moral reasoning, also. And,
just to dot the i and cross the t, rational reasoning remains fully capable of
discerning non-moral truths and falsehoods, as well. A couple of examples from our Founding will
illustrate.
A rational reasoning argument for an economic exchange between
free men that improves both men's well-being might go something like this. Each man has something of value that the
other wants. The two freely and of their
own volition agree on a medium of exchange and a value of the objects desired,
and they execute the exchange. As a
result of that exchange, both men are better off: both have gained something of
value that they did not have before, and neither has not given up anything of
greater value in order to realize the gain.
But this is a free market.
A moral reasoning argument for an economic exchange between
free men (keeping in mind the free will He has imbued in us), equal in the eyes
of God, might go something like this. Each
man has something of value that the other wants. The two freely agree on a medium of exchange
and a value of the objects desired, and they execute the exchange. Neither man has gained dominion over the other
as a result of the exchange, and neither man has used dominion to force the other
into an exchange to which he would not otherwise have agreed. As a result of that exchange, both men are
better off: both have gained something of value that they did not have before,
and neither has not given up anything of greater value in order to realize the
gain. But this is a free market. And in both free markets, the increased
well-being of the two men has facilitated their ability to satisfy other moral
obligations: they have, for instance, more wherewithal with which to help those
less fortunate than they.
The other example concerns a type of government. A rational reasoning argument for a
government suited to preserving the freedom of men, vis., the freedom of exchange economy described above might go
something like this. What sort of
government will best preserve that sort of free market economy? One such is a government that leaves the
people sovereign over that government, easily able to draw the government back
when it becomes too overreaching. This
would include, especially for large populations, an electively-oriented
representative sort of government at a local level, and groupings of these
local governments into a larger, still electively-oriented, representative
government at a national level, where the power of the sovereign people is
preserved, and so is the power of their more-or-less local governing jurisdictions. With another little fillip: divide the
government into equal, competing sections so as to make it yet harder for that national
government to accrete power to itself.
But this is, roughly, a republican government.
A moral reasoning argument for a government suited to
preventing some men from gaining dominion over the rest—and so of preserving
the morally-derived free economy described above—might go something like
this. What sort of government preserves
the essential equality of men before God?
One sort is a government that leaves the people sovereign over that
government, and so directly responsible for their own behavior, rather than surrendering
that obligation to another—rather than ceding dominion to the men populating
that government. This would include,
especially for large populations, an electively-oriented representative sort of
government at a local level, and groupings of these local governments into a
larger, still electively-oriented, representative government at a national
level, where the power of the sovereign people is preserved, and so is the
power of their more-or-less local governing jurisdictions. With another little fillip: divide the
government into equal, competing sections so as to make it yet harder for that national
government to gain dominion. The men of
the governments at any level are thus prevented from gaining dominion over
those whom they purport to represent. But
this is, roughly, a republican government.
With these two examples, we see that rational reasoning and
moral reasoning arrive at the same Reason and moral truths. Having achieved the crossover between Reason
and moral at both endpoints, it's easy to see that the crossover can occur at
any other place in the chain, as well.
Eric Hines
"Selfishness as Virtue"
Such is the title of an excellent article from The American Interest, which addresses the change of focus in American society to the fulfillment of the individual. I won't excerpt it, although I'm inclined to do so, because it's worth reading from front to back.
A question that might open the discussion is whether "selfishness" is the right word. The author of the article prefers it; the sociologist he is critiquing prefers "the virtues of living lightly." Is "living lightly" in this sense an actual virtue?
A question that might open the discussion is whether "selfishness" is the right word. The author of the article prefers it; the sociologist he is critiquing prefers "the virtues of living lightly." Is "living lightly" in this sense an actual virtue?
Nazi Concentration Camps, After the Nazis
Via the Chronicle of Higher Education, a history lesson.
[I]t took place by order of the United States and Britain as well as the Soviet Union, nearly two years after the declaration of peace. Between 1945 and 1950, Europe witnessed the largest episode of forced migration, and perhaps the single greatest movement of population, in human history. Between 12 million and 14 million German-speaking civilians—the overwhelming majority of whom were women, old people, and children under 16—were forcibly ejected from their places of birth in Czechoslovakia, Hungary, Romania, Yugoslavia, and what are today the western districts of Poland. As The New York Times noted in December 1945, the number of people the Allies proposed to transfer in just a few months was about the same as the total number of all the immigrants admitted to the United States since the beginning of the 20th century. They were deposited among the ruins of Allied-occupied Germany to fend for themselves as best they could. The number who died as a result of starvation, disease, beatings, or outright execution is unknown, but conservative estimates suggest that at least 500,000 people lost their lives in the course of the operation.
Most disturbingly of all, tens of thousands perished as a result of ill treatment while being used as slave labor (or, in the Allies' cynical formulation, "reparations in kind") in a vast network of camps extending across central and southeastern Europe—many of which, like Auschwitz I and Theresienstadt, were former German concentration camps kept in operation for years after the war.Emphasis added. Read the rest. The Chronicle is a respectable publication: you may trust, though you may not like, what you read.
Arizona immigration law mostly gutted
I'm seeing this decision described some places as one supporting "key" provisions of the state law, but as far as I can tell, the Supreme Court found that the strongest portions of it were impermissible invasions of federal prerogatives by state law. The police can still check the immigration status of someone they're detaining on other grounds, but they can't do much about it -- that's still left to the feds, who have decided not to do anything about it.
...And At the Other End
A retired gentleman saves a lady from a mugger, just down in Athens, Georgia. Turns out the attacker was armed, but lacked the guts to go for his gun in the face of resistance. Like many a criminal, he armed himself to make himself even stronger against the weak -- not to face the strong.
Way to go, son
A 14-year-old takes good care of his siblings, 8, 10, and 12. Someone in the article comments that they're not sure whether the boy had been trained in the use of his father's gun. I don't know: Assuming they're talking about a handgun, that's a pretty good shot under stress from the top of a staircase.
Loose Talk
Allahpundit at Hot Air loves to twig his predominantly-believer readership with periodic atheist headlines. Here's the latest, which is nothing new for us.
For that matter, where are they now? In the same place as before the creation of the universe -- that thing that metaphysically prior to every place, as we usually use the term?
Or should we say that the laws are in every place? That makes no sense, because they must have existed prior (again, for Joe, in the metaphysical sense) to creation: creation was enabled by their existence. Thus, they can't exist in 'every place' in the ordinary sense of the word -- indeed, they can't exist in any place in that sense, as the laws are prior to the places.
But what sense does it make to say that the laws exist in no place? How do you have laws with universal effects in every place, if the laws exist in no place?
It seems you have to say that they belong to the thing. Which thing? The thing that is the field of action in which the universe came to be, and within which it is sustained. That is to say that this universal container is a thing that has a nature: a nature in exactly the terms Aristotle offered in Physics II, when he defined nature as when a thing has "within itself a principle of motion and of stationariness." That's exactly what we want this thing to have: a principle internal to itself that defines how motion operates. (We tend to dispense with 'stationariness' in modern and contemporary physics).
Because this thing is the container for our universe, its internal principle is a safe location for the laws of physics to be written. They can exercise both the creative function he wants, and the universality we seem to observe.
That's an answer to the question of where the laws are located. It's located in a thing that has no place, because it is the container of every place. The existence of this container is certain, as is the fact that it must have a nature.
Thus, we don't have to stop with "A" because "A" was caused by a "B" with an unknowable cause "C." We may stop with "A" as a matter of science, but we can rely on the existence of "B" as a matter of logic. As to C, well, that's just where I differ with the good astrophysicist. Rather than wishing to stop at the last safe place before risking that escalation, from my perspective, that's just where it begins to get interesting.
"The Big Bang could've occurred as a result of just the laws of physics being there," said astrophysicist Alex Filippenko of the University of California, Berkeley. "With the laws of physics, you can get universes."...
"The 'divine spark' was whatever produced the laws of physics," Filippenko said. "And I don't know what produced that divine spark. So let's just leave it at the laws of physics."Just being "there"? That's a fairly loose way of speaking. Where exactly were the laws of physics before the creation of the universe? What is this "there" where they were?
For that matter, where are they now? In the same place as before the creation of the universe -- that thing that metaphysically prior to every place, as we usually use the term?
Or should we say that the laws are in every place? That makes no sense, because they must have existed prior (again, for Joe, in the metaphysical sense) to creation: creation was enabled by their existence. Thus, they can't exist in 'every place' in the ordinary sense of the word -- indeed, they can't exist in any place in that sense, as the laws are prior to the places.
But what sense does it make to say that the laws exist in no place? How do you have laws with universal effects in every place, if the laws exist in no place?
It seems you have to say that they belong to the thing. Which thing? The thing that is the field of action in which the universe came to be, and within which it is sustained. That is to say that this universal container is a thing that has a nature: a nature in exactly the terms Aristotle offered in Physics II, when he defined nature as when a thing has "within itself a principle of motion and of stationariness." That's exactly what we want this thing to have: a principle internal to itself that defines how motion operates. (We tend to dispense with 'stationariness' in modern and contemporary physics).
Because this thing is the container for our universe, its internal principle is a safe location for the laws of physics to be written. They can exercise both the creative function he wants, and the universality we seem to observe.
That's an answer to the question of where the laws are located. It's located in a thing that has no place, because it is the container of every place. The existence of this container is certain, as is the fact that it must have a nature.
Thus, we don't have to stop with "A" because "A" was caused by a "B" with an unknowable cause "C." We may stop with "A" as a matter of science, but we can rely on the existence of "B" as a matter of logic. As to C, well, that's just where I differ with the good astrophysicist. Rather than wishing to stop at the last safe place before risking that escalation, from my perspective, that's just where it begins to get interesting.
Summer is the Angry Time
Not much to love about heat and humidity, even when things aren't hard as they are for millions of our brother and sister Americans this summer. Good time for some angry blues.
Consent
I suspect a lot of Republicans are reading this question as, "Do you consent to what the government is doing?" But the unaffiliated number is alarming.
My answers would be: if you mean consenting to continuation of highway, police and fire services, probably 90%; if you mean consenting to 'a fundamental transformation of America,' probably 22%. As to the second question, I have an answer I'll keep back for the moment, because I don't wish to prejudice your answers.
Only 22% of the nation’s likely voters believe the government today has such consent.
A new Rasmussen Reports national telephone survey finds a wide partisan gap on the question. Democrats are evenly divided as to whether or not the government has the consent needed for legitimacy. Only eight percent (8%) Republicans and 21% of unaffiliated voters believe it does.A better question, maybe: what percentage of the people do you think consents to the government? And, by the way, what percentage does it take to make the government legitimate?
My answers would be: if you mean consenting to continuation of highway, police and fire services, probably 90%; if you mean consenting to 'a fundamental transformation of America,' probably 22%. As to the second question, I have an answer I'll keep back for the moment, because I don't wish to prejudice your answers.
Cancer or Heart Disease. Your Choice.
Apparently that's about it, now.
I pray I might die in a manner more fit for a warrior; on the highway, or by blade or gun. Yet such things are for a higher power than me to decide. Whatever comes, I shall abide; and as Lancelot said, boldly, whatever God sends shall be welcome.
I pray I might die in a manner more fit for a warrior; on the highway, or by blade or gun. Yet such things are for a higher power than me to decide. Whatever comes, I shall abide; and as Lancelot said, boldly, whatever God sends shall be welcome.
Patronage
The classic way to win a Presidential election is to convince a majority of voters that you represent the vision they want to see for their country. There's a secondary way, though, if that doesn't work: buy off key segments in key states.
Since the normal way is out this year, we're left with route two.
Well, once you can't win their hearts, you have to bribe them. Maybe there's enough voters left who can be bought. That's the only road, now. You only get away with this once:
They know you, now.
Since the normal way is out this year, we're left with route two.
Well, once you can't win their hearts, you have to bribe them. Maybe there's enough voters left who can be bought. That's the only road, now. You only get away with this once:
They know you, now.
Frontiers and Privileges
Since T99 is talking about legal privileges today, I thought I would share a tidbit from some further historical research on Medieval Spain.
Apparently the greatest scholar of such history in the English-speaking world was Dr. Angus MacKay (pronounced, for the non-Scots among you, so that "Kay" rhymes with "sigh"). Born in Lima, Peru, he grew up with the Spanish language and developed a love of history.
Dr. MacKay demonstrated, among other things, that during the period when Spain was reconquering land from the Islamic states, there was a persistent population problem. Land needs to be worked, and cities need to be defended. Most of the Muslims would leave an area that became Christian -- although about one in three people in these reconquered areas continued to be Muslim -- so it was necessary to get people down there to work the land and hold the towns.
This led the kingdoms of Spain to offer legal incentives to anyone who would move to one of the frontier towns. If you could fight, you were due more; and if you could provide your own arms, still more. If you could fight, provide your own arms and a horse, you were elevated regardless of the circumstances of your birth to the status of a caballero -- that is, a knight -- although your low birth was socially recognized. However, as one of the privileges of this status was exemption from taxation, if you won much plunder by the strength of your arm, or simply could maintain the status for a few generations or ordinary income, your sons would rise to the status of hidalgo (literally 'son of something,' i.e., a child whose ancestors had amounted to something).
Additional tax incentives were offered, sometimes liberating everyone who came to a town from classes of ordinary taxes. Sometimes it freed those who participated in raids from paying back any plunder to the crown. But the most interesting one, to me, was this one promise made by King Alfonso VII to the lords and settlers of Oreja:
And yet this romantic view is not out of place in the middle ages. It is a rule that comes, as we have seen, at the same time as the courtly love poetry of the troubadours was wildly popular among the kings of southern France, Spain, and England. It was also the time of the idea put forward by the Church that the love of husband and wife was a reflection of the love of souls for God.
It was available to those brave enough to cast aside everything for their love, except the hope that their risk and labor might provide better than what they were casting away. A poor man's son who could work his way to a horse and mail, and so win the heart of a girl that she would go with him even to the frontier, could find love and wealth and glory, raise himself to knighthood and his children to the nobility, and all while being devoted to the service of God.
Such times were heady indeed.
Angus MacKay, Spain in the Middle Ages: From Frontier to Empire, 1000-1500 (New York: St. Martin's Press, 1977), 37-9, 48.
Apparently the greatest scholar of such history in the English-speaking world was Dr. Angus MacKay (pronounced, for the non-Scots among you, so that "Kay" rhymes with "sigh"). Born in Lima, Peru, he grew up with the Spanish language and developed a love of history.
Dr. MacKay demonstrated, among other things, that during the period when Spain was reconquering land from the Islamic states, there was a persistent population problem. Land needs to be worked, and cities need to be defended. Most of the Muslims would leave an area that became Christian -- although about one in three people in these reconquered areas continued to be Muslim -- so it was necessary to get people down there to work the land and hold the towns.
This led the kingdoms of Spain to offer legal incentives to anyone who would move to one of the frontier towns. If you could fight, you were due more; and if you could provide your own arms, still more. If you could fight, provide your own arms and a horse, you were elevated regardless of the circumstances of your birth to the status of a caballero -- that is, a knight -- although your low birth was socially recognized. However, as one of the privileges of this status was exemption from taxation, if you won much plunder by the strength of your arm, or simply could maintain the status for a few generations or ordinary income, your sons would rise to the status of hidalgo (literally 'son of something,' i.e., a child whose ancestors had amounted to something).
Additional tax incentives were offered, sometimes liberating everyone who came to a town from classes of ordinary taxes. Sometimes it freed those who participated in raids from paying back any plunder to the crown. But the most interesting one, to me, was this one promise made by King Alfonso VII to the lords and settlers of Oreja:
If someone should flee to Oreja with a woman, who is not his relation, is not married, and has not been taken by force or ravished, and he wishes to be one of the settlers, then he is to go there safely, and the lord of Oreja need not fear to accept him, and neither he nor the man who has seduced her has to answer to any of the woman's relatives.That's an incredible waiver from the usual rules of marriage at the time. It's also interesting that it requires only her consent, but allows the consent of her family to be defied entirely.
And yet this romantic view is not out of place in the middle ages. It is a rule that comes, as we have seen, at the same time as the courtly love poetry of the troubadours was wildly popular among the kings of southern France, Spain, and England. It was also the time of the idea put forward by the Church that the love of husband and wife was a reflection of the love of souls for God.
It was available to those brave enough to cast aside everything for their love, except the hope that their risk and labor might provide better than what they were casting away. A poor man's son who could work his way to a horse and mail, and so win the heart of a girl that she would go with him even to the frontier, could find love and wealth and glory, raise himself to knighthood and his children to the nobility, and all while being devoted to the service of God.
Such times were heady indeed.
Angus MacKay, Spain in the Middle Ages: From Frontier to Empire, 1000-1500 (New York: St. Martin's Press, 1977), 37-9, 48.
Privileges
Here's the process for withholding privileged documents if you're a reasonably principled lawyer. You put together the entire universe of documents that appear to be responsive to the document request. Then you examine every single document to determine whether it falls within an established privilege, usually "work product" or "attorney-client." The first cut of "work product" documents would include anything that could possibly be said to quote or reflect advice that the client received from counsel. For the "attorney-client" category, the first cut would include anything from the attorney to the client or vice versa, including anything cc'ed to the law firm.
If only you got to stop there, document production would be a breeze. The next step is harder. In the case of work product, for instance, often the main document is OK, but a line or two might say, "As you know, counsel advised us that ______," and the blank would need to be redacted. In the case of attorney-client privilege, you're not going to get away with withholding everything that was circulated past the lawyers. If the cc list included anyone who wasn't a client, for instance, it goes back in the pile to be produced, because the privilege requires a showing that the advice was given and held in confidence. Even if the cc list is made up exclusively of lawyers and clients, it still has to involve the quest for or rendition of legal advice. You can't shield ordinary business documents from production by slapping a "lawyer cc" on them, though that gambit is often tried.
Even when you finish this more rigorous secondary process, you don't simply get to keep the documents you think are privileged and tell the other side to pound sand. You have to produce a privilege log, a little chart that identifies each document, including its date, its recipients, and enough about its general nature to explain why you claim a privilege attaches to it. This is a critical stage, because the judge and any competent lawyers in the case can take one look at your privilege log and see whether you're serious. The absence of a privilege log, or the absence of detail, is a big red flag that screams "My idea of screening for privileged documents to sort everything into two piles: the documents that will embarrass me and the documents that won't." It's a more common approach than you might think.
Sen. Chuck Grassley (R-Iowa) is making a very reasonable demand today for a privilege log of the "Fast and Furious" documents withheld by the White House on the ground of executive privilege. He's also on solid ground with the following observations:
Discovery disputes are boring. Judges hate to get involved in them, so they tend to blow them off by taking a "plague on both your houses" approach, which gives crummy lawyers an incentive to abuse privileges and hide evidence. The media is doing the same thing right now, painting the picture of yet another partisan attack based on an arcane legal theory, which voters should tune out in frustration. I hope they don't.
If only you got to stop there, document production would be a breeze. The next step is harder. In the case of work product, for instance, often the main document is OK, but a line or two might say, "As you know, counsel advised us that ______," and the blank would need to be redacted. In the case of attorney-client privilege, you're not going to get away with withholding everything that was circulated past the lawyers. If the cc list included anyone who wasn't a client, for instance, it goes back in the pile to be produced, because the privilege requires a showing that the advice was given and held in confidence. Even if the cc list is made up exclusively of lawyers and clients, it still has to involve the quest for or rendition of legal advice. You can't shield ordinary business documents from production by slapping a "lawyer cc" on them, though that gambit is often tried.
Even when you finish this more rigorous secondary process, you don't simply get to keep the documents you think are privileged and tell the other side to pound sand. You have to produce a privilege log, a little chart that identifies each document, including its date, its recipients, and enough about its general nature to explain why you claim a privilege attaches to it. This is a critical stage, because the judge and any competent lawyers in the case can take one look at your privilege log and see whether you're serious. The absence of a privilege log, or the absence of detail, is a big red flag that screams "My idea of screening for privileged documents to sort everything into two piles: the documents that will embarrass me and the documents that won't." It's a more common approach than you might think.
Sen. Chuck Grassley (R-Iowa) is making a very reasonable demand today for a privilege log of the "Fast and Furious" documents withheld by the White House on the ground of executive privilege. He's also on solid ground with the following observations:
“Just last week, when the attorney general was in front of this committee, I asked him twice if the president could claim executive privilege to protect a certain internal Justice Department email that has been withheld,” Grassley said. “Given the explicit opportunity, the attorney general did not indicate he would be asking the president to assert executive privilege over such documents.”
“The attorney general repeatedly claimed that the Justice Department was making an ‘extraordinary offer’ Tuesday night,” Grassley continued. “The only thing extraordinary is that the attorney general offered a promise to produce documents one day and then asked the president to claim executive privilege over them the next.”
Grassley also attacked Obama for waiting until the eleventh hour to assert the privilege. “If this were a serious claim, it should have been raised much earlier,” Grassley said.It's very difficult to understand how an executive privilege could attach to documents about a program the President claims not to have had any knowledge of. Nor is it easy to understand how the Attorney General can assert with a straight face that the program in question dates from the Bush administration, and that he terminated it many months before he now asserts he even became aware of it. In a trial, this kind of thing would prompt the filing of what we used to call a "motion to get real."
Discovery disputes are boring. Judges hate to get involved in them, so they tend to blow them off by taking a "plague on both your houses" approach, which gives crummy lawyers an incentive to abuse privileges and hide evidence. The media is doing the same thing right now, painting the picture of yet another partisan attack based on an arcane legal theory, which voters should tune out in frustration. I hope they don't.
Knives as "Arms"
Volokh has an interesting examination of case law regarding whether knives are "arms" for Second Amendment purposes.
A lot seems to turn on whether a class of weapon is regularly used in "civilized warfare." That standard would seem to make it proper to carry a Kabar, since it was military issue and is still regularly carried by soldiers, sailors and Marines...
...but not a Buck knife, which is primarily for hunting. Yet the design is substantially the same, except the Buck 119 Special is a little shorter.
It's nice to know that swords still turn up as 'weapons of civilized war.' They're not as random or clumsy as a handgun, either.
A lot seems to turn on whether a class of weapon is regularly used in "civilized warfare." That standard would seem to make it proper to carry a Kabar, since it was military issue and is still regularly carried by soldiers, sailors and Marines...
...but not a Buck knife, which is primarily for hunting. Yet the design is substantially the same, except the Buck 119 Special is a little shorter.
It's nice to know that swords still turn up as 'weapons of civilized war.' They're not as random or clumsy as a handgun, either.
On the Need for "Home Economics" Courses in School
Via Yahoo questions:
My girlfriend cooked raw chicken in the George foreman last night. The next day i wanted to grill my sandwich but she did not clean the foreman grill. I said i would get sick if i placed the sandwich on the grill where raw chicken has been. she insisted that the raw chicken cooked so i would not get sick from raw chicken juices. Whats going on here?
R. Lee Ermey, Bus Monitor
You know how we got here? It's because we decided we were too soft for this. These kids obviously have not had a proper sense of shame instilled into them by someone who knows how.
Children are barbarians. Either you are strong enough to win their hearts, or they will eat yours.
Children are barbarians. Either you are strong enough to win their hearts, or they will eat yours.
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