Wednesday June 30
Can't Win 'Em All
Much as last week's judicial decision on media concentration was a great victory, today's ruling by the U.S. Court of Appeal for the D.C. Circuit -- upholding the government's 2001 antitrust settlement with Microsoft -- was a terrible loss. Microsoft Prevails in Antitrust Appeal [InternetNews.com]. Not only because I was counsel to the appellants, as "third fiddle" behind former Judges Robert Bork and Ken Starr (renowned lawyers whether one agrees with their rather extreme politics), but more importantly because the court just failed to grasp the significance of the issues it was dealing with. For instance, even though Microsoft was found to have unlawfully monopolized the PC operating system market by bundling Internet Explorer into Windows, the court ruled that a decree (i.e., a remedy) that does NOT require unbundling is adequate and in the "public interest."
This is really bad news for antitrust enforcement and utilmately for consumers. The market has moved far beyond the "browser wars" between Netscape and Microsoft that gave rise to the case in 1995, but an end result that allows a convicted monopolist to do the same things to other upstarts -- and thus squelch competition -- that it did to drive Netscape from the market is inexplicable.
Posted by glenn at Monday June 28
Yes, We Have A Constitution
High Court Deals Blow to Bush's War on Terror [Reuters.com]. So today the Supreme Court ruled that Guantanamo Bay detainees can indeed challenge the constitutionality of their confinement, rejecting Bush Administration assertions that the Executive Branch is entitled unilaterally to lock up even suspected terrorists without legal recourse. Last December I compared one of these cases to the infamous 1944 Korematsu decision, in which the Court upheld the internment of Japanese-Americans in California concentration camps, with their property confiscated without any reasonable cause, merely because of their race, due to the "exigencies" of World War II.
Thank goodness those days are, at long last, gone. Today, the Court concluded that "it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court" just because the President says he should be detained. "[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens." Yes, we still have a constitution, and it works.
Cheney's F-Bomb
Vice President Dick Cheney used the "F-word" against Democratic Sen. Pat Leahy at a photo-op session last week, with conservatives now defending his unsolicited vulgarities as "long overdue." (Check out this great political cartoon by Tom Toles.) Well, trash-talking is nothing new for Republicans, except that as Maureen Dowd points out
But some are noting that in an interview with Fox News on Friday, Cheney described his response to Mr. Leahy's attack on his integrity as "appropriate," and said he "felt better" after uttering it. As that paragon of liberalism, the Christian Science Monitor, opined, "[s]uch defensiveness only sets the bar of civil discourse lower." In Dubya's America, one cannot critize the Administration without being told where to shove it. Well, fuck them, too.
Sunday June 27
The IRL's Delusion
My son, wife and I went to Richmond this Saturday evening to watch the IndyCar race, won by Briton Dan Wheldon, who performed some fine doughnuts right in front of us after taking the checkered flag. It certainly was a nice change to be a racing spectator in the cool evening instead of a hot, humid afternoon.
But, as usual, the whimpy stewards ruined the race by putting the yellow caution lights on with four laps left -- because one car ran of of gas -- instead of racing under green to the finish. So even though Tony George is running the Indy Racing League as a show instead of a sport, he can't even get the show right. Just like the Indy 500, which has dropped like a stone in the past decade due to George's mismanagement, the IRL is a case of arrested development.
Thursday June 24
Media Concentration
Court Rejects Rules On Media Ownership [WashingtoPost.com]. The U.S. Court of Appeals for the Third Circuit today reversed an effort by the Bush Administration to liberalize rules allowing for increased broadcast media consolidation, including common ownership of newspapers and television stations in the same market. I was privileged to argue the appeal for Consumers Union and the Consumer Federation of America. A big win in an important case.
Monday June 21
What's In a Name?
The Supreme Court ruled today, by a 5-4 vote, that the Constitution does not prohibit state laws making it a crime for a person to refuse to identify himself to the police, even where there is no probable cause to believe that the individual has committed or is about to commit a crime. People Must Give Police Their Names, Court Rules [WiredNews.com]. The decision reasons that police are allowed to stop people whom they have "reasonable suspicion" to conclude may have acted criminally, without a warrant -- known as a "Terry stop" for the 1968 case permitting them -- so the arrest is no greater intrusion.
But in Terry, the Court concluded that a warrant was unnecessary because individuals subject to a stop based on reasonable suspicion are "not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest." And the majority today also concluded that identity alone is not incriminating. As Justice Stevens pointed out in dissent, however, "if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy."
All of this goes to show just how screwed-up criminal law in the U.S. has become in the wake of 9/11. This case was about a man standing on the side of the road talking to his daughter through the open window of her pick-up truck. All he wanted was to be left alone. Now the law says the police can drive up and cart you off for doing nothing wrong, with no crime involved, just because you refuse to give your name. This is wrong. As Justice Brandies said nearly 100 years ago, the Constitution protects "the right to be left alone." At least it did until this conservative Supreme Court got through trashing privacy in favor of law enforcement.
Sunday June 20
The Golden Goosen
On a Shinnecock Hills golf course with conditions so difficult that the average score was a lofty 78.8 and no one broke par on the final round, South African Retief Goosen won the US Open by two strokes with 11 one-putt holes in the final round. Retief Reaches Summit [Newsday.com]. Now everyone -- including Tiger Woods, who was never in contention and played as poorly as anyone on the course -- is criticizing the USGA, saying they made it too hard to play. But every player was on the same course, so it was equally hard for everyone.
These guys make millions every year for hitting a little ball around in the sunshine. Suck it up and play the game. That's what Goosen did, while competitors like Phil Mickelson (double bogey on the 17th hole with a three-putt) folded all around him. I say the guy plainly deserves his victory and the others are just cry babies.
Friday June 18
Playing in Peoria
Today the Cincinnati Post editorialized against Dick Cheney's claim -- contradicted by the 9/11 Commission -- that Iraq was working with Al Qaeda before the war.
If the Bush line won't play in Cincinnati, America's heartland, it won't play anywhere. The President's answer is "[t]he reason I keep insisting that there was a relationship between Iraq and Saddam and al-Qaeda [is] because there was a relationship between Iraq and al-Qaeda." Gee, that explains everything.
Thursday June 17
Schoolyard Bully
An even better analysis of the failure of the Bush Administration's Iraq policies comes from Joe Klein of Time Magaine, who wrote on May 29:
The truth is, we are in full-scale retreat, both politically and militarily. Bush believes that Iraq is the front line in the war on terrorism, but his Administration just declared a truce with the men he thinks of as terrorists and is now turning security over to local militias. "Stay the course" really means "run away."
Why Bush Has Failed Even Conservatives
Readers of his blog will notice that in the 15 months since the Bush Administration took the "War on Terrorism" to Iraq, my views have changed, roughly in proportion to the failure of proof of any of the real, near-term justifications -- WMDs, chem-bio weapons, harboring Al Qaeda, etc. -- for launching a preemptive invasion in the first place. I am certainly not alone in this position. Andrew Sullivan, host of Deep Dish, has this to say:
Right on, Andrew; you are not alone. If America is going to act unilaterally, we've got to be sure that the target is a "clear and present" danger not only to our own security interests, but those of the world in general. All that the War in Iraq has done is to squander the good will engendered by 9/11, provide a breeding ground for terrorism and make a mockery of American resolve by the equivocating and back-sliding on unilateralism itself.
There may not be a next time, but if there is America needs to act right, act fast and not overplay its hand. The Bushies were so intent on taking out Saddam Hussein that they broke all of these elementary rules. The irony is that Bush will probably win against John Kerry, if only because Kerry himself projects the same equivocation that Bush now epitomizes. So if the choice is between two wafflers, why should anyone really care?
Wednesday June 16
Comments are Back!!
Well I was wondering why there had been no comments on Fear & Loathing for about six weeks, so I tested the blog by trying to post a comment myself. Got an error message saying I was "not permitted" to post comments! Weird. So I looked in the Movable Type support forum and realized that in screening out IP addresses from blog spammers -- those hateful characters who post spam comments on blogs advertising drugs, pornography, etc. -- I had inadvertently left a blank line, meaning that EVERY address from ANY domain was being blocked. Fixed now. Comment away, but spammers beware!!@#
Technology and Terrorists
As if the USA PATRIOT Act and calls for a "Patriot Act II" are not bad enough, the Justice Department again demanded today that emerging Voice Over Internet Protocol (VoIP) services -- essentially telephone calling via the Internet -- be postponed until they are made compatible with digital wiretapping by the government.
This reminds me of the political debate over gun control, except backwards. Just as "guns don't kill people, criminals do," VoIP doesn't cause terrorism, terrorists do. The government should not take out its paranoia over over the inability of the CIA to get good intelligence on Al Qaeda by restricting the development of technology. Law enforcement has been trying to hamstring the Internet since the days of the "Clipper Chip" and encryption in the Clinton Administration. They were rebuffed then and these new calls to reign-in nascent techologies until law enforcement catches up adopt the same luddite approach. It should go into the dustbin of bad ideas.
Tuesday June 15
Liberals Under God
Yesterday the Supreme Court reversed a California court of appeals ruling declaring the Pledge of Allegience unconstitutional, but did so on a legal technicality ("standing") to avoid reaching the merits of the issue. The New Republic Online: Thank God. Once again, the liberals and conservatives on the Court switched, with Chief Justice Rehnquist and Justice Clarence Thomas arguing in dissent that the Court should find standing and uphold the Pledge.
One of my professors in law school used to say that standing doctrine was invoked when courts found certain politically explosive cases too much of "hot potatoes" to decide. Now it seems that standing is used when the Supreme Court cannot get a majority on a single decision and one wing of the Court -- which remains sharply divided politically -- is trying to avoid a bad result on the merits.
Saturday June 12
Reagan's Legacy
With all the endless tributes to the late President Ronald Reagan this week, it seems appropriate to examine whether the political profile being promoted at his death matches what he actually accomplished while in office. Fact is, Reagan ran as a conservative but governed as a moderate -- even liberal -- by pragmatically doing things (like deficit spending, arms reductions with the Soviet Union, etc.) that the Right despised and by ignoring the "Moral Majority" efforts to infect American politics with overt religion.
As Joshua Green wrote in Washington Monthly last February:
The truth hurts. So in politics, and now political revisionist history, those who forget the past are doomed to mischaracterize the future.
Thursday June 10
Lightning Strikes
Tampa Bay won the Stanley Cup earlier this week with a stirring, emotional Game 7 win over Calgary, in which an embattled, injured Russian (Ruslan Fedetenko) scored the winning goal. Even more interesting is how the Lightning's cool coach, John Tortorella, motivated his troops to play in the biggest game of their careers.
So the answer to the most intense pressure an adult athlete can ever face is to play like a kid. "Cocoon" in real life. A neat, and obviously effective, idea.
Sunday June 6
Triple Frown
Smarty Jones came into yesterday's running of the Belmont Stakes a 2-5 favorite, but left as yet another casualty of one of sport's most difficult tasks. The almost super horse who set a record winning the Preakness three weeks ago was caught in the last 100 yards of the long stretch run, disappointing millions of fans, but showing a lot of heart. As sportwriter Tim Price explains:
It all came down to the last 1/4 mile, which Smarty Jones ran in 27 seconds. That's about 4 seconds slower than every other segment of the race. Had this one been a mile and a quarter, like the Derby, it would have been a rout. Instead, Smarty smply ran out of gas. A great race, just a disappointing ending.
Friday June 4
Tiananmen Square
Today marks 15 years since the Chinese communist government cracked down on democracy protesters in Tiananmen Square in Bejing. The New York Times reported then that "[b]y ordering soldiers to fire on the unarmed crowds, the Chinese leadership has created an incident that almost surely will haunt the Government for years to come."
Surely true, but it seems that commerce and consumer goods have moved China into a more modern political position, something the democracy movement could not do successfully. Cell phones and cars -- the Chinese "economic miracle" -- may just be better at spawning political change than the famous student who bravely faced off PRC tanks in 1989. Of course, the Bejing government is heavily censoring satellite TV news reports on the Tiananmen anniversary. So what has really changed?
Transit of Venus
Venus Makes Pass at Sun: Astronomers Ogle First Transit Since 1882 [Nature.com]. This is very cool. Too bad it is going to be hard to see from where I live in the Eastern US.
Thursday June 3
Back-Door Draft?
The Bush Administration has issued an order preventing thousands of soldiers designated for duty in Iraq or Afghanistan from leaving the military even when their volunteer service commitment expires. [Reuters.com]. Sounds a lot like a back-door draft and the end of the all-volunteer army.
Tuesday June 1
Demise of the NHL
The National Hockey League "is in deep trouble and professional ice hockey is in danger of becoming a second-tier sport in much of North America." [FT.com]. This is really too bad, as last night's Game 4 of the Stanley Cup championships was fantastic. Tampa Bay won 1-0 in a hard hitting, tightly fought contest marked by spectacular goaltending and frequent changes in momentum. 
(Of course, the Calgary Flames complain they lost due to bad officiating.) But it's sort of like baseball in the 1970s, when pitching duels ruled. I say "lower the mound" to rejuvinate offenses, add a salary cap and revenue sharing, and make the NHL more like the NFL. But then again, I'm just a lowly fan and (former) season ticket holder.