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Morning Edition: Other People on Conservapedia

I’ve enjoyed our brief popularity during the rush to see, and shudder at, Andy Schlafly’s battles with Dr. Richard Lenski. On Conservapedia, the battle continues: Schlafly still hasn’t read Lenski’s relatively short paper, and yet continues to attack its conclusions and call for “information” that he wouldn’t have the tools to analyze. Sigh.

But, more importantly, the Lenski debacle has focused the talents of many on understanding the phenomenon that is Conservapedia, with some success: among the best, check here, at “Lay Science,” to understand where Conservapedia’s web traffic really comes from. The story? It’s mostly gawkers, with serious contributors few and far between. No surprise there.

Liveblogging David Kirby’s NYU Law Talk

Welcome, everyone, to NYU Law’s scenic Tishman Auditorium. Kirby’s introduced by Mary Holland, one of our great lawyering program professors. Before going any further, I’d like to emphasize how great this law school is. Holland is part of one of the more unique programs at the law school, one of the programs that really makes the school stand out (come to NYU Law, kids, seriously). Anyways, Professor Holland studies the legal controversy, and follows Kirby to stay up-to-date.

Note – his slides are on his website. iPhonePhotoBlogging doesn’t make for good pictures. My rough transcript is below. I’ll post after the lecture with comments for some go-to moments. For now, I’ll just say “6:57.” I’d also appreciate it if some awesome people with scientific knowledge could take my journalism and turn it into commentary.

Continue reading »

UPDATED – Supreme Court on Guns: I Don’t Care, I’m Still Free – You Can’t Take My Guns From Me

The Supreme Court has ruled in the case of D.C. v. Heller, finding that there is an individual right to bear a firearm for self-defense and hunting. The AP suggests that the ruling goes farther than the Bush administration wanted, which may be bad news for a well ordered society.

The opinion is available here. Comments when the beast is read, but I wouldn’t worry too much: a scan of the syllabus suggests that the majority opinion, by Scalia (in another 5-4 split) suggests a limited and regulated individual right to possession. Scalia, for example, does not doubt that age-old bans on possession of firearms by felons or the mentally ill are constitutional. While this is interesting, it’s not earth-shattering, at least as far as I’m reading. I daresay so far that I was right.

——

Update (3:18 PM):

I was right!  Scalia discusses at length – see pages 54-64 – permissible and impermissible regulations.  Concealed carry is justly outlawed.  Military assault rifles are justly outlawed, despite their presumptive utility in fighting a modern-day army: (“the fact that modern developments have limited the degree of fit between the prefatory clause [on the militia] and the protected right cannot change our interpretation of the right.”).  D.C.’s gun control regime fails only because it amounts to a ban on handguns, which flies in the face of the self-defense rationale that Sclaia exalts, since “the American people have considered the handgun to be the quinessential self-defense weapon.”  Although it worries me that Scalia objects to a balancing test to determine what is proper regulation – he says, “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest balancing’ approach,” which leads me to believe he hasn’t been reading equal protection law for about 50 years – I am confident that this decision, properly applied, just codifies what we already knew: gun regulation has to be reasonable, and can’t obliterate the right to self-defense.

Honestly, this is a very moderate Scalia opinion, aside from one word sentences every now and again – “Grotesque.”  “QED.” – and is probably the best constitutional solution, given our Second Amendment.  Whether it’s the best solution for society is another question.

Andy Schlafly & Dirty Lawyering

A recent post to Andy Schlafly’s talk page on Conservapedia suggests that we’ve not yet heard the last from him on the Lenski debate. In fact, it almost sounds like Andy’s preparing to sue – or, rather, threaten to sue – Lenski, just to possibly make a point. Given the turn that events could take, it’s important to remember that Andy Schlafly approaches law as a political tool, to use to get what he wants, regardless of whether he’s right, or even honest.

Schlafly’s past and potential future use of sketchy lawyering tactics against Lenski is by no means the first time he’s stooped to abuse of legal knowledge to make his case. Andy views law not as a profession in service of the public, but rather as another weapon to use to wound his ideological opponents, without regard to professional ethics. Another example:

Last year, Conservapedia’s mortal enemy, RationalWiki, posted a side-by-side, point-by-point refutation of one of Conservapedia’s articles. The RationalWiki refutation article obviously included Conservapedia content, and employed it towards the end of comparison and criticism, which is clearly fair use within United States copyright law. When Andy saw RationalWiki’s article, though, and its appropriation and critique, he threatened to sue, asserting that his “copyright” on the Conservapedia material was infringed by its reproduction and critique. To say that Andy was wrong is to understate the point: it’s unclear whether Conservapedia, an open-source encyclopedia, even has a copyright, and even if it did, copying to critique is clearly fair use. Andy’s position was so wrong that he could not have even entertained the possibility that he was right. He threatened civil litigation knowing the law wasn’t on his side, hoping his legally unsophisticated opponent didn’t know enough to fight him. Threatening civil litigation in bad faith is bad enough; using a bad faith threat to exploit a legally unsophisticated party is even worse.

We law students – as future lawyers – get a bad rap because of people like this. Law is a powerful tool: it turns knowledge into power quicker than almost any other skill set, and in the wrong hands it can be a frightening weapon. The power that lawyers wield can only be justified by adherence to a strong code of ethics. Despite protestations of his Christian morality, Andy lacks this requisite professional moral code. So if you find yourself in a debate with him, and he threatens you with a lawsuit or starts to use legal reasoning against you, (1) be suspicious, and (2) be afraid. Weave a circle ’round him thrice and close your eyes in holy dread. He won’t hesitate to lie or abuse his power to beat you down.

Oh, and Andy, if you’re thinking of suing over this post, just remember that truth is a complete defense.

Morning Edition: T. Boone Pickens of Swiftboat Veterans for Truth is a Coward, and McCain Doesn’t Get Foreign Policy

I’m no big city lawyer, but man to masses, pseudo-Texan to internet, we here have a word to describe people like Texas oil magnate and Swiftboat Veterans for Truth financier T. Boone Pickens: coward.  See, Mr. Pickens promised to fork over $1 million to anyone who could disprove any of the allegations posed by Swiftboat Veterans for Truth, the 527 group that slandered Senator John Kerry and cost him the 2004 presidential election. 

Now, having been disproved not once but ten times over, Pickens has moved the goalposts, saying that his “challenge” only applies to the television ads his group ran.  The television ads were the tip of the iceberg of lies – the spark that touched off interviews, books, and other television spots – and were significantly less influential and less viewed than the derivative media frenzy he created.  But now Pickens only wants to be accountable for the smallest part of his web of lies.  For shame.

The good news is that Pickens will be donating neither his billions nor his talents to deceive to the McCain campaign: he’s sitting this election out, perhaps a sign of the times of conservative disaffection with McCain.

Also on McCain, a random note on a story that slipped through the cracks all over: apparently McCain is still fighting the Cold War, and wants to toss Russia out of the G8, presumably because the best thing you can do for a democracy sliding into dictatorship is alienate it.  That’ll show ‘em.  I thought McCain was supposed to be good on foreign policy…?

White Supremacy in Manhattan

Let’s all remember that, contrary to Stephen Colbert’s assurances, racism is not dead. It is still a serious problem, in its subversive & subconscious form, but also in its more virulent and open form, which is apparently alive and kicking even in the nicer areas of Manhattan. Below, a picture of a dirty window pane at Baruch College, with the words “WHITE POWER” sketched into the dust.

I’m not sure if you’ll be able to see it. It was early morning, so the background is reflected pretty clearly in the window, somewhat minimizing the writing. You might have to trust me, but look closely. “White” is written in large letters, with “power” in the bottom right corner. If you’re in Manhattan, this is on the north side of 24th Street between Lexington and Park. Go see it, and bring Windex.

I hope this is a joke. But it sure as hell isn’t funny.

The Conservative Overreach

Jeff Toobin, in his book The Nine, credits the rise of intellectually respectable conservative legal philosophies, and the concomitant rise of their avatar Antonin Scalia, to a liberal overreach in the 1960s. Having succeeded with Brown v. Board at defining a role for the judiciary in creating social progress, liberal jurists tried to move for change faster than society would allow – the world wasn’t ready for Roe, and it wasn’t ready for critical legal studies (in the case of the latter, it may never be). They paid the price by eliciting a backlash that paved the way for their own enemies to triumph.

I think this trend of overreaching goes beyond the judiciary. In the same time period, liberal politicians sacrificed political efficacy for a just society, but also overextended themselves, losing touch with the American base in the process. We’ve certainly paid the price: even in victory, liberal politicians like Bill Clinton have found themselves on the defensive when working for important liberal goals. Far from being a singular liberal failing, though, the theme of overreach and reversal is becoming cyclical, and may become the defining characteristic of this coming presidential election.

Bush was elected in 2000 as a moderate, and re-elected in 2004 as a firmly right-wing conservative. Since that time, though, Bush has shown every sign of overreaching his ideological mandate, alienating Americans from the party and from conservatism. Examples of a positions that alienated middle America, proving the conservative overreach, abound.  Inter alia, we have the refusal to reauthorize the assault weapons ban (proving that knee-jerk, ideological reactions to anything with the words “gun control” trumps national security interests in Bush’s book), the spectacular failure of nation-building (goodbye neocons), the divisive attempts to use major issues just to piss off the right people (notice how gay marriage only destroys families in election years?), and blind ignorance of global warming science. All this – together with the facts that even evangelical Christians are starting to feel played, and that John McCain is always on the defensive when talking about conservatism – suggests to me that America is fed up with conservatism, at least as applied by the Bush administration. McCain’s only hope is to make conservatism into something moderate and palatable, switching positions on a couple issues in the process.

All of this is a good sign for liberals. While that L-word is still best not mentioned – and will probably still be the four-letter word of politics – at least some of the more dangerous issues of conservatism are dead, and at least McCain is on the defensive on his own ground.  But let’s not get cocky.  Remember, all of this has happened before, and all of this may happen again.

Why John McCain May Be Right About Iraq, but Why It Doesn’t Matter

When I was a sophomore at Rice, I took a course called “The Politics of American National Security,” known colloquially to the students as “Bombs & Rockets.” Taught by one of Rice’s big-name rock-star political science professors, a brilliant man and a fantastic lecturer, the course highlighted why America has or hasn’t been involved in conflicts, and why those conflicts went the way they did. About half of the course centered on the post-Vietnam era, and what we learned from that war. The enduring lesson of it, our professor told us, was crystallized in the Powell Doctrine, which stated that when America goes to war, it ought to attack with overwhelming force, have a discrete goal, and have an exit plan. Seemed to me to be a good idea.

Since we had not yet invaded Iraq by that time, the professor’s final exam closed with an essay question asking us to decide whether or not invading Iraq was a good idea, based on what we’d learned about global strategy and tactical planning. I answered in the negative: since we had no discrete goal, no exit plan, and split popular opinion, it seemed to me to that invading Iraq would be quite a poor decision. After all, the evidence bears out that democracies crush their opponents in fast, popular “just wars,” but inevitably lose in unpopular, drawn-out conflicts. At that point, any theoretical Iraq war was starting to look a lot more like the latter than the former. The real danger, I thought, was that we would find ourselves in a quagmire from which we could not extricate ourselves without bringing the whole thing crashing down on ourselves. Invasion is one thing and nation-building is another, but to be stuck propping up a foreign government for the forseeable future, out of fear of the consequences if it should fall, sounded to me like a very poor idea.

I like to think that history has vindicated the B- that answer earned. We went into Iraq with a million justifications (some of which have turned out to be lies), without a clear goal, and without a terminating point in mind other than “victory,” a term whose goalposts continue to shift. It’s now clear that the Iraq War, at least as executed, was a mistake. I do not for a minute state that Saddam Hussein was not a threat. The points are rather that (1) the opportunity cost of committing to Iraq continues to outstrip the value of the peace we’ve gained by neutralizing him, (2) there were worse threats and higher priorities at the time and, (3) even if Saddam was a threat, his removal was poorly executed. So what to do now? Pull out?

The problem is that my sophomore exam was too right. I prophesied that the result of an Iraq War would be a situation from which America could never extract itself, lest it plunge the entire region into chaos. Sadly, this is just so today. If “The Surge” has bought peace in Iraq, it has only bought peace by force of arms: remove the arms, and the peace collapses, to the detriment of the gains we’ve already made in Iraq. Effectively the only choice we have now – a crossroads to which incompetent planning has inevitably brought us – is whether to abandon Iraq and forfeit all our gains, or stay for what may yet be McCain’s 100 years, and pray that the situation eventually works out.

In this sense, the Democrats’ plan to withdraw from Iraq as soon as possible is a poor response. Withdrawal would risk restoring the status quo ex ante, or worse, could plunge the entire region into more chaos than existed before we invaded. So how can I still support Obama over John McCain, if Obama’s policy effectively gives up Iraq?

The answer is, because that result is probably inevitable. The war is increasingly unpopular: although we were deprived of the chance of having a meaningful dialogue on Iraq before, now that we’re having it, the consensus seems to be that the sacrifice isn’t worth it anymore. When Bush pushed this war through the Congress, and down the public’s gullet, he coated the issue with lies and incorrect justifications to make the price of war easier to swallow. Now that the war has gone poorly and we have a new election around the corner, we’re finally being forced to have the national dialogue on this war that Bush’s lies robbed us of, and the results suggest that it’s time to leave.

I can’t chalk that decision up to the notorious shortsightedness of citizens in a democracy. This isn’t a case of citizens in a democracy failing to see the long-term benefits of policies; rather, it’s citizens finally understanding the long-term costs and benefits, and deciding against that course of action.

In the end, we may have to consign ourselves to failure in Iraq, a course that’s been practically predetermined for us since Bush’s long-on-ideals, short-on-planning war machine kicked into gear. We can elect someone who will keep us in Iraq now, just to have someone else pull us out with much the same consequences. Short of some amazing change of events, if we elect McCain based on his support for continuing the Iraq War, we’ll simply find ourselves laying down more lives than necessary to prevent failure made inevitable by the incompetence of others.  And if you truly “support our troops,” you’ll want to look long and hard at the reasons for asking more of them to die.

Beneficial Mutations in Bacteria, Wherein Conservapedia is Pwned, Take II: Andy Schlafly’s Lawyer Gambit Fails

If you want to see what happens when an intelligent, polite man meets an ideologically-driven unread boor, look no further than the continued correspondence between Andy Schlafly, pundit and bigot extraordinaire, and Dr. Richard Lenski, biologist. This little battle has become somewhat of a cause celebre, so I’m happy to revisit the debate. For those of you just joining us, here’s the story as it stands now (fuller recap on earlier developments here):

1. Richard Lenski published a scientific study proving, again, that evolution can generate new information and beneficial mutations, thus disposing of a common creationist canard.
2. Andy Schlafly, creationist pundit and proprietor of Conservapedia (the “trusworthy” encyclopedia) couldn’t stand science beating his beloved ideology (creationism), so he wrote Lenski and complained: “show us your data!”
3. Lenski replied, “please read the paper, it’s all there.” My last post left off at this point.
4. Although Schlafly could have read the paper to get the important data, Schlafly instead replied in true lawyer fashion (I can mock my profession!), dodging the issue on the merits and instead demanding that Lenski produce all twenty years of his research leading to his conclusions – i.e., an impractical amount of data – for Schlafly’s review.

There’s a trick to that last request: it’s a particularly evil modern lawyer move called “burying the opponent in discovery.” You demand that the other guy show you an impossibly large amount of vaguely important or tenuously related documents, thereby abusing notions of procedural fairness to waste everybody’s time, rack up your bills, and hopefully run the little guy out of the process if he can’t afford the cost of sending you the documents. Ideally, this trick forces settlement, thus avoiding a substantive debate that you might *gasp!* justly lose. Although Schlafly’s not billing, he presumably thought that he could claim the high ground by demanding that Lenski show him twenty years worth of data, and mocking him when he didn’t or couldn’t do so.

To be clear, real lawyers frown on this tactic: it’s immoral and against professional ethics. But that won’t stop a man like Schlafly from trying it, so demand he did. Lenski, Schlafly assumed, wouldn’t waste his time, and Andy could claim victory not because he’d won on the battlefield of ideas, but because he’d tuckered his opponent out by focusing the debate on posturing & style, instead of substance.

If that was Schlafly’s idea, it didn’t work. Lenski saw the trap and avoided it. He again replied by challenging the political paradigm into which Schlafly was trying to shoehorn the debate, demanding instead that Schlafly debate him on the scientific merits, or not at all. Lenski also played within the Schlafly paradigm insofar as necessary to defuse it: “If any such request [for production of scientific data] requires substantial time or resources… then of course I would expect the recipient to bear those costs.” There goes the lawyering trick.

In short, Andy Schlafly just lost on his own turf, and will lose in a debate on the actual science of the issue, if he chooses to engage in one. Don’t expect him to do so, though. Expect a few more tricks that will just make us good lawyers look bad.

Two Big Mistakes

As much as I love Barack Obama, he sure has a talent for putting his foot in his mouth. Most recently, he’s described how angry Hillary supporters will soon “get over it.” He’s right – when they see how bad McCain will be on their issues, they’ll turn to Obama – but there’s a better way to say that.  As in, there’s a way to say it without playing directly into their fears.

Thank God there are McCain advisers out there praying for another terrorist attack. At least that might balance out the news cycle. Bush’s Republican party: preying on your fears since 2001.