Sunday, May 29, 2005

Australian hottie gets twenty years...

Like lots of others, I’m not too happy about the Corby case. But I think most of the complaints from Australia have been misdirected. The problem is not with the trial which, while not as procedurally tight as the Australian equivalent, seemed basically fair[2] to me. The real problem is with the sentence. The likely imposition of the death penalty on the Bali heroin smugglers is even worse.

The reason that attention hasn’t been focused on this issue is that, as a society, we’re fairly hypocritical about the war on drugs. At one level, we recognise that it’s essentially pointless and unwinnable, like most wars. So we’ve gradually backed away from lengthy prison sentences for bit players, and even abandoned the idea that the capture of a few “Mr Big Enoughs” would make any real difference. But it’s still convenient for us that our neighbours should have draconian laws, the burden of which falls mainly on their own citizens. It’s only when a sympathetic figure like Corby gets 20 years for an offence that might have drawn a good behavior bond in Australia, or when some stupid young people end up facing a firing squad that the contradictions are exposed.

fn1. This isn’t as unlikely as it might sound. There’s a big demand among European and Australian tourists in Bali for the type of marijuana in question, and buying from local suppliers is very risky.

fn2. That is, as fair as other drugs trials. The nature of the war on drugs is that normal legal principles have to be suspended if the law is going to be made to work at all. The routine use of procedures bordering on entrapment, and the effective reversal of the onus of proof, once possession is established, are examples of this, in Australia just as much as in Indonesia.
There isn't much question in my mind that twenty years for possession of a few kilos of marijuana is a draconian sentence. Of course, I don't believe marijuana should be illegal. But that's a foregone conclusion and I can't really take people seriously who think that way. If I can go into a bar and knock back something akin to gasoline that kills tens of thousands of people every year, there isn't much doubt we should legalize pot.

The real question is the footnote four. This "scholar" apparently thinks that "normal legal principles have to be suspended if the law is going to be made to work"...apparently, if I am understanding this, under Australian law the burden of proof shifts to the offendor if they are caught in possession.

It's one of those moments where you realize that as much as people complain about the erosion of rights here in the US, there are things we have that nobody else has. I don't understand a civilized society in which your are guilty until proven innocent. I think the Australian conservatives should think about that in between beers.

Friday, May 27, 2005

Get your priorities straight here, people!

"The defilement of our holy book is outrageous because we consider it to be the word of God," thundered Asiya Andrabi, head of the women's group Daughters of the Community, through her veil. "Guantanamo Bay is a cage. It is not a prison."

More than 15,000 people took to the streets of Pakistan's largest cities. A demonstration in the capital of Islamabad began in a tense atmosphere, just hours after a bomb at a Muslim shrine killed at least 20 people at an annual celebration. The motive for the suspected suicide bombing was not immediately clear.

"We condemn sacrilege of the Quran by U.S. extremists," read one banner draped across a bus while protest leaders chanted into loudspeakers during a rally of at least 2,000 in Islamabad.

So let's get this straight. A bomb goes off in a mosque killing twenty people in their midst and the demonstration over the Koran being flushed down a toilet (not a likely scenario, let's face it, unless the prisoners have some kind of super toilet)continues?

See christopher hitchens article in slate on this subject..

Thursday, May 26, 2005


The latest news is that Zarqawi, the face of Islamist terror in Iraq and Al Qaeda's go-to guy has been wounded. I'm instantly skeptical of such news since much of the war on terror is a war of propaganda. If he survives, he will of course be a legend who has returned from the edge of death, thus adding to the mystique of this Jihadist.

Since the Islamist movement is by nature a romantic cult of suicide and death, there is little doubt that such a spin could be helpful in enlisting more Iraqis and more Saudis, as well as other foreigners who continue to be drawn to Iraq.

He could conceivably be wounded though, I will admit.

In any case, the only real solution in Iraq is a political one in which a government of whatever kind is able to install a stable state apparatus.

The nature of the insurgency is an important lesson on Arab tribalism in the mideast. Tom Friedman points out the "hama rules" in relation to Syria's crushing of the Muslim brotherhood.

While the conflict in Palestine sits front and center (in large part because of Arab resistance to secular encroachment, racism, European anti-semitism and the efforts of the Jurassic left to use the "imperialism" template on yet another conflict) most people are not aware that Syria, in a single day, killed between ten and twenty thousand people by leveling the city of Hama with artillery, then bulldozing the town.

Syria, needless to say, has had no problem with insurgents.

It also explains the brutality of Hussein's regime. Was Hussein a reflection of the tribal culture of the mideast filtered through baathism and Stalinism? Given the murderous nature of the insurgency, it appears to be so. In the history of the world, there are very few examples of the kind of terrorism we see now, and we must face the fact that Islam is used as their excuse. The targets are women, children, old people...innocent people at prayer or in their homes, flying on airplanes are riding trains...this is an enemy that I think rightly belongs among the worst the world has ever seen. When Hitchens says that the Viet Cong were downright civilized compared to these people, I think he's right. And when Brad DeLong tries to mock Hitchens for such a comparison, you wonder if he is watching the same exploding ice-cream stores and coffeeshops we are.

I would bet Syria could stabilize Iraq.

Tuesday, May 24, 2005

From the bubble camp part two...

People say you should never ask a barber if you need a haircut. Should you ask a realtor if you need to buy a house? April prices for homes and sales are hotter than ever, which support the bubble argument further. But the real estate industry is unconvinced. Or is it just that there is nothing in it for them to say otherwise?
Found on

Housing Bubble
... Molony 202-383-1177 Housing Groups Refute Housing "Bubble,"
Laud Greenspan Testimony WASHINGTON (July 19, 2002)?Federal Reserve Board ...

Housing Groups Refute Housing 'Bubble,' Laud Greenspan ...
... Housing Groups Refute Housing 'Bubble,' Laud Greenspan Testimony WASHINGTON (July
19, 2002)?Federal Reserve Board Chairman Alan Greenspan's testimony before ...

Industry Watch: Housing Starts Soar
... Law Challenged US Office Market Slumps Strong Home Prices, No Bubble, Building boom
Housing Starts Soar Construction makes its biggest gains in seven years. BY ...

Industry Watch: Strong Home Prices, No Bubble
... Federal Reserve Chairman Alan Greenspan discounted the possibility of a "housing
bubble" artificially inflating home prices, during recent testimony to the ...

Industry Watch: Price Bubble Won't Burst
... says study. BY TOM DOOLEY If you've been worrying about the housing price bubble
bursting, you can relax, says a report from Harvard University's Joint Center ...

Industry Watch: No Bubble, Says Fed Governor
... Community Bankers of America, noting that "There's little risk of a US housing
bubble, even though it's unreasonable to expect home prices to repeat their 7 ...

July News Releases
... of the exclusive Realtor® Platinum Visa® card. Housing Groups Refute Housing "Bubble,"
Laud Greenspan Testimony (7/22) "The nation's home builders have said ...

Industry Watch: Bubble? Forget it!
... to support housing growth, say economists. BY TOM DOOLEY "A housing bubble about
to burst!!" Don't bet on it! That's the word from CNN/Money, which has noted ...

Industry Watch: Homebuilding Booms Until 2020
... the major concern for the real estate industry shouldn't be a housing "bubble,"
which he considers unlikely, but a widening gap between housing "haves" and ...

Industry Watch: Housing Stock Value Exceeds $12.2 Trillion
... by Dooley: Return to Recession Unlikely Homebuyer's Interest Grows Price Bubble
Won't Burst Housing Starts Soar, Fed takes stock Housing Stock Value Exceeds ...

From the bubble camp part two...

"Existing homes were sold in April at the fastest pace in history as the nation's red-hot housing market just kept getting hotter.

The National Association of Realtors reported Tuesday that existing single-family homes and condominiums were sold at a seasonally adjusted rate of 7.18 million units last month, a gain of 4.5 percent from a revised March sales pace of 6.87 million units."

This comes from yahoo news, and the article admits this raises fears of the housing bubble a little higher and provides evidence that people are moving into the market for speculative reasons. Seeing a link from "" I couldn't help but wonder what they had to say. I know that you should never ask a barber if you need a haircut, or ask a realtor if you need to buy a house, but just to measure how even-handed they would be, I perused some articles. I found the following:

Found on

"Housing Bubble
... Molony 202-383-1177 Housing Groups Refute Housing "Bubble,"
Laud Greenspan Testimony WASHINGTON (July 19, 2002)?Federal Reserve Board ...

Housing Groups Refute Housing 'Bubble,' Laud Greenspan ...
... Housing Groups Refute Housing 'Bubble,' Laud Greenspan Testimony WASHINGTON (July
19, 2002)?Federal Reserve Board Chairman Alan Greenspan's testimony before ...

Industry Watch: Housing Starts Soar
... Law Challenged US Office Market Slumps Strong Home Prices, No Bubble, Building boom
Housing Starts Soar Construction makes its biggest gains in seven years. BY ...

Industry Watch: Strong Home Prices, No Bubble
... Federal Reserve Chairman Alan Greenspan discounted the possibility of a "housing
bubble" artificially inflating home prices, during recent testimony to the ...

Industry Watch: Price Bubble Won't Burst
... says study. BY TOM DOOLEY If you've been worrying about the housing price bubble
bursting, you can relax, says a report from Harvard University's Joint Center ...

Industry Watch: No Bubble, Says Fed Governor
... Community Bankers of America, noting that "There's little risk of a US housing
bubble, even though it's unreasonable to expect home prices to repeat their 7 ...

July News Releases
... of the exclusive Realtor® Platinum Visa® card. Housing Groups Refute Housing "Bubble,"
Laud Greenspan Testimony (7/22) "The nation's home builders have said ...

Industry Watch: Bubble? Forget it!
... to support housing growth, say economists. BY TOM DOOLEY "A housing bubble about
to burst!!" Don't bet on it! That's the word from CNN/Money, which has noted ...

Industry Watch: Homebuilding Booms Until 2020
... the major concern for the real estate industry shouldn't be a housing "bubble,"
which he considers unlikely, but a widening gap between housing "haves" and ...

Industry Watch: Housing Stock Value Exceeds $12.2 Trillion
... by Dooley: Return to Recession Unlikely Homebuyer's Interest Grows Price Bubble
Won't Burst Housing Starts Soar, Fed takes stock Housing Stock Value Exceeds ..."

Somehow I'm not surprised...or impressed by their objectivity.

The bad seed...

The young man who stomped and beat a young girl to death when he was twelve has now been arrested for armed robbery while out on parole for this evil crime.

This raises the usual debate about what to do with juveniles. Conservatives say lock them up. Liberals say set them free after a few years of detention. Is it nature or nurture? Perhaps a little of both?

After about ten years in the classroom I have come to view efforts to reform kids who are violent and dangerous differently. Everybody wants to believe in second chances. Everyone wants to believe there are things we can fix. But from personal experience, I can only say that most of kids understand quite well what they are doing, and make conscious choices. Perhaps there is something to be said for Arendt's thesis after all. There is a certain ordinariness of evil that I used to see on a daily basis. There were always a few kids who would laugh at a particularly bloody moment during a movie, and that would disturb me deeply. What happens to people in the urban environment that this evil laughter can be looked upon as honorable?

The point of view I can only take is that of a victim, and I don't believe most of these kids should be given a second chance any more than most of these felons should be. The rates of recidivisim are high enough to call into question how safe we are on the streets.

That brutal murderer should have never been let out again. The pizza guy is lucky he is alive.

The left-behind law school

There have been two programs on npr or kqed radio lately that caught my ear; the above link talks about the Christian law schools Pat Robertson has been funding in an attempt to grab power from the secular institutions. The blogger above doesn't see them as a threat, and articulates a sound argument; but I'm not as convinced about the inertia of the common law and case precedent, which he explains will prevent many of them from pulling off what they want.

Their revisionist history holds that American law is founded upon Christian ideals enumerated in the declaration of independence. Of course, in order for them to believe this, they must first ignore the more important document, the constitution, and in particular the first amendment. Their goal, which is exactly the same as the muslim religious fanatics we are presently at war with, is a society in which religion and government are NOT separate. Lost upon them is the several hundred years of bloody religious warfare that produced the concept of separating church and state.

Apparently these recent attempts by the Christian right are a move away from their former position of predicting the end of the world, now picked up by the idiotic authors of the "left behind" series who are making millions off this low-brow fear-mongering cult. We even have a popular television show based upon this concept.

Unfortunately, Pat Robertson, who was big on the rapture in the seventies, and 'interpreting' religious texts or whatever to predict the end of the world in relation to the mideast situation (because apparently when a conflict appears in that part of the world, it MEANS something, since after all, there is such a shortage of conflicts in the mideast), realized he couldn't make inroads into the government if the end of the world was coming. Hence the change in strategy.

I know enough about the law to know how easily it can be twisted to say something according to the beliefs of the judge. Witness Clarence Thomas and the brilliant Scalia in operation. The law works like this; you find a conclusion and work your way backward to prove it. Logicians are in large part shocked by this. Not only that, we reason by analogy, another really illogical way of approaching a problem. But this is the way philosophy and practice often intersect. If anyone has a better idea, let me know.

That being said, I can pretty much guarantee most of those lawyers are going to be laughed out of the courtroom. They may make inroads as legislators or politicians, but as for being lawyers, I would imagine they will end up drug addicts, suicidal, or addicted to greed and money like most of them. I do not believe that you can bring your personal convictions to the courtroom unless they somewhat match the system.

I'm of the opinion that the worst lawyers are those who are more concerned with being right or showing they are smart than figuring out what is going on. Your emotions will cloud your judgment; you will ignore the weakness of your argument if you are convinced of it's morality. But the law isn't like it is on television. You won't see lawyers making arguments that go like this "It's wrong and I think it's bad because people shouldn't do that!"

I get a wince factor of about 8 every time I see those shows.

Arguments based on public policy are woven together with case law, precedent, and statutory authority. They don't sit out there by themselves. It makes bad drama but good law. Good drama bears little, if any relationship to what is actually happening.

If you are a public defender, you can convince yourself that you are defending this child molestor because you are really defending the constitution. Protecting that kiddie molestor and making sure he goes down by the numbers will also make sure the police don't put away innocent people (which if you can believe it, actually happens...and some of them get executed).

But being a fundie, what hope do you have? Do they honestly think they are going to pick their clients? Will they represents Jews or Muslims?

They are pretty clearly being trained to work for xtian "thinktanks" (incidentally it turns out Dominos pizza is funding Robertsons' law school) who are bent on destroying secular society and converting us all into devout believers. How much impact they will have remains to be seen. I have a feeling they will be absorbed into the legal mainstream the way the Mongols were absorbed by the Chinese. After a generation there were no mongols. After a generation there will be no fundie lawyers.

Monday, May 23, 2005

School violence and free speech

LOS ANGELES, California (AP) -- Student journalists sued their Bakersfield high school district Thursday in an effort to keep the school's principal from censoring student newspaper articles on homosexuality.

The suit, filed by the American Civil Liberties Union, requests an emergency order to allow the paper to publish the stories in The Kernal's year-end May 27 issue.

"The Kernal staff, along with the gay students we interviewed, we have lost our voices," said the paper's editor in chief, Joel Paramo, a plaintiff in the case filed in Kern County court.

East Bakersfield High School Principal John Gibson said he blocked publication because he is worried about violence on campus.

"It's not about gay and lesbians. It's about student safety," he said.

Paramo, however, said the principal's decision "regrettably sends the unmistakable message that school officials would rather students keep closeted about their sexual orientation."

California's education code allows schools to censor student publications if articles are obscene, libelous or slanderous, or incite students "as to create a clear and present danger."
This raises an interesting issue. How is it that we tolerate the level of violence at our schools that gay and lesbian students are in danger for the crime of existing? Assuming the principal isn't homophobic, and is honestly telling the truth, doesn't the ACLU have a much bigger problem? Having taught at a rather violent school, I can honestly say that the level of bigotry at urban schools which are seen as "multicultural" is as bad as it gets. These students have no qualms about expressing their hatred of certain groups. There was a gay teacher at the school I taught at, and the abuse was just incredible to behold.

"Gay and straight students alike report that teachers regularly ignore and do nothing to intervene in cases of verbal and physical harassment of lesbian or gay students. (Lenskyj, 1990)

Studies reveal that lesbian, gay and bisexual youth continue to be victimized in schools and are five times more likely to attempt suicide than their heterosexual peers. (Gibson, 1989) Children who nobody suspects are gay may also be suffering the effects of homophobic violence in ways just as devastating as those may who are physically attacked or verbally harassed."Gay and straight students alike report that teachers regularly ignore and do nothing to intervene in cases of verbal and physical harassment of lesbian or gay students. (Lenskyj, 1990)
ysically attacked or verbally harassed.

Bus driver on video

A bus driver in Florida has been charged with misdemeanor assault and the two kids who attacked him with felonies. Knowing what I know about the school system, there must have been pretty good evidence the bus driver was attacked. Schools instinctively protect out of control kids out of fears of lawsuits and the parents.

I was a school teacher for ten years. I was actually almost arrested once for protecting myself from a student who attacked me after I broke up a fight between her and another girl. In a moment of ingenuity, the girl acted unconscious. She later bragged that she couldn't get in any more fights at school because she "wouldn't get the money". The NAACP's Frank Jackson, who I now regard as a racist,declared to the school board "A white teacher choked a black student. We at the NAACP demand that he be fired." There was considerable defense of me in the local newspaper as well. It gained quite some notoriety, but I just let it die down and avoided the limelight. Perhaps a mistake at this point.

They knew little, if anything about the violent history of the girl, or my history (I'm actually part Jewish and was a very popular teacher among all the students) or even that the two students fighting were BOTH black.

A local attorney, whose son was a teacher at the school and who was later fired, rumor has it, for sexual harrassing a student, went after me with both barrels, going to the school board and writing newspaper columns. I had, interestingly enough, had a confrontation with his son a few months earlier, who had a habit of flipping out and screaming at people.

There are so many things wrong with public schools it is hard to know where to begin. But the politics sit at the core of it all. Parents are voters. Politicians can scapegoat teachers to make up for flagging test scores, out of control kids, and almost any issue. GOing after parents is not a politically astute move. Hence Gov. Schwarzeneggers' recent attempts to come after the teachers' unions.

This isn't to exhonerate teachers from blame. We are, in large part, a profession that has refused to stand up for itself and catered to all the parents and politicians. You cannot go far in a system like that without selling your soul to the devil. Administrators run their schools not as democratic institutions, but as their little feifdoms. They target those who oppose them, crush the opposition, set up Stalinist rubber stamp committees to create a veneer of shared-decision making, and then do as they please. I have met maybe one or two adminstrators who weren't complete liars.

The kids I have taught know how the law plays out. They threaten and intimated as a rite of passing. They laugh at the concept of beating up teachers and their parents, without really understanding how different their children behave when they are a part of a mob mentality. We have given kids and parents all the wrong power for all the wrong reasons, and now we are paying the price.

It's time to take back our schools from thugs, criminals, and their out of control parents.

Thursday, May 19, 2005

left vs. left and the Iraq body count

One of the more disturbing things about the Iraq war is the amount of spin coming at us from all sides. As a liberal hawk, I'm terribly concerned with civilian casualties as a result of Rumsfelds' incompetence. It is of course relevant to the debate how many innocents die in Iraq. A war to free the nation from a genocidal dictator who isn't committing genocide at the moment which kills a hundred thousand people isn't creating a fantastic net gain, although arguably Hussein has one million four hundred thousand more points in that game.

The real debate sits between two left-wing sources; and the lancet study out of John Hopkins University. Iraqbodycount claims there have been between twenty and twenty five thousand civilian casualties in the war. There appears to be no breakdown of how many are caused by the insurgency but the bias of that site is clear; murders committed by insurgents are STILL the fault of the US. I'm not big on that argument. The Lancet study claims 100,000 people died....or at least that is what a lot of people think; but on closer inspection it appears to say something different.


100,000 Dead—or 8,000
How many Iraqi civilians have died as a result of the war?
By Fred Kaplan
Posted Friday, Oct. 29, 2004, at 3:49 PM PT

The authors of a peer-reviewed study, conducted by a survey team from Johns Hopkins University, claim that about 100,000 Iraqi civilians have died as a result of the war. Yet a close look at the actual study, published online today by the British medical journal the Lancet, reveals that this number is so loose as to be meaningless.

The report's authors derive this figure by estimating how many Iraqis died in a 14-month period before the U.S. invasion, conducting surveys on how many died in a similar period after the invasion began (more on those surveys later), and subtracting the difference. That difference—the number of "extra" deaths in the post-invasion period—signifies the war's toll. That number is 98,000. But read the passage that cites the calculation more fully:

We estimate there were 98,000 extra deaths (95% CI 8000-194 000) during the post-war period.

Readers who are accustomed to perusing statistical documents know what the set of numbers in the parentheses means. For the other 99.9 percent of you, I'll spell it out in plain English—which, disturbingly, the study never does. It means that the authors are 95 percent confident that the war-caused deaths totaled some number between 8,000 and 194,000. (The number cited in plain language—98,000—is roughly at the halfway point in this absurdly vast range.)

This isn't an estimate. It's a dart board.


Tuesday, May 17, 2005

Booker and Fanfan

The following draft was written by myself and Jennifer Willits regarding sentencing law. I am not incredibly pleased with it but I thought I would put it out there for criticism.

Are you concerned that the government may be interfering with your constitutional right to a trial by jury, with charges proven beyond a reasonable doubt? The U.S. Supreme Court is. In June 2004, the Court decided in Blakely v. Washington that Washington State sentencing guidelines are in violation of a defendant’s Sixth Amendment right to a jury trial. The majority opinion, per Justice Scalia, indicates a strict reading of the constitution. It was clear to the majority that framers intended the jury as an important check on governmental power in order to protect the rights of the individual. Modern sentencing guidelines have required judges to consider evidence that has not been submitted to a jury, and enhance sentences based on a “preponderance of the evidence.” The Blakely case held that this practice is an unconstitutional dilution of the right to a jury trial in criminal cases and the accompanying standard of proof (beyond a reasonable doubt).

The blunt rule in the case left court systems stumbling and directionless with regard to sentencing rules and procedures. Congress scrambled to come up with a legislative response; judges issued multiple rulings in single cases because they were unsure how to proceed in light of the radical holding. The much-anticipated January 2005 case of United States. v. Booker further interpreted the Blakely decision, including application of the rule to the Federal Sentencing Guidelines. In Booker, the Court excised and severed related portions of the U.S. Code.

Judges, attorneys, and other legal professionals were stunned by the unexpected rulings of Blakely and Booker. Professor Douglas Berman, a sentencing law expert said this:

Supreme Court Justice Sandra Day O’Connor’s characterization of Blakely as a “No. 10 earthquake” and noted that at least one government brief…compared the decision to “Godzilla rampaging through Tokyo...” Ultimately, I am not sure any metaphor can do justice to a decision that may be the most consequential and important criminal justice decision, not only of the last term or decade or even of the Rehnquist court, but perhaps in the history of the Supreme Court.

Blakely upended the system without a full explanation, and left many unanswered questions. The answers, or at least some of them, came in the Booker opinion. However, the questions remain: how will the circuit courts interpret and apply Booker and more importantly, how will the Ninth Circuit? How will Congress respond to the Court’s invalidation of statute and the subsequent turmoil in the legal system? This casenote will briefly address unresolved problems raised by the case as a look at what the future may hold.


Over 20 years ago, Congress passed the Sentencing Reform Act of 1984 . Prior to this date, federal judges had broad discretion with regard to sentencing within a wide statutory range. The Act was passed in an effort to avoid disparate sentences for similar crimes and to provide fairness and predictability in sentencing ranges. The Federal Sentencing Commission was formed under the Act, and the commission established a set of mandatory guidelines for the federal judiciary. During the last 25 years, most state courts have also done away with the discretionary sentencing style of the past and adopted their own guidelines, which vary from state to state but follow the ideal of providing certainty in sentencing.

Except for a few minor modifications, the Federal Sentencing Guidelines have remained constant for two decades, withstanding several direct and indirect attacks at the Supreme Court level. The 2000 case Apprendi v. New Jersey questioned the constitutionality of modern sentencing procedure.

In Apprendi, a New Jersey defendant was charged with ________-degree possession of a firearm, a charge that carries a 5 to 10 year sentence. He pled guilty to second-degree possession, but as an additional fact, the court found the crime to be racially motivated. The finding was made by a “preponderance of the evidence.” The defendant was sentenced to 12 years in prison, 2 years beyond the New Jersey statutory maximum. The Supreme Court reversed, holding that findings which may increase the sentence beyond the statutory maximum must be “submitted to a jury and proven beyond a reasonable doubt”.

Apprendi’s impact was also diminished by narrow interpretation in lower courts , and the desire of the legislature and judiciary to preserve the status quo. Four years after Apprendi, the U.S. Supreme Court affirmed the rule from the case in a way that left no room for such narrow interpretation in Blakely.

Ralph Blakely was sentenced to 90 months for kidnapping, 37 months more than the statutory maximum. The enhanced sentence was permitted by Washington State’s sentencing guidelines and justified based on the judge’s finding of “deliberate cruelty.” Blakely appealed on the grounds that this sentencing procedure (similar to numerous guidelines promulgated throughout the US and as well as the Federal guidelines) "deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts essential to his sentence." The US Supreme Court granted certiorari to review this issue.

In an unexpected five-four decision, the Court held per Justice Scalia that the Washington State sentencing guidelines violated the Sixth Amendment right to a jury trial. Citing Apprendi, they followed the rule which stated that "other than the fact of a prior conviction , any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Although the Apprendi rule had been applied in previous cases, it was always limited in its application. This absolute and unqualified rule in Blakely turned twenty years of sentencing reform upside down.

Justice O’Connor pointed out in a prophetic statement in her dissent that the Blakely decision would not be limited to Washington state law, but would clearly affect the Federal Sentencing Guidelines as well. As the January 2005 decision in Booker demonstrates, she was absolutely correct. Booker applied the Blakely decision to Federal law, going so far as to invalidate and excise a portion of the United States Code.


Facts and Procedural History:

Freddie Booker was charged with possession with intent to distribute at least 50 grams of crack (statutory minimum of 10 years prison, life maximum). The jury heard evidence that Booker had 92 grams in his duffel bag, and found him guilty of the charge. Based on the jury’s finding, combined with Booker’s prior criminal history, federal sentencing guidelines required the judge to assign a “base” sentence of 210 months minimum.

In post-trial sentencing proceedings, the judge concluded by a preponderance of the evidence that Booker possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Those findings required the judge to impose a 360 months minimum sentence. The judge sentenced Booker to 30 years (360 months) in prison.

On appeal, the seventh circuit court held the sentence was an unconstitutional violation of Booker’s Sixth Amendment rights, citing the Apprendi rule and relying on the recent Blakely decision. The case was remanded to the District Court with instructions to resentence within the range consistent with jury findings, or hold a separate sentencing hearing before a jury. The Government petitioned the Supreme Court for a writ of certiorari, which was granted, asking the Supreme Court to determine whether the Apprendi line of cases applies to the Federal Sentencing Guidelines, and if so, what portions of the guidelines remain in effect.

Reasoning of the Majority

Justices Stevens delivered the first part of the majority opinion by answering the question as to whether the current sentencing guidelines violate the Sixth Amendment, and held that they do. He affirmed the rule from Blakely “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

There is no significant distinction between Washington State procedure (Blakely) and the Federal Sentencing Guidelines; thus, the rule applies in Federal court as well as state. Both systems are unconstitutional because they impose mandatory guidelines on judges. Justice Stevens explained:

We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U.S. 481; Williams v. New York, 337 U.S. 241, 246 (1940). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges… When a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deemed relevant.

If the guidelines were “merely advisory” a Sixth Amendment violation would be avoided, but current law states “that a court shall impose a sentence of the kind, within the range” established by the Guidelines.

Justice Breyer delivered the second part of the opinion, further clarifying statements made by Stevens as to the application of the rule. The majority found portions of the U.S Code to be incompatible with the Court’s holding, and addressed the question of whether this finding invalidates the Guidelines “as a whole.”

The analysis included a discussion of the probable legislative intent of Congress with regard to sentencing statutes in light of the Court’s holding. Breyer concluded that the Guidelines need not be eliminated entirely, but must be modified:

One approach…would retain the Sentencing Act (and the Guidelines) as written, but would engraft onto the existing system today’s Sixth Amendment “jury trial” requirement. The addition would change the Guidelines by preventing the sentencing court from increasing a sentence on the basis of a fact the jury did not find (or that the offender did not admit.)

The other approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender’s real conduct—a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.

***(discuss reasonableness standard from breyer’s opinion)***


According to Booker, Federal sentencing guidelines are now merely advisory instead of mandatory, and judges retain considerable discretion to sentence using a "reasonableness standard" which some observers have pointed out might end up being a different standard for every circuit.

Many experts believe the Booker decision did little to alleviate the problems and confusion created by Blakely. By allowing each federal circuit to build their own interpretation of the “reasonableness standard” through precedent, the problems Congress sought to avoid in passing the Sentencing Reform Act are perpetuated: disparate sentencing for the same crimes based upon the jurisdiction in which the defendant was charged and convicted.

Thus, the question remains: how will the circuit courts interpret and apply Booker and more importantly, how will the Ninth Circuit? Also, how will Congress respond to the court’s invalidation of statute and the subsequent turmoil in the legal system?

The first question has apparently been addressed in the Ameline case by the Ninth Circuit Court, which held that only "exceptional" cases will withstand the Sixth Amendment challenge issued by Booker. ***(need to discuss exceptional a little more)*** With this holding, the court has cleared the way for a vast number of appeals of prisoners who may now claim they must be resentenced.

The second question is still pending: although Congress initially responded to Blakely with a call for corrective legislation, members of the Sentencing Commission are recommending a “wait and see” approach in the wake of Booker until “it is clear that legislation is absolutely necessary and that any proposed legislation will withstand constitutional scrutiny”.

Monday, May 16, 2005

The Saudi connection...

A lot of political hacks like me have pointed out that it isn't our enemies that represent the real danger; it's our friends. The KSA is one friend in particular that needs to be re-evaluated.

The hijackers on 911 were mostly Saudi. For some reason we ended up invading Iraq. IN all fairness, I haven't a huge moral dilemma with that invasion. I was against it, I thought it was bad idea, but if NOrth Korea was invaded by China, would people be freaking out? Probably not. Politics in this day and age focus more around identity than reality. It isn't an invasion that is the problem; it's an American one.

I'm of the opinion that an invasion of the KSA was more warranted. Here is an insular repressive monarchy where people are executed weekly in public, women are chattle, and where fanatics have free reign to fund terrorists and fanatics. Now we find out that most of the martyrs in Iraq are from the KSA.

This calls into question a little piece of Mike Moores' movie I appreciated. While I don't see the vast conspiracy Moore does, I do believe that the oil industry and the political connections of it create a situation where certain people are balancing our national security against their personal greed. The oil industry is incredibly powerful. What effect would it have upon them to demonstrate their close ties with these corrupt monarchies that encourage terrorism?

All of this rather reminds me of the ENRON debaucle. When you see the power going out in the middle of winter, when demand is only forty percent of capacity, it smells funny. When you see Saudis continue to fill the ranks of terrorists, it's something to take note of. Why are we coddling this pricks?

Sunday, May 15, 2005


The stupidity of muslim religious fanatics has reached yet another high. AS if there wasn't already enough evidence of the tendency of certain people from this religion to flip out over the slightest thing, the news that the Koran was put next to toilets at Guantanomo has caused riots in Afghanistan where people have been killed. My response?

Fuck them. How about if I wipe my ass with the pages of the Koran? How about if I turn it into a pot stash? (too bad I don't smoke out anymore). We are supposed to walk around on eggshells hoping this fuckheads don't flip out over every tiny story that comes their way? They can burn our flag, as you can see here in the article, but no American is going to bother freaking out and running into the street about it. Sure, it pisses us off. If they did it in front of us, there are many who would kick their asses. But a holy book, supposedly sitting next to a toilet half a world away isn't a reason to freak, it is yet another excuse to try to intimidate us.
There are millions of muslims who are simply wound so tight and so deeply ingrained with hatred and bigotry that they are just waiting for any excuse to run into the streets screaming.

Our national flag is deeply important to us. Or perhaps the bodies of our soldiers who were hung from bridges in Fallujah might be seen as sacred to us. Either way, the kind of people who are so easily set off by this incident are the kind of people that deserve to be ridiculed and ignored. There are things in this world that are sacred. A book isn't one of them. The ideas might be, but these ideas cannot be desecrated by anything other than the actions of fools who believe these ideas give them the right to terrorize others.

Thursday, May 12, 2005


I found this lovely little nugget from the Belgravia Dispatch which you can see in totality here:
"My first reaction to the capture of Saddam Hussein was both anger and disgust. Anger with the old dictator who could not even die honourably. He preferred to be captured by his old friends than to go down fighting, the one decent thing he could have done for his country.

I felt no pity for Saddam. He had killed some dear comrades of mine and imprisoned too many others, but the US had no right to do this. It was the responsibility of the Iraqi people.

I also felt disgust with the way in which the TV networks were covering this event. CNN and BBC World had become total propaganda networks, to such an extent that it must have made Berlusconi smile. Parading a captured prisoner in this fashion is the new model of imperialism. The latter-day equivalent of how barbarian chieftains were paraded in ancient Rome, prior to their execution."

Is there any way to describe how oddly this resonates in my ear? Saddam killed his friends, but nobody should have done anything about it? We are to respect the honor of Hussein and Iraq more than our interest in letting the baathists know that they were done for? How does THAT help the innocent iraqi people? This is the same sort of kowtowing to Arab machismo the Tariq Ali corner demands out of fear of the consequences; we are continually being threatened anyway, so how is it that protecting their sensibilities would stave off another WTC massacre?

Printed apparently in "counterpunch" (Alexander Cockburn's shrill, hysterical forum which as I recall commented that "the window of opportunity for proving that the WMD are in Iraq has closed now that Bagdahd airport is open to US airplanes" because they were getting ready to invent a conspiracy story about how if the WMD were found they were planted)this shows how really out to lunch Ali is.


This weeks asshole is none other than a relic of the sixties named Tariq Ali, who I had the distinct displeasure to listen to on the way home last night as a part of some NPR radio show called "mideast matters" or some crap like that. You can read a discussion between him and Christopher Hitchens here:

The first thing that struck me was his obvious, unabashed, and completely unscholarly assertion that " a hundred thousand people have been killed in Iraq". WHile this number tends to be tossed around uncritically, slate did an excellent piece that elaborates on the reality of it. YOu can go to slate and search for it yourself. This study by John Hopkins University in reality went something like this: they are ninety per cent certain that between ten thousand and a hundred thousand people have been killed in Iraq. As the article in slate said, this isn't a number, it's a dart board. I won't even engage in the possibility of hiding one hundred thousand fresh bodies, since Hussein couldn't do it even after ten years.

That doesn't even address the opinions of fellow leftists like those at "iraqbodycount" which measure it at around 20,000. WHy is it, then, that he gives full authority to one source and doesn't even mention the other, whose biases are the same? Because Ali is a tired-ass old fogey, a relic of a bygone era, a mere remnant of a romantic period who continues to view things through the same old lense; "imperialism" and all of the baggage that accompanies it. It really makes me want to wear a beret and go back to SFSU and stand screaming in the square.

Ali calls the Iraq insurgency the "resistance" and claims they are simply related to the original insurgency against the British. He sees them as freedom fighters in the most simplistic terms. He further claims that because the occupation is ugly, then the resistance can't be pretty either. He wants to believe that this resistance is akin to so many others in history; but this resistance appears to be a lot more vicious than any I have seen. I don't recall entire mosques exploding and crowds of people being butchered by the hundreds; more than anything I don't see why the fact that these insurgents are sunni and their victims or shiites doesn't penetrate his thick head. These people are not "freedom fighters" by any measure.

Ali is member of what I call the "michael mooristas" whose anti-Americanism runs so deep that they are willing to defend almost anything and excuse almost anything. Calfornia universities are 0-2 by now. We had Ward Churchill at Berkeley and now Ali at Stanford. Not a great victory for California academics.

Tuesday, May 10, 2005

The great briefing debate...

Case briefing is one of those things that invariably gets debated in law school until the end of law school. Does it help? Is it a waste of time? Is there a better way to learn it? There as many views on the topic as students of the law.

At our law school the evidence class is no longer taught along the format of the case breifing method. The result? People in large part do not like it. This seems to a continual pattern among students of every discipline. They advocate change, but when it comes, they don't like it. They can think of all these better ways to do things, but when given the opportunity, revert to the old ways.

I recall Professor Anthony D'Agostino of SFSU (who I heard pontificating on NPR this morning about the situation in East Europe, his field of expertise) teaching a class on "the sixties" in which he asked us how we wanted to be graded. We allowed him to grade, because frankly, we didn't want to deal with it and we knew we would be harsher on each other than he would be on us.

Here's a link from the orthodox perspective on breifing:

Interestingly enough, the ORIGINAL method used at Harvard was NOT the case briefing method.

All professional schools face the same difficult challenge: how to prepare students for the world of practice. Time in the classroom must somehow translate directly into real-world activity: how to diagnose, decide, and act. A surprisingly wide range of professional schools, including Harvard's law, business, and medical schools, have concluded that the best way to teach these skills is by the case method.

The Law School led the way. A newly appointed dean began to teach with cases in 1870, reversing a long history of lecture and drill. He viewed law as a science and appellate court decisions as the "specimens" from which general principles should be induced, and he assembled a representative set of court decisions to create the first legal casebook. To ensure that class time was used productively, he introduced the question-and-answer format now called the Socratic method.
Making the Case

A footnoted PDF of this article is available.
Click here to download the PDF.

This article includes 1 sidebar.
Click here to read "Casing the Future."

To view video footage from the Levy case, click here.

"The Business School followed 50 years later. Founded in 1908, it did not adopt cases until 1920, when its second dean, a Law School graduate, championed their use. After convincing a marketing professor to create the first business casebook, he then provided funding for a broader program of casewriting, built around real business issues and yet-to-be-made decisions. That program produced cases in multiple fields and their use in virtually all courses by the end of the decade.

The Medical School began using cases only in 1985. All were designed to cement students' understanding of basic science by linking it immediately to practical problems—typically, the case histories of individual patients. These cases formed the foundation of the school's revolutionary "New Pathway" curriculum that shifted students' pre-clinical years away from lectures toward tutorials and active learning.

In each of these professions, Harvard faculty became evangelists for the case method, spreading this educational innovation around the world. Now, through close study of case-method teaching in law, business, and medicine at Harvard, we can see how the technique has been adapted for use in distinct disciplines—and how it might evolve, and be modified, to better meet the needs of twenty-first-century students and teachers."

Thursday, May 05, 2005

Beating that dead horse...

Objective law school exams

Well, it's exam time, so a good time for a post on this subject. Professor Bainbridge posted sample objective (multiple choice/true-false) exam questions last week. That provokes some thoughts on this age-old debate.

I don't give multiple choice exams, and don't think they're the best way to go. Here are some considerations that do not explain my view:

--Students don't like them. Actually, I have no idea. On this and other teaching issues I have to use my judgment.

--It's lazy to give multiple choice. Actually, I'm not sure -- it would be very hard for me to come up with multiple choice questions that are as challenging and fair as Professor Bainbridge's seem to be.

--There are no "right" answers, and multiple choice questions fail to hit the nuances of law. There are better and worse answers and good multiple choice questions can be quite nuanced.

So why do I insist on torturing myself (and my students) with essay exams? One reason:

Good lawyers write and speak clearly and persuasively. While an essay exam can identify the students who know the law as well as an objective exam, it can do something an objective exam cannot do -- identify those students who can recognize distinct legal issues and formulate cogent legal arguments. Teaching these skills is an important objective of law school, and the students who have or learn these skills are the most valuable in the marketplace.

I am especially convinced of the rightness of my approach when, each year, I talk to students about their exams. They are often hard-working and smart students who did worse than they or I expected (blind grading, of course). When I look at the student's exam, I am not surprised -- the answers were there somewhere, but it would have taken Houdini to find them. For the above reasons, such students, in my view, deserves lower grades than those with equal knowledge plus the ability to express it clearly.

But having said all that, I am not entirely convinced. So surely there should be room in law school for all approaches.

Any questions?

So suddenly at least one example dawns on me. It is what I call the "straw man" argument. There are many times issues in law school exams that are non-issues. In other words, in a con law test we looked at in class, a there was some question of whether a student's religious freedom was violated. Actually, there was no question at all, because it was the mother who was religious. The kid wasn't and his actions weren't motivated by it. So I discussed it and moved on.

In my first few years of law school I would have avoided knocking down what I call the "straw man". The really important and interesting questions you should spend time on are where the distinctions are blurred and the facts are incomplete, leaving us to do more analysis than "well it isn't that because of this." Such "straw men" questions can be significant points, and more intelligent students will automatically discount them because they have no net effect upon the power of the argument one way or the other.

While I strenuously object to the "straw man" question, that is the game we play. Forewarned is forearmed.

Law school grading...again...

The controversy over law school grading isn't one I think will ever be adequately resolved since in my opinion there is an inherent subjectivity to the whole system and people make mistakes; big ones. I have only anecdotal evidence at the moment to go by at the moment, and I'm not inclined to even bother with the mathematical analysis offered in the particular debate found here
which I regard as rather befuddled and beside the point.

My recollection from Real Property serves me in this manner. I wrote an answer on the matter of Joint tenancy. My comrade, who is brilliant but reserves the last week of class for actual study, wrote on Landlord Tenant. The Professor, scored his test one point higher than mine, although the issue had very little to do with landlord tenant law. When I met with him, he already had an argument formulated to deal with that issue, though I didn't even call him on it. I personally think that unless I get below a seventy, there is no need to challenge a Professor and make him look like a fool, and since this was only the midterm, I decided to suck it up and just say "what can I do better."

I understood exactly why he was a good lawyer upon listening to his argument because it was utter bullshit yet sounded convincing. He, incidentally, gave us five pages of fact patterns and an eleven page land sale contract with certain sections blacked out, for our final.

The other experience regards a Magnu Cum Laude student who won the appeals process. In this case, the Professor, who is a walking encyclopedia, simply missed an entire blue book.

There are a number of different styles of grading; the most suspect is the "holistic" method, or Connoisseur method, where the Professor leaves nary a mark on the paper, and writes the score on the top. It tastes good, or it tastes bad. Or it tastes okay. The middle kind is the "check marker" who sees certain points and marks them, offers an issue sheet and looks to see how well you covered those. Then there is the "math teacher" who assigns specific points to each issue and checks off each one with a separate score.

I am not yet able to articulate why the mathematical conversations resonate oddly in my ear, but having spent years in the field of history and being familiar with the concept of assigning numbers to essays, (this is where we hear the "law school is different" camp weigh in) I think people who honestly believe in the objectivity of our Professors are both right and wrong.

dismissed law student

I recently ran across an interesting blog on the net entitled "dismissed law student". In all my life I don't think I have ever been more afraid of anything than being dismissed. Presently I am good shape, and the chances are small someone in 4l would get booted, but I no longer have the faith I once had in the objectivity of the Professors or the system. If you walk through a mine field, do you see yourself as a great soldier because you didn't step on a mine? Seven people failed community property last semester. Three of them were Magnu Cum Laude.

In any case, most students are faced with the possibility. That's what makes law school great, in a way. The greater the risks, the greater the rewards.

Not to sound mean or anything, but my reaction to this blog was one of disdain. Sure, it could be me, but here's why: The opening page for April 24, 2005 goes like this:

"The best advice I ever got on the matter was from a friend who has since passed on from cancer.

'You have to go on with your life and do the best that you can.'"

"I'm reapplying to some ABA schools, haven't heard back yet"
So looking around I find out that this student was dismissed almost THREE YEARS AGO!

Wednesday, May 04, 2005


By KATHERINE SHRADER, Associated Press Writer 1 hour, 32 minutes ago

WASHINGTON - The arrest of an al-Qaida operational chief in Pakistan "represents a critical victory in the war on terror,"
President Bush said Wednesday. U.S. counterterrorism officials said the captive almost certainly knows crucial planning details for the terror network.
My response? YEAH RIGHT! It seems like a day doesn't go by that there isn't some major feat by the Bushies in defeating international terror. I wonder if there even IS such a thing as Al Qaeda or if it really matters whether Bin Laden lives or not. The fact remains that disparate individuals operating in closed cells across the world have the same ideology: their version of militant islam demands their suicide and the deaths of all who oppose them until the great Caliphate comes again. Why do they need any leadership at all, when they need only read the writings of Sayyid Al Qutb and become galvanized? Americans, both conservative and liberal, are in denial about the nature of this enemy.
Conservatives are incapable of meeting this enemy in any place other than the battlefield because their ideas are so similiar to the Islamists: the fundamentalists bemoan the secular nature of American and the division of church and state. The Islamists see no greater threat to humanity. Both work toward the elimination of this wall. In their extreme form, fundamentalists in the US shoot and bomb abortion clinics in their battle for the soul of man: fundamentalists from the mideast blow up train stations. Of course the fundamentalists in the US have long ago been emasculated by the constitution and America's acceptance of the wall between church and state. Fundamentalists in the mideast have no such tradition. Thus conservatives can only argue against the ideology of Al Qaeda by speaking about economic freedom, capitalism, and suppression of political freedom. But they have no credibility when it comes to Al Qaeda's greatest appeal to the hundreds of millions of muslims who have accepted versions of their views. It is there that we can see the ancient struggle between Christianity and Islam playing itself out.

Liberals in large part reduce the belief system of Al Qaeda to one that they can rationally analyze. They cannot imagine that terrorism is in large part driven by irrational beliefs in which the US is a prop in a great delusional fantasy, so we are usally left with a garden-variety analysis of "imperialism". (Never mind that it isn't empire itself that bothers the Islamists, as Hitchens has pointed out, it's the fact that it isn't a muslim empire that bothers them.) Thus all actions and reactions can be reduced to imperialism and the understandable response to it. Thus the morally bankrupt act killing people in coffee shops can be explained away as a rational act. "Wouldn't you do that, too?" is the rejoinder. The answer is simple: "No I wouldn't."

Qutb, dubbed "the philosopher of terror" by Paul Berman, is the ideological grandaddy of Al Qaeda. You can read about him here
" Qutb wrote that, all over the world, humans had reached a moment of unbearable crisis. The human race had lost touch with human nature. Man's inspiration, intelligence and morality were degenerating. Sexual relations were deteriorating ''to a level lower than the beasts.'' Man was miserable, anxious and skeptical, sinking into idiocy, insanity and crime. People were turning, in their unhappiness, to drugs, alcohol and existentialism. Qutb admired economic productivity and scientific knowledge. But he did not think that wealth and science were rescuing the human race. He figured that, on the contrary, the richest countries were the unhappiest of all. And what was the cause of this unhappiness -- this wretched split between man's truest nature and modern life? "
"He insisted that shariah meant freedom of conscience -- though freedom of conscience, in his interpretation, meant freedom from false doctrines that failed to recognize God, freedom from the modern schizophrenia. Shariah, in a word, was utopia for Sayyid Qutb. It was perfection. It was the natural order in the universal. It was freedom, justice, humanity and divinity in a single system. It was a vision as grand or grander than Communism or any of the other totalitarian doctrines of the 20th century. It was, in his words, ''the total liberation of man from enslavement by others.'' It was an impossible vision -- a vision that was plainly going to require a total dictatorship in order to enforce: a vision that, by claiming not to rely on man-made laws, was going to have to rely, instead, on theocrats, who would interpret God's laws to the masses. The most extreme despotism was all too visible in Qutb's revolutionary program. That much should have been obvious to anyone who knew the history of the other grand totalitarian revolutionary projects of the 20th century, the projects of the Nazis, the Fascists and the Communists. "

Tuesday, May 03, 2005

And from the bubble camp...

Listening to kQed or NPR or whoever they are I got some interesting perspectives on the housing market. We had the real estate agent, who was on his cell phone and had to miss the first half of the segment (Feeding my image of the entire industry as run by incompetent elitist slicksters) the lady from the Mercury News, and non-profit dude. The whole conversation was a terrible disappointment to me, a true believer in the bubble and vested in the concept. I stand no chance of ever owning a house at this rate. But I am in fine company. The Yale Professor who wrote "Irrational exuberance" has a whole section in his book on the housing bubble. I've probably already posted it somewhere down below. Now recent events are bearing things out: The feds have raised a key interest rate and gas prices are partly to cause...

Monday, May 02, 2005

Arendt and the banality of evil

German philosopher and journalist Hannah Arendt caught my attention today upon reading a post by the "savage saint" on leveling artless criticism and attempting a pseudointellectual argument. The argument goes like this:
"You feel (obviously) that the ‘price is worth it’ – ala Madeleine Albright. You feel that xxxxx (take your pick) Iraqis being slaughtered, in order to take out a grotesque dictator is a price that is worth it."

It's hard to know where to go with this. The poster throws in a couple of big words in order to add an air of authority to the post; we get "utilitarianism" to show how he is up on philosophy and then Arendt's banality of evil for a little classic name-dropping (always the refuge of the ignoramus) but his argument is this: "How could you be willing to sacrifice ten people for a thousand?"

If we assume that all people are equally deserving of life, and that our inaction will result in more death, and our action will result in less death, then that seems like a pretty clear moral choice. This is usually the point in the argument where, confronted with the actuality of ones' patently absurd stance, the poster changes course and says "well, there was a better way".

Hindsight being twenty/twenty, it's the sort of unfair debate tactic used to avoid a substantive debate about moral choices. Since we didn't have to make that choice, and in fact, NEVER have to make such choices, then the poster probably considers it the fallacy of the false choice.

By that same logic, the US should not have helped the allies in WWII defeat the Germans. The death of the innocent people in that war is not an argument for fighting fascism, though fascism would presumably have led to more extermination of millions.
I find such arguments troubling and nihilistic to say the least. The sum total of it, in fact, is to simply argue that a million victims of nazis or baathists aren't as important as the twenty thousand victims of America. I am not good at math, but in the cold calculus of human rights, I know which sacrifice I would make.

The poster mentions Arendt in passing, and I did a little searching to familiarize myself with her. Her position in his argument was as a prop, but upon examining her thesis on the banality of evil, I was troubled by it. Her thesis was along the lines of the "evil in all of us" paradigm. Sort of a modern philosophical version of original sin. She wrote the phrase at the end of her series of pieces called "Eichmann in Jerusalem". I could see the Ward Churchill element going here; it's clear CHurchill was alluding to Arendt's thesis in his now famous criticism of the "little Eichmann's" in the WTC who were now the victims of this understandable act.

She believed that Eichmann wasn't the result of ideology, but a boring bureaucrat just doing his job. That ordinary people can get caught up in evil and do, and that at it's core, evil is something ordinary, not spectatcular. I can't be sure that this is an original idea, or even noteworthy. It seems to be the kind of idea that gets tossed back and forth between parties, each accusing the other of being guilty of it. It has, however, caught the public eye for some time now.

The essence of it is that we are all part evil. We can all be nazis. It's the kind of intellectual grandstanding I'm not comfortable with. IN answer, I can only say, that I am not capable of such actions, and I don't believe most people are, without the comfort of an ideology and personality as a catalyst. Evil and calamity are absolutely spectacular, and YES, ordinary people can be part of it as easily as they can refuse to be. To deny this is to deny that there really is such a thing as evil.