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

Review: Faith and Treason

Faith and Treason: The Story of the Gunpowder Plot by Lady Antonia Fraser: Few tales better illustrate the old saw, "truth is stranger than fiction," than the story of the Gunpowder Plot. In 1605, Catholic militants disappointed by James I's failure to move towards toleration (allegedly) tried to blow up Parliament by piling gunpowder in a basement. The (purported) plot was discovered in the nick of time. England still celebrates Guy Fawkes' Day to celebrate the failure of the Gunpowder Plot and, among other things, Beefeaters still search the basements of Westminster (in full regalia, no less).

Hand-to-hand combat in science fiction

Gregg Easterbrook has an excellent comment (inspired by Matrix Revolutions) on the absurdity of hand-to-hand combat in science fiction (here). Frank Herbert's Dune "solved" Easterbrook's problem by positing personal force fields that could be penetrated only by slow moving swords, which never seemed very compelling. Robert Heinlein's Starship Troopers (the book, not the awful movie) solved the problem with powered battle armor. The science fiction novels that would most likely satisfy Easterbrook, however, are Keith Laumer's Bolo series. The Bolo series revolved around robotic tanks with full AI. The Bolo tanks thus satisfy Easterbrook's projection:

Won't remote-controlled devices assume such chores in the future? The United States military is, after all, already working on conversion to automated weapons for many purposes. DARPA's X45 remote-piloted aircraft, slated for first flight soon, may replace manned fighter-bombers for many missions. The Future Combat System ... will use remote-controlled mini-tanks and mini-helicopters to stage parts of land warfare, keeping people far from the places where weapons are discharging. Presumably if the Pentagon already is close to having this stuff, future beings able to build antigravity devices or faster-than-light starcruisers will have it too.

That's exactly what the Bolo tanks offer.

From the self-promotion department

In her article Materiality Guidance in the Context of Insider Trading: A Call for Action (Westlaw sub. req'd), Tennessee law prof Joan MacLeod Heminway writes:

Recent corporate scandals involving Enron Corp., Global Crossing Ltd., Tyco International Ltd., and WorldCom Inc. (among others) have focused regulatory, media, and overall public attention on corporate and individual securities fraud, including insider trading. This focus is driving a new, fast-moving, aggressive regulatory agenda¹ consisting principally of proposed changes to public company accounting practices, corporate governance, and federal securities regulation and fraud enforcement.

¹The agenda to date has included, among other things, the adoption by Congress of the Sarbanes-Oxley Act of 2002, ... and a series of regulatory initiatives at the U.S. Securities and Exchange Commission ("SEC"). ... Interestingly, Professor Stephen Bainbridge predicted this phenomenon with uncanny accuracy, some might say, in 2000. See Stephen M. Bainbridge, Mandatory Disclosure: A Behavioral Analysis, 68 U. Cin. L. Rev. 1023, 1058 n.169 (2000) ("[A] few well-publicized securities fraud cases could result in the adoption of onerous securities regulation even if the vast majority of corporate managers are honest and trustworthy.").

I like that: "uncanny accuracy." Now all I need is for her to walk down the hall and bug her colleague Glenn Reynolds into listing me on his blogroll. A free version of the paper she cites can be downloaded HERE. And, on a serious note, Prof. Heminway’s article is well worth reading in its own right. (Unfortunately, I couldn't find it on SSRN, so the Westlaw link is all I have.)

Schumerism

Brian Anderson's column in today's WSJ (sub. req'd) On Senator Charles Schumer's obstructionism is required reading for anyone following the judicial confirmation battles in the Senate:

For two years, Sen. Schumer has waged a campaign to subvert the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the Senate, in its confirmation of judges, has relied on principles laid down by Alexander Hamilton in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of law -- terms on which President Bush's picks, Ms. Brown included, pass with high marks. But instead of Hamiltonian standards, Mr. Schumer insists that senators must make a judge's "ideology" their principal concern. By this he means the judge's private political opinions, as well as the political results his decisions have led to in past cases and could lead to in the future. Judges whose views on affirmative action and abortion are outside the "mainstream" should be disqualified from sitting on the federal bench, regardless of competence. As for the definition of "mainstream," Schumerism simply holds that conservative are, ipso facto, "extremist."

Schumerism is now the regnant jurisprudential philosophy among Senate Democrats. Indeed, a candidate for the Democratic presidential nomination, John Kerry, has said he'll filibuster any Supreme Court nominees who wouldn't uphold abortion rights or "laws protecting workers and the environment." This partisanship goes beyond anything the Democrats have asserted in earlier judicial battles. In defeating the Supreme Court nomination of Robert Bork and in trying to defeat Clarence Thomas, the Democrats still felt constrained by Senate tradition to argue against confirmation primarily on grounds of temperament and integrity.

No longer. They justify the filibuster of Priscilla Owen because she argued in one case that parents should play a role in the decision-making process for their minor daughter's quest for an abortion. Most Americans support parental notification laws for abortion; yet any judge willing to contemplate any limitation on abortion at any time is a "right-wing extremist." Miguel Estrada was filibusterable because he's reputed to be conservative in his political views (as if many Americans didn't share similar values). And in justifying opposition to Ms. Brown, Mr. Schumer described her as an "out-of-the-mainstream activist of the first order," even though she won nearly 80% of the vote in her last election and frequently writes the majority opinion in California Supreme Court decisions.

Action item: You can call Senator Schumer at 202-224-6542 to let him know what you think. Or email him via this web form.

Crooked Timber on Janice Rogers Brown

Kieran Healy at Crooked Timber is yet another left-liberal blogger taking Justice Janice Rogers Brown to task for the speech she gave in April 2000 to the University of Chicago law school Federalist Society chapter. Once again, my take is that Justice Brown offers up a lot of red meat for her audience of conservative/libertarian law students, but that nothing she says is so far out of the mainstream of American legal and political thought as to be disqualifying. Kieran's post quotes selections from Brown's speech followed by commentary. In my post below, I've excerpted the meat of his post and interspersed my own commentary. Justice Brown's comments are, appropriately, in brown. Kieran's are in red. Mine are in the usual attractive black.

Expanding my mututal fund horizons

Since I've been thinking about further diverisfying my investments, I've been doing some mutual fund research. In the course of that research, I have stumbled upon two very interesting, albeit diametrically opposed funds:

1. The Ave Maria Mutual Fund Family, whose website states:

   The Ave Maria Mutual Funds are designed specifically for morally responsible investors who are looking for financially sound investments in companies that do not violate the core teachings of the Catholic Church.

   Their latest shareholder report states:

   For the quarter ended June 30, 2003, the Fund was up 19.6% vs. 15.4% for the S&P 500. For the first six months of 2003, Ave Maria Catholic Values Fund was up 12.1% vs. 11.7% for the S&P 500.

2. The Vice Fund, whose prospectus unabashedly proclaims:

   We select securities of companies using a two-part test: (1) First, we look for companies that derive a significant portion of their revenues from products often considered socially irresponsible, and (2) Then we select companies from this group based on their financial soundness and potential for growth. For the first part of the test, we select companies that have significant involvement in, or derive a substantial portion of their revenues from, industries such as tobacco, gambling, defense/weapons and liquor. By “significant” or “substantial portion,” we mean a minimum of approximately 25% of the company’s revenues. It is our philosophy that although often considered politically incorrect, these and similar industries and products will always be supported and/or consumed and that companies in these industries, if managed correctly, will continue to experience significant capital appreciation during good and bad markets. We consider these industries to be nearly “recession-proof.”

   Their fund is up almost 32% in the last year (returns here).

Being the Republican Party Reptile Catholic that I am, I'm thinking about investing in both.

Prof. Froomkin on Janice Rogers Brown

Prof. Michael Froomkin of the always interesting Discourse.Net blog has concluded that California supreme court Justice Janice Rigers Brown "is so far outside of the mainstream that [she] really shouldn’t be a federal judge." As evidence, he offers an extended selection of excerpts from a speech by Justice Brown. What we have here is not a failure to communicate so much as an eye of the beholder problem. What Prof. Froomkin apparently sees as disqualifying, I see as colorful polemics, at worst. Below I offer Prof. Froomkin's chosen excerpts with commentary, which will probably ensure my disqualification from the federal bench or, perhaps a more likely possibility (albeit still slim), the SEC:

Buffett v. WSJ

In today's WSJ letters section, famed investor Warren Buffett and the WSJ face off. (WSJ sub. req'd, but available free at Bershire Hathaway's site.^*) You may remember that during the recall campsign, Buffett said somethings widely interpreted as advocating an increase in property taxes and/or repeal of Prop 13. Much of the furor was based on a WSJ interview, headlined "Buffett suggests property taxes aren't high enough in California." (Buffett makes clear he waited until now to respond so as to avoid further affecting the election.) Buffett makes a strong case that the Journal took him out of context. According to Buffett, during the interview he made two major points:

1. Residential property taxes in California are wildly capricious, tied as they are to the date of purchase rather than the value of the property or financial circumstances of the owner.
2. In the case of properties that a homeowner has held for a long time, residential property tax rates in Omaha are far higher than in California.

As the Journal now acknowledges, they could have done more to highlight Buffett's second point:

Mr. Buffett did make the other point that his letter emphasizes, that of the sharp disparity in tax rates between the levies on one California property that he had bought many years ago vs. those on a nearby property that he had bought more recently. This additional point was interesting and might well have been included in the story in detail. Instead, it was referred to only briefly.

Here's what I think: (1) Buffett was taken out of context. (2) Buffett's second point is a legitimate one, well worth discussing in the public arena. Prop 13 clearly does favor those homeowners who stay in one home for a very long time. It therefore does produce disparities of the sort Buffett identified, in which your tax bill is based on when you bought your property rather than its current value. Reasonable people can differ as to whether this aspect of Prop 13 is sound policy or a source of unfair inequities (or both). I tend to think it is a good idea. It dampens real estate bubbles by creating disincentives for trading up and promotes neighborhood stability that, in turn, may promote a greater sense of community (something we in Southern California can always use more of). (3) We will never get a proper discussion of these issues, because Prop 13 is the third rail of California politics. (4) Here is the key point: Even when his remarks are given their full context, it remains almost certain that Buffett intended to address the disparity in taxation under Prop 13 in a way that increased property tax revenues. Indeed, in his otherwise detailed response, Buffett nowhere claims that he contemplated eliminating the alleged inequities in a way that either cut total property tax revenue or, at least, was revenue neutral. ^* Query whether Buffett should be using a corporate website -- and thus, in a sense, shareholder resources -- to conduct a personal grudge match with the WSJ. Use of corporate resources for personal purposes, after all, is what Tyco's Kozlowski is charged with.