Professor Bainbridge...on law, politics, religion, culture & food

Tung Yin on SNL/Sharpton

Al Sharpton is going to be on SNL tonight (and maybe Paris Hilton too; could there be a more useless person?). The LA Times reports:

Asked if giving Sharpton this opportunity was an endorsement, [SNL producer Lorne] Michaels insisted it was no such thing: "He's the guy who has the great one-liners, who dominates the debates. He just knows who he is and is comfortable with himself."

Tung Yin notes:

None of the NBC affiliates in Iowa is going to air Al Sharpton's upcoming appearance on the variety skit show for fear of triggering "equal time" provisions that would require the stations to give access to the other President candidates.

And asks:

Shouldn't there be some kind of common sense provision in the equal time laws? Or at least a "he obviously has no chance so we won't enforce the rule" provision?

Common sense died in Washington sometime during FDR's second term, but it sure would be nice if we brought it back. BTW, on a slightly related topic, if you haven't read Philip Howard's The Death of Common Sense: How Law is Suffocating America, you should.

Getting crosswise with some of my blogosphere buds

In my article Why a Board? Group Decisionmaking in Corporate Governance, I analyzed the Delaware corporate law rule that allows directors to participate in board meetings by conference call or speakerphone only if all participants can hear one another. I explained that the rule makes sense because, among other reasons:

Text-based communication also deprives participants of social cues, such as body language and tone of voice, that may be important signals. Social norms constraining behavior apparently function less well in text-based communication, as illustrated by the flame wars that plague Usenet newsgroups.

I was reminded of this research last night when I realized that a couple of my blogosphere friends thought I was annoyed when in fact I was just kidding around. Maybe I need to use more emoticons! In any case, the episode stands as another example of the efficiency of Delaware corporate law - and the value of friendship.

A Lord of the Rings Anachronism

In the extended version of The Two Towers DVD, after the battle of Helm's Deep, there is a new dialogue scene between Legolas and Gimli. Gimli is sitting on the body of an Uruk-hai, peacefully smoking a pipe, with his axe still sticking out of the Uruk's head, when Legolas comes up smugly stroking his bow:

Legolas: "Final count...42."
Gimli: "42! Oh, that's not bad for a pointy-eared elvish princling. I myself am sitting pretty on 43."

Legolas shoots an arrow into the Uruk-hai on whose body Gimli is sitting - right between Gimli's legs and narrowly missing his you know what.

Legolas: "43."
Gimli: "He was already dead."
Legolas: "He was twitching."
Gimli: "He was twitching...because he's got my axe imbedded in his nervous system!"

How does Gimli know anything about a nervous system? It was Galen who figured out that the brain and spinal column controlled the nervous system. Did Middle-Earth's medical knowledge come up to the standards of Galen? And, even if it did, would a dwarf know it? This incident, of course, is nowhere near as glaring an anachronism as Legolas' shieldboarding during the battle of Helm's Deep or the dwarf-tossing references in both FotR and TTT. But I was wondering about it (instead of working) and decided no thought should go unblogged.

Competition versus Politics

Daniel Henninger is fast becoming my favorite WSJ columnist. In today's column (available free at OpinionJournal), Henninger observes:

"What we will not tolerate is the Republican efforts to privatize Medicare." That was the voice of Sen. Ted Kennedy, announcing a no-compete clause for all of Medicare amid the recent debate. It is the voice of the modern Democratic Party, which when you stand back and take a long look, appears not to want to compete at much of anything these days, other than winning the presidency. But even here the people running for the Democratic presidential nomination seem mostly intent on signing up the whole country to a non-compete clause. Medicare, the public schools, trade, affirmative action, the environment, even the federal judiciary--persons of competitive or entrepreneurial instincts need not apply....

For decades, the Democrats kept their party's ideological seesaw balanced at one end with socialists and the other with Wall Street admirers of government's promise, such as Felix Rohatyn, Robert Rubin and Cyrus Vance. Of late, however, the party has increasingly sounded as if it's become psychologically alienated from the private sector.

As they say, go read the whole thing.

Joe Lieberman, Lost Causes, and Sunk Costs

I'm always puzzled by dead enders - people who pursure lost causes way beyond the point of rationality. The South's last real chance to secure its independence was for Lincoln to lose the election of 1864. So why did they keep fighting for months after Lincoln won? Surely the Wehrmacht knew it was licked after D-Day and Stalingrad, but why did they keep fighting? One guess would fear of the Gestapo, as per the bomb plot, but there were a lot more Wehrmacht troops than Gestapo. So I don't get it. All of which leads me to my present day point. According to the latest Zogby poll, Joe Lieberman is sitting at 7% support in New Hampshire and only 2% in Iowa. Worse yet, according to an American Research Group poll, Lieberman is viewed unfavorably by 38% of New Hampshire voters. Only Al Sharpton has a worse unfavorable rating (46%). Finally, to the extent Lieberman had a Southern strategy, it's worth noting that, according to Zogby, he has gone from leading in South Carolina to being tied for second with Wesley Clark behind Howard Dean. A dispassionate analysis suggests that Lieberman's prospects are essentially zilch. The rational thing to do would be to quit. If Joe Lieberman is saying to himself, "well, we've already spent so much time and effort on it, we have to keep going to justify those expenditures," he is making a classic economic mistake. The relevant economic concept is sunk costs:

When what is done cannot be undone. Sunk costs are costs that have been incurred and cannot be reversed, for example, spending on ADVERTISING or researching a product idea.

The rational decisionmaker does not factor sunk costs into his analysis. When I lived in Illinois, I had season tickets to UI football. Inevitably, the last game of the year would be played in lousy weather - snow or sleet or something likewise awful. (Boy, I don't miss that stuff.) I would propose staying home instead of going to the game. The good wife would insist that we should go because we had paid for the tickets. And I would explain sunk costs: We had already paid for the tickets. We could not get our money back. The sole question was whether the utility of going to the game outweighed the utility of not freezing to death. The cost of the tickets was irrelevant to that calculus. (The good wife grasped this concept quite easily, being a smart cookie, and not infrequently uses it for her own nefarious purposes.) The time and effort Joe Lieberman has put into his campaign are sunk. If he is a rational decisionmaker, they will not affect his decision. And, I'm afraid, it looks like the rational choice here is to stop throwing good money, time, and effort after bad. Of course, Lieberman might not be thinking about the problem in sunk cost terms at all. Maybe he is telling himself "hope springs eternal." If so, however, he is being irrational in the face of strong evidence that, as Eomer put it in The Two Towers, "do not trust to hope, it has forsaken these lands." Or perhaps he is saying to himself, "I'm still going to win." If so, however, he's just nuts. PS: Don't even get me started on Carol Mosley Braun, Dennis Kucinich, or Al Sharpton! UPDATE: Steve Verdon offers three reasons why Lieberman might be acting rationally, the most plausible (IMHO) of which is that he's angling for another shot at being Veep. But even that would be curious. Why run again for the job John Nance Garner famously said was "not worth a warm bucket of spit"? It can't be in hopes of using the VP slot for a future run for president. Besides the poor track record of VPs, Lieberman was born in 1942. If elected VP in 2004 and relected in 2008, he would be 70 when running in 2012, which is pretty old to be running for President, Reagan notwithstanding.

A poor choice of words

On a listserve to which I subscribe, it was reported that former President Jimmy Carter made an unfortunate choice of words in discussing his Middle Eastern peace efforts with the NY Times:

"Had I been elected to a second term, with the prestige and authority and influence and reputation I had in the region, we could have moved to a final solution," he said.

Creepy. It's easy enough to make such a mistake to make when speaking extemporaneously, of course, but it nevertheless strikes me as being in bad taste. Especially because Carter said it in the course of patting himself on the back for being such a great diplomat!

Christmas is Coming

I still can't decide which action figure I want for Christmas: Ann Coulter or Hugh Hewitt.

Eugene Volokh on Locke v. Davey

My friend and colleague Eugene Volokh has a thoughtful rebuttal of some new silliniess by Slate's Dahlia Lithwick, who claims (as Eugene paraphrases her) that "discriminating against religious participants in generally available programs 'the only means of avoiding a theocracy.'" Money quote from Eugene:

Equal treatment of people and programs, without regard for whether they are religious or secular, is not theocracy. Discrimination against the religious is not required to prevent theocracy, any more than discrimination against the secular is required to prevent atheocracy.

I would add that much of the media is spinning Locke v. Davey as a conflict between the free exercise and establishment clauses of the First Amendment. It is not, however. In denying Davey his scholarship, Washington relied not on its free exercise clause but on its version of the infamous Blaine amendment. As Justice Thomas explained in his Mitchell v. Helms opinion (530 U.S. 793 (2000)), the state Blaine amendments were not intended to prevent establishment of religion, they were intended to discriminate against a particular religion - i.e., Catholicism:

[H]ostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. … Opposition to aid to “sectarian” schools acquired prominence in the 1870s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the Amendment arose at a time of considerable hostility to the Catholic Church and to Catholics in general … (Id. at 828.)

The irony, of course, is that while the Blaine amendments were motivated by anti-Catholic bigotry on the part of the Protestant elites of the day, they are now being used to discriminate against all religions, not just Catholicism. Yet, given the debate over school vouchers, and the important role Catholic schools likely would play in any nondiscriminatory voucher system, the Blaine amendments still have a strongly anti-Catholic effect. In employment law, we might call that discriminatory impact. As Justice Thomas so eloquently put it, the time has long since come to “disavow” the “shameful pedigree” of the Blaine amendments. UPDATE: For more good analyses, see Walloworld, John Rosenberg and Matt Evans.