What's Japanese for "Duh"?

The International Herald Tribune calls it "The beginning of the end for Japan, Inc.":

If you still believe that it's business as usual in Japan, consider several developments over the past year. The government strictly applied new accounting rules that forced Japan's fifth-largest bank, Resona, into bankruptcy; creditors pulled the plug on the retailing giant Daiei, the nation's largest "zombie" debtor; and a business icon, Yoshiaki Tsutsumi, was arrested on suspicion of fraud and insider trading. More recently, an upstart Internet company undertook a hostile takeover battle - a rarity in Japan - and found unexpected support in the courts and among investors.

These upheavals in Japan's corporate world come in the context of a major overhaul of the employment system, legislative initiatives promoting greater transparency and sweeping judicial reforms. Japan Inc. is gradually unraveling as the close ties between big business, the governing Liberal Democratic Party and the bureaucracy become increasingly frayed. This closed network is being pried open and subjected to far greater scrutiny. Japan has indeed missed opportunities for reform, but times are changing.

Sony, once a symbol of Japanese business prowess, appointed a foreigner, Howard Stringer, as its chief executive with a mission to rescue the foundering giant. He arrives just as another foreigner, Carlos Ghosn, is taking on new challenges at Renault after rescuing Nissan.

It doesn't seem that long ago chronologically or psychologically that Japanese businesses seemed almost omnipotent. In the early 1990s, Rising Sun played to our fears while various business books spoke to our admiration for Japanese achievements like Toyota's Lean Production techniques. Ten years later, other books were already trying to figure out how Japan had fallen so far, so fast.

Whether they've hit bottom yet and started to climb back up is anyone's guess. For every economist who's seeing signs of hope in the Japanese economy these days, there's at least one who doesn't. Personally, I'm skeptical of the absolutists on both sides of that debate. Fundamentally, I can't believe that a society as ambitious, industrious, and creative (well, let's just call that what it is -- American) as Japan's can be hopelessly lost economically. Of course, I could be wrong:

We knew there was going to be one phone we weren'’t going to leave [the CTIA technology convention in] New Orleans without seeing: Sony Ericsson’'s recently-announced W800 Walkman musicphone. The big revelation was that the W800 actually won’'t work with Sony’s Connect online music store, at least not when it’s launched later this year. Nah, instead it'’ll have support for both MP3 and AAC, with the idea is that you'’ll load it up with music from your own collection (it’ll ship with a 512MB Memory Stick Duo card). We were told that eventually they might add support for Connect (which would require a firmware upgrade, since the W800 doesn'’t currently support ATRAC3 -- —a total shocker for a Sony device), as well as whatever wireless music download services the carriers might be cooking up . . . .

(From Engadget [emphasis added].) Sony's had one of the world's leading electronics brands in Walkman and missed the digital music revolution; they had one of the leading music libraries in Sony Music (which includes such labels as Columbia Records, Epic Records, and Sony Classical) and missed out on online music retailing. Now, a day late and ¥107.482 short (at current exchange rates), Sony tries to put it all together in a Walkman-branded music player-mobile phone hybrid and they don't make the damned thing compatible with their own online music store. Duh.

It's often been said that no one nation has a monopoly on good ideas, but bad ideas are also seeming oblivious to nationality these days.

Ewwww

From your friends and mine at the Associated Press, by way of Houston, Texas ABC affiliate KTRK, comes the distressing news that dandruff and other biological flotsam are significant components of air pollution:

Want to help reduce air pollution? Try dandruff shampoo. Well, that may be stretching the point. But a researcher has discovered unexpectedly large amounts of dandruff and other flaking skin, fur, pollen and similar materials in air pollutants known as aerosols.

Aerosols, tiny particles in the air, are widely studied because they are an important factor in regulating climate, variously absorbing heat to warm the air and reflecting sunlight to cool it. They are also important in forming rain and snow.

But the amount of cellular material -- bacteria, plant fragments, spores, fungi and so forth -- had been thought to be only a small proportion compared with mineral dusts, clay and sea salt.

Now, Ruprecht Jaenicke of the Institute for Atmospheric Physics at Mainz University in Germany has studied air samples and discovered that biological materials can range up to 25 percent of aerosols in some areas, and as high as 40 percent in others.

. . . .

He estimated that the amount of biological particles in the air, worldwide, annually is 1,000 teragrams. A teragram is somewhat more than a million tons.

Three thoughts came immediately to mind:

1. Ewwww.
2. Perhaps Howard Hughes was onto something?
3. The last line of this article doesn't strike me as at all strange. ("The research was funded by the German Science Foundation.")

Thanks, Fritz.

Death of a Spammer

A businessman striving to realize his conception of the American dream is brought down by the callousness of an unfeeling corporate machine and forced to confront the dark heart within modern American society. Or not. It's not Death of a Salesman and this is no Willy Loman. As related by The Denver Post and Slashdot:

[Scott] Richter's company, Westminster [Colorado]-based OptInRealBig.com, has filed for bankruptcy protection in Denver. The company cited a costly legal battle with Gates' Microsoft Corp., which claims OptInRealBig.com illegally spams computer users.

"It's the legal fees that are battering the company," said OptInRealBig.com lawyer Steven Richter, father of Scott Richter. He said the company faces lawsuits from Microsoft and other parties in Colorado, California and Utah. "OptIn is profitable but for these lawsuits."

. . . .

Microsoft officials called the filing a victory. "Microsoft and the state of New York said we would drive him into bankruptcy, and together we have," said Aaron Kornblum, Microsoft's Internet safety enforcement attorney. "The kind of spam Mr. Richter was sending was not only annoying, it was illegal, and the law sets out penalties for this kind of illegal activity."

. . . .

Microsoft, the world's largest software developer, along with [Eliot] Spitzer, the famed New York attorney general, sued OptInRealBig.com and Scott Richter in December 2003, seeking nearly $40 million.

. . . .

[Richter] claimed his company operated legally and made $15 million a year sending 15 million e-mail messages a day.

Scott Richter did settle with Spitzer's office for $50,000 in July. "At the end of the day, we're still in business," he said then. "They said they were going to bankrupt us."

He wasn't available for comment Monday.

Microsoft's case against OptInRealBig.com now moves from Washington to the U.S. Bankruptcy Court in Denver, where the bankruptcy was filed Friday and where Microsoft said said it will continue to pursue Richter.

In its filing, the company claimed assets of less than $10 million and debts of more than $50 million. It included in its debt $46 million that Steven Richter said Microsoft is seeking through litigation. Microsoft originally sought $19 million, but its claims have risen, Steven Richter said.

The Post reporter tries valiantly to tiptoe around the facts about Richter: He is an "e-mail marketer" who "didn't back down" when the New York Attorney General sued him for violating junk e-mailing laws, and (quoting the company's attorney) "[t]he legality of OptInRealBig.com's e-mail messages hasn't yet been determined". The reality is that Richter has been established as one of the worst of the "spam kings"; the Spamhaus Project, which investigates and documents the perpetrators of illegal spamming, lists Richter's extensive misdeeds:

Richter claims the 80 million people he spams all "subscribed" to his lists, all "asked" to be sent generic advertising and plenty of it. Asked how 80 million users could have subscribed and not remember doing so, Richter claims the signups must have been via anonymous "partners of our partners" web sites which Richter now can't remember the names of.

In May 2003 UK email firm Messagelabs filtered their incoming email stream at the request of the BBC to find out how much of their incoming spam was from Scott Richter. Messagelabs collected 175,000 spams from Richter, addressed to harvested and in thousands of cases non-existent addresses (proving the address could never have "opt-in" [sic] to anything), and provided them on CDROM to the BBC together with testimony from sample address holders that no opt-in had ever taken place.

. . . .

Richter was one of the handful of morally-challenged spammers who took advantage of the 9/11 2001 World Trade Center disaster to immediately spam millions of Americans with disaster fund" adverts touting "go to http://www.saverealbig.com to start the relief! Buy American flags from Saverealbig to show your support".

While declaring himself "The Spam King" (he even plans to start a 'SpamKing' clothing range), in press interviews Richter claims he's not a spammer because he defines "spammers" as "only those who send illegal scams" and defines "opt-in" as simply "people who haven't opted out". Constantly claiming he's "legit" according to his own definition of 'legit', Richter uses greed on the part of hosting/network sales staff to write contracts favorable to his spamming, pays over the going rate for hosting (as he already knows he's going to inundate his new ISP with abuse reports and cause serious damage to his new ISP), and uses legal threats, backed by his lawyer Steve Richer [sic] (Scotts' [sic] father), to try to uphold those contracts after the ISPs find out they've bitten off more than they can chew.

Last July, Richter settled with the New York Attorney General; in the consent order, Richter neither admitted nor denied the allegation against him, specifically that his company "sent millions of emails" which:

* Used fake names in the emails' "From:" lines, often the recipient's own name – making it appear as if the recipient had sent the email himself;
* Used the names of other, well-known companies in the emails' "From:" lines;
* Used forged email addresses in the emails' "From:" lines in an attempt to hide the true source of the emails;
* Used forged email addresses that led some to believe that their email accounts had been hijacked by spammers;
* Used deceptive subject lines that falsely indicated that the emails were part of an ongoing conversation;
* Used deceptive subject lines that falsely indicated that the email was about or from a different, well-known companies; and
* Were routed through more than 500 compromised computers worldwide in order to hide the true source of the email. These computers belonged to a diverse group ranging from IntelliSpace, Inc., an Internet service provider in New York City to Singer Computer, in Russia, Seoul Municipal Hospital in Korea, and even the Kuwaiti Ministry of Finance.

Microsoft, owner of the HotMail service which has been particularly targeted by Richter, has confirmed that it will continue to pursue Richter in the Bankruptcy courts. Keep up the good fight, Bill.

The Third Casualty of War

Toward the end of the First World War, California Senator Hiram Johnson noted that, "The first casualty when war comes is truth." More recently, Monty Python alumnus Terry Jones lamented that, "The first casualty of war is grammar." Let's call it a tie and move along.

Knight-Ridder reporter Hannah Allam brings us the tragic news from Iraq today that the third casualty of war is ethnic and religious humor:

Nazar Joudi misses the days when laughter echoed through the musty alleyway where he and his friends - cobblers, goldsmiths and tailors - told vivid jokes to escape the war.

Their tales of dimwitted Shiite Muslims, unlucky Kurds and hapless Sunni Muslim tribesmen enlivened a dark corner of a Baghdad marketplace and nurtured an oral tradition found throughout the Arab world. Puffing cheap cigarettes and slurping tiny cups of tea, the men would laugh until tears streamed down their haggard faces.

But after Iraq's Jan. 30 parliamentary elections, Joudi noticed that divisions were emerging among his old friends. Shiites sided with Shiites, Kurdish barbs took on a sharper edge and everything offended the Sunnis. Ethnic and religious jokes lost their humor, Joudi said with sadness, so the men stopped coming and the ritual died.

"Now if you tell a joke about a Sunni or a Kurd, you wonder whether you're hurting their feelings," said Joudi, 42, who's a Shiite. "People are just not relaxed about that stuff anymore."

With ethnic and sectarian tensions coursing through Iraqi politics and seeping into the streets, poking fun at another Iraqi's ethnicity or beliefs is increasingly taboo. One-liners that once were traded in public and broadcast on the radio now are whispered only among close friends or, safer still, text-messaged from cell phone to cell phone. Few Iraqis are willing to risk starting a fight over a joke, and in a place where just about everyone is armed, offending the wrong person could be fatal.

Allam relates that "Under Saddam Hussein's regime, jokes about the Sunni dictator or his tribe were forbidden, but everyone else was fair game. Cracking on Kurds became a national pastime." Thus, we have "liberated" the brave Iraqi people from the tyranny of the Ba'athist regime only to see them sacrificed to an even more merciless foe -- political correctness.

In other news, Lawrence Summers has been named as the new United States Ambassador to Iraq.

Foreign Influences (Update)

Texas Senator John Cornyn weighs in today in the National Review concerning the growing influence of foreign laws upon American judges, a topic on which I previously wrote. Cornyn is a former state attorney general and state supreme court justice, and has filed an amicus brief in the Medellin case argued before the Supreme Court today. Noteworthy paragraphs from his essay:

This is — to put it lightly — not how our legal system is supposed to work. To the contrary, our Founding Fathers fought the Revolutionary War precisely in order to stop foreign governments from telling us what our laws say. The Declaration of Independence specifically complains that the American Revolution was justified because King George "has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws." It was "We the People of the United States" who ordained and established a Constitution of the United States, one that includes a mechanism by which only "We the People of the United States" can change it if necessary. And of course, every federal judge and justice swears an oath to "faithfully and impartially discharge and perform all the duties incumbent upon me...under the Constitution and laws of the United States."

I fear, however, that today some judges may be departing so far from American law, American principles, and American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments, and foreign cultures — because there is nothing in this country left for them to cite for support. What's more, citing foreign law in order to overrule U.S. policy is especially offensive to our constitutional democracy, because foreign lawmaking is in no way accountable to the American people.

Last week, I introduced Senate Resolution 92, similar to a resolution introduced by Rep. Tom Feeney (R., Fla.) last month. It expresses the sense of the Senate that judicial determinations regarding the meaning of our Constitution should not be based on the judgments, laws, or pronouncements of foreign institutions, except where such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of our Constitution.

Finally, An Exit Strategy in Iraq

Many have protested that there is no "exit strategy" in Iraq, but this afternoon the Financial Times reports that an exit strategy is indeed taking shape -- amongst the leadership of the insurgency:

Sharif Ali Bin al-Hussein, who heads Iraq's main monarchist movement and is in contact with guerrilla leaders, said many insurgents including former officials of the ruling Ba'ath party, army officers, and Islamists have been searching for a way to end their campaign against US troops and Iraqi government forces since the January 30 election.

"Firstly, they want to ensure their own security," says Sharif Ali, who last week hosted a pan-Sunni conference attended by tribal sheikhs and other local leaders speaking on behalf of the insurgents.

. . . .

Sharif Ali said the success of Iraq's elections dealt the insurgents a demoralising blow, prompting them to consider the need to enter the political process.

More than a month ago, I wrote of the rumored "back channel communications" between various American officials and leaders of the native Sunni and Ba'athist elements of the insurgency. At the time, I recognized that the reports were cause for optimism but, even if true, did not point toward an immediate and complete end to the conflict -- the discussions sounded preliminary and did not include the foreign al Qaeda-aligned fighters who have been responsible for the most bloody attacks on non-Coalition and non-military targets. Since those initial reports, not much news had surfaced before now to indicate progress made by those contacts or whether the talks were ongoing.

Considering the Financial Times article, it's safe to say that the same caveats apply now as before -- these reports also describe only tentative changes in the thinking of the native insurgency leadership and no indication of any change of heart amongst the al Zarqawi-led foreign terrorists. Still, such reports confirm the significance of the successful Iraqi elections and the powerful effect of the steady Coalition presence; perhaps neither factor will, in isolation, prove decisive in ending the insurgency, but in combination these and other indicators of the resolve of those on the side of Iraqi democracy will demonstrate, at least to the native insurgents, that their fight is lost -- both in military terms and in the hearts and minds of their countrymen.

TGIS: Thank God It's Schadenfreude! (6)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Thursday, March 24; link good at time of posting):

An Alabama man has been given three years' probation and fined $5,000 after he was convicted of impersonating a federal tax agent in an effort to keep from being cited for hunting violations.

Patrick Clete Blankenship . . . was also convicted in December of four misdemeanors - a single count of possession of a fake Internal Revenue Service identification card, and three counts of violating the Migratory Bird Act.

. . . .

Blankenship told jurors in December that, upon being confronted by the officers, he put into action a plan he had concocted after listening to a radio talk show about ways people have sidestepped various citations.

He pulled out an official-looking but phony IRS business card that he had made after downloading the agency's logo from the Internet. It identified him as a senior auditor. Then he asked pointedly if the officers had been audited lately, and insinuated that he would audit them if they cited him.

Blankenship told Moody on Wednesday that his attempt to evade a $627 fine for hunting violations was not worth "what I've had to go through and what I've put my family through."

[Previous TGIS]

Meine Ohren Bluten

Pity those poor Austrian bastards. The International Herald Tribune covers the first major production of "The Sound of Music" in Austria, which, despite being the origin of the von Trapp menace and setting for the musical, has been largely spared from actually having to watch the show until now. Even the movie wasn't released there.

What's kept it away all these years has been commercial rather than official reluctance to see it produced:

For decades, theatrical producers and managers evidently believed that Austrians would not like to see the period when Hitler took over Austria turned into light, frothy, American-style musical comedy. "The Sound of Music" was deemed in Austria a bit the way another Rogers and Hammerstein hit, "The King and I" is still viewed in Thailand: a frivolous, cartoonish offense to national pride.

There's something to that, apparently. "Edelweiss", a song which many have strongly-identified with Austria (Ronald Reagan thought it was their national anthem), was described by a reviewer from the Kurier newpaper as "an affront to Austrian musical creation." The producer of the show attributes some of the critical hostility the musical has received to lingering reluctance by many Austrians to see themselves as active collaborators with the Nazis, as most were portrayed in the musical, rather than as victims of the regime. Still, there are some indications that the Austrian mainstream has relaxed somewhat about that period of their national history:

Leaving the theater Monday night, one member of the audience, Margot Schindler, a cultural anthropologist, said, "I liked it, but 20 years ago I wouldn't have."

Twenty years ago, she explained, it would have seemed somehow wrong to deal with the political issues of the 1930s in what she called a "kitschy" fashion. Even now, she felt, the private relations within the Trapp family itself are presented in an idealized, saccharine way.

"Reality wasn't like that," she said, "but the political stuff is O.K."

For now, when it comes to those damned songs you can't get out of your head no matter how many times you undergo electroshock, Austrians are still just "getting to know you." According to the article, "At the end of the show . . . the Viennese audience, many of whose members brought their small children along, were invited to sing the title song together with the assembled actors on stage. It was clear from the response that pretty much none of them knew it." Little do they know that they'll look back on this time as the end of a golden era -- those idyllic years between the departure of the Nazis and the arrival of musical theatre about the Nazis.

We'll give them a bit to adjust and then send them "Hogan's Heroes".

Thy Will Be Done (Update)

From yesterday's Cox and Forkum:


Although that picture may be worth a thousand words, a few more are worth noting. Terri Cullen's "Fiscally Fit" column in today's Wall Street Journal (subscription required) and a related column, "Health Journal", published yesterday expand on a few points I discussed earlier.

When the option is available to you under local laws, it's advisable to prepare both a Living Will and a Durable Power of Attorney for Health Care. Ideally, this belt-and-suspenders approach will ensure, to the greatest extent possible, that your decisions and preferences concerning medical treatment are heard and given effect in the event you become incapacitated. It's not just years of legal training and experience which prompt me to throw those caveats into an otherwise reassuring sentence; if you shout (figuratively speaking) in your Living Will and your trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent designated health-care proxy shouts (perhaps literally) when you are no longer able to, the shoutees still may not listen right away or at all.

From "Health Journal":

Some doctors say living wills are only a good start. They can't cover all of the potential what-ifs and medical gray areas that can arise. Also, some recent research shows that doctors won't follow them to the letter. In a study published last year in the Archives of Internal Medicine, doctors were asked to consider six hypothetical medical cases. Overall, 65% of the decisions the doctors made were contrary to patients' advance directives.

"Living wills don't reflect the complexity of the decisions," says Nancy N. Dubler, director of the division of bioethics at Montefiore Medical Center in New York.

. . . .

Doctors say the more important decision, however, is creating a health-care-proxy or power-of-attorney document.

From "Fiscally Fit":

While living wills detail the type of medical care individuals want in the event they become incapacitated or are near death, it doesn't guarantee that a patient's wishes will be followed. It's not uncommon for family members -- or doctors -- to disagree on the appropriate course of action, which may go against the guidelines in an advance directive.

Among the factors that are taken into consideration when deciding on whether to abide by a patient's stated wishes are the prognosis and quality of life, as well as the wishes of family or friends, according to a study from the Loma Linda University Medical Center, in Loma Linda, Calif. "Advance directives are used in decision making, but in practice probably not as absolutely as the document might imply," says Steve Hardin, an assistant professor of medicine who oversaw the study.

As a result, families can find themselves battling health-care providers, or each other, amid already devastating emotional anguish.

So where does all this leave us? Essentially, these documents are about making clear decisions, expressing those decisions clearly, and tapping someone you trust to do his or her level best to see things through. These are not guarantees, but these documents greatly improve your odds of getting your way in the last argument you'll ever have.

Law schools teach their students never to think in absolutes -- only tortured analogies and ridiculous hypotheticals can possibly capture the scope and grandeur of the human experience. Here's an analogy offered in an attempt to sum this all up: your health-care proxy is Roy Hobbs and your Living Will is "Wonderboy". "Wonderboy" is a fine bat even without Roy; any solid player could pick it up and hit with it. Roy would still be "The Natural" even without "Wonderboy", but with it, he's even better. I know, I know -- even after "Wonderboy" was firewood and that dumpy batboy brought him a different bat, Roy hit a home run. Still, if that final swing were a matter of life and death for you, you'd want Health-Care Proxy to hit with Living Will, wouldn't you?

Thy Will Be Done

Which of the following best characterizes your position on the Schiavo melodrama?

• "Terri never wanted to live like this (and I know this although I never met her personally and have no real inkling what she herself wanted) and we should let her die in peace (by peacefully starving her to death, something which the Eighth Amendment and my own sense of non-denominational moral outrage would not permit me to do to a convicted murderer)."
• "Terri's life is precious (even though the undisputed evidence and medical diagnoses in this matter all indicate that she is unaware that she is still technically alive) and we must keep her alive at all costs and against the instructions of her husband (although the vast majority of those costs are borne by programs which I believe should be cut from the budget and, except in this instance, we should never interfere in the marital relationship within which a spouse is presumed to know and to act in furtherance of the other's deepest wishes)."
• "I know nothing about the Schiavo matter, and despite that have no opinion." (Once again, Eugene Volokh shows us the way.)
• "This poor woman's life, such as it is, should not be a political football for Tom DeLay to kick around to distract the public and his remaining supporters within the Republican Party from the ongoing ethics inquiries against him."
• "This woman's life, such as it is, should be a political football for me to kick around to distract the public and my remaining supporters within the Republican Party from the ongoing ethics inquiries against me."

Regardless, the one lesson which we all can take away from this sordid interlude is that quality- and end-of-life issues are matters best decided by individuals and ensured by those individuals' actions, rather than the actions of their relatives, the courts, the government, and various and sundry interest groups.

The Supreme Court recognized in the 1990 Cruzan decision that competent people have a liberty right under the Due Process Clause of the Bill of Rights to refuse unwanted medical treatments. The Court found that the longstanding common law position that "informed consent is generally required for medical treatment" necessarily implied a corollary right not to consent and thereby to refuse medical treatment, but that such a refusal must be demonstrated by clear and convincing evidence of the patient's wishes. For a conscious person in full control of his or her faculties, making those wishes known to treating physicians suffices; where, as in Ms. Cruzan's and Ms. Schiavo's cases, a patient is not able to make decisions or to make those decisions known at the time of treatment, the matter becomes more problematic. If demonstrated prior to incapacity, a patient's own wishes may be followed; if not so demonstrated, the decisions of a guardian or other authority will control.

Commonly referred to as "Advance Directives", several ways exist to establish your medical treatment wishes before any need for such treatment arises. Chief amongst these are Living Wills and Durable Powers of Attorney for Health Care. A Living Will is used to describe your decisions whether to receive certain types of treatment, such as artificial respiration or nutrition and hydration. A Durable Power of Attorney for Health Care is used to designate and appoint another person to make certain health care decisions on your behalf at such time as you are unable to do so.

Note, however, that the availability and applicability of these directives may vary from state-to-state. Depending on local laws, these directives may be prepared singly or in conjunction with one another or other documents in order to fully-describe your treatment decisions. Provided that you have and are able to demonstrate the capacity to do so, advance directives may be changed at any time. Although it may be advisable to consult an attorney to ensure that your directives are properly prepared, forms and software are available online to assist you; forms are also generally available from hospitals prior to non-emergency treatment.

Regardless what your beliefs may be concerning life-sustaining health care, the need to consider and make health care decisions for yourself is clear. Make your decisions and make them known to your family, but rest assured that if you choose not to make these difficult decisions for yourself, Tom DeLay is happy to do so on your behalf.

[Update]

Scarce Authority (2)

[Part One]

Two justifications have generally been offered for the FCC's authority to promulgate indecency regulations for broadcast media: The Scarcity Doctrine holds that the airwaves are a limited public resource which the government may license with restrictions and subject to continuing oversight on the public's behalf; the concept of pervasiveness holds that where the nature of a medium is such that the general public cannot be reasonably expected to avoid it, the government may regulate indecent content on that "pervasive" medium. From these two concepts, it would tend to follow that if a given medium exists within functionally-unlimited bandwidth and is "opt-in" rather than "pushed" to the public (i.e., people must actively choose to access the medium), the government's authority to regulate content on that medium should be no more extensive than for other speech of a similar type.

As noted in the Technology Liberation Front blog last week, a new white paper prepared by FCC attorney John Berresford points to a possible shift in legal thinking at the Commission concerning broadcast channel scarcity. Amongst the conclusions of the paper, as related by TLF, are these:

(1) the scarcity the government complained of was “largely the result of decisions by government, not an [unavoidable] fact of nature.” In other words, the government’s licensing process created artificial scarcity.

(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.

(3) even if there ever was anything to the Scarcity Doctrine, there certainly isn’t today in our world of information abundance.

Still, whether the initial justification for broadcast regulation was a valid one in retrospect is largely beside the point now; these regulations are so entrenched in the public's mind, the political environment, and the broadcasting business itself that, as recognized by TLF commenter Andrew McGuinness, the "government department's reaction to finding its doctrine is dead is more likely to be to find a new doctrine than to stop regulating." The value in questioning this justification is in limiting its application to the broadcasting environment and thus preserving the status quo.

Although Berresford's paper takes the doubts about the Scarcity Doctrine to their logical conclusions, these doubts have floated around the FCC for some time. Starting with the Supreme Court's decision in FCC v. Pacifica Foundation, the agency has sought to shore up the inherent weaknesses in the scarcity argument by using the concept of broadcast pervasiveness described and approved by the Court in Section IV(C) of the Pacifica majority opinion (citations omitted):

[T]he broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Since Pacifica was decided in 1978, however, technology has produced tools which make such avoidance, at least as to cable and satellite television signals, both possible and widely-accepted and, for these reasons, eminently reasonable for individuals to choose or not choose as they see fit: for five years now, new televisions contain "V-Chips" which permit parents to allow only broadcast programming with particular ratings into their homes; the existence of the underlying ratings system allows program-by-program advance evaluation even without a technical filter like the V-Chip; set-top boxes which decode satellite and cable programming for subscribers have long allowed users to set "favorite" channels and block offensive ones; finally, the threshold decision whether to subscribe to pay television at all, and if subscribed which of the hundreds of channels offered to select are principally an individual's own.

The "individual's right to be left alone", which so concerned the Pacifica Court, can thus be defended on multiple levels by individuals themselves, without further "assistance" by governmental actors. In recent years, the FCC has indicated a clear desire to regulate deemed-indecent materials on broadcast channels; some in Congress now seek to extend those regulations to cable and satellite programming. Notwithstanding, where individuals already possess several adequate methods to filter their own exposure to materials which each finds offensive by his or her own standards, such regulation is not appropriate. Such is the case with cable and satellite programming, media which are neither scarce nor pervasive by traditional standards.

[Update]

Scarce Authority (1)

An interesting post and discussion are ongoing at the Technology Liberation Front concerning the Scarcity Doctrine and the regulatory authority of the Federal Communications Commission (FCC). I'm posting my thoughts and following the discussion; I'll try to summarize both toward the end of the day. For those of you wondering, although I am admittedly narcissistic, I think the topic and discussion are interesting for reasons other than my participation therein!

[Part Two]

TGIS: Thank God It's Schadenfreude! (5)

This week's joy in the misfortune of others comes courtesy of the Associated Press via USA Today (from Monday, March 16; link good at time of posting):

Having a vanity plate that reads "TIPSY" may not be such a great idea after all.

Josiah Johnson, 23, said his license plate might have tipped off the Clay County sheriff's deputy who pulled him over Friday after he left Coach's Sports Pub in Moorhead.

Now he faces third-degree drunken driving charges after his blood-alcohol level allegedly registered twice the legal limit.

Johnson said he bought the personalized license plate for his Jeep to describe the way it rode — then kept it as a joke when he got a Chevy Silverado because he likes to party.

"It doesn't mean I drink and drive," he said. "It just means I have a good time."

Johnson, who was slated to appear in court March 22, said he'll never drink and drive again.

"I feel really stupid," he said.

[Previous TGIS]

Pay to Play (Second Update)

Thomas Friedman weighs in this morning on the issues on which I've posted recently -- the inverse relationship between foreign debt levels and flexibility in foreign policy:

National security is about so much more than just military deployments. It is also about our tax, energy and competitiveness policies. And if you look at all these areas, the Bush team has not only been steadily eroding America's leverage and room for maneuver vis-à-vis its biggest long-term competitor - China - but it has actually been making us more dependent than ever on Beijing. Indeed, if the Bush policies were wrapped into a single legislative bill it could be called "The U.S.-China Dependency Act."

The excessive tax cuts for the rich, combined with a total lack of discipline on spending by the Bush team and its Republican-run Congress, have helped China become the second-largest holder of U.S. debt, with a little under $200 billion worth. No, I don't think China will start dumping its T-bills on a whim. But don't tell me that as China buys up more and more of our debt - and that is the only way we can finance the tax holiday the Bush team wants to make permanent - it won't limit our room to maneuver with Beijing, should it take aggressive steps toward Taiwan.

What China might do with all its U.S. T-bills in the event of a clash over Taiwan is a total wild card that we have put in Beijing's hands.

During the Cold War, foreign policy developed like a glacier accumulating ice. Positions were formulated to deal with local or temporary crises, but overall policy tended to ossify as it became based upon capturing unaffiliated states into your bloc and luring weakly-aligned states from your competitor's bloc; concerns about the propriety of the incentives offered these states were secondary to the perceived need to complete the deal successfully and maintain the political, if not moral, integrity of the bloc. Foreign policy in our era will be built around grand concepts (think, for instance, President Bush's "freedom" mantra during his recent European tour), but it will need to be more nimble than in previous eras, moving quickly from action to action in order to advance toward achievement of those overarching "grand concept" objectives.

As I've expressed before, I believe we possess the ability to do this and to do it better than any other nation, provided we also possess the collective will to play to our strengths and correct our weaknesses. I tend to disagree with Friedman's assertion that yesterday's Senate decision to tap our own Alaskan oil reserves runs counter to this objective, which I infer from today's and earlier writings that we share. Nonetheless, a growing and widespread appreciation of the burdens we place on ourselves through dependency on foreign oil and credit is a positive step. Although we may disagree for now on a solution, agreeing on the nature of the problem is an essential prerequisite to someday discovering an agreeable solution.

Jose Canseco, Congressional Subpoena Daredevil

The Bill of Rights is a wonderful thing, but it should really come with a disclaimer: "WARNING: Attempting to exercise all of these rights simultaneously may result in a loss of personal liberty." Bloomberg.com presents Jose Canseco, washed-up athlete, noted author, and civil rights pioneer:

Former baseball player Jose Canseco, who wrote a book that says he and other major-leaguers took steroids, will cite his Fifth Amendment right not to incriminate himself when he testifies before a U.S. House panel tomorrow, his attorney said.

Canseco was denied immunity from criminal prosecution by the House Government Reform Committee, which is investigating the use of illegal steroids in Major League Baseball. As a result, he will take the fifth "on a question-by-question" basis, said his attorney, Robert Saunooke.

"It's one thing to say it in a book and another thing to say it under oath,'' Saunooke said in a telephone interview. "It's not admissible in a book."

That's a sucker bet worthy of Pete Rose.

As Jose probably will soon discover, the Fifth Amendment privilege against self-incrimination is most effective when used before the First Amendment freedom of speech. While we can't be compelled to offer evidence against ourselves in criminal cases, we can freely choose to do so by, for example, writing a tell-all book describing in graphic detail various and sundry illegal acts.

Black's Law Dictionary (7th Edition) describes an "admission" as: "1. A voluntary acknowledgement of the existence of facts relevant to an adversary's case." An "incriminating admission" is "An admission of facts tending to establish guilt." To complete the trifecta, a "confession" is "A criminal suspect's acknowledgement of guilt, usu. in writing and often including details about the crime." Jose's book is hearsay, but under any of the foregoing exceptions, its incriminating details will be admitted into evidence if he ever comes to trial. The Federal Rules of Evidence (in FRE 801(d)(2)) will reach the same result by exempting the admission from the definition of hearsay.

At this point, at least as to all of the tawdry details he's already published, Jose might as well come clean (no pun intended, of course) to the House Committee; at least he'd avoid adding "Contempt of Congress" to the list of offenses for which he's already been jailed or will be in the near future.

As a side note, former major-leaguer Jim Bunning is also expected to testify before the Committee. Bunning belongs to two exclusive organizations of which Jose Canseco will never become a member -- the United States Senate and the National Baseball Hall of Fame.

Pay to Play (Update)

Tomorrow's International Herald Tribune features a slightly-reworked version of David Lampton's recent Boston Globe article, which touched-on some of the issues I discussed yesterday and two weeks ago. Lampton makes an interesting comparison between our current and coming competition with China and our past competition with the Sputnik-era Soviet Union:

Sputnik represented principally a military challenge. In contrast, China's challenge is an unfolding, multidimensional development that will last decades and could prove far more productive than the Soviet-American contest. China wants to play ball with America. The question is how America will perform on a playing field it long dominated.

To address this question one must examine the building blocks of national power and competitiveness: national investment and savings, education, health and sound, legitimate governance. China is doing comparatively well in the first three, far less well in the last. If Chinese competition can push America to make its own needed adjustments, this is to be welcome, albeit painful.

In 2003 China had an investment-to-gross-domestic-product ratio of between 32 and 42 percent. This makes high economic growth very likely. Chinese performance contrasts sharply with America's. In 2003, the U.S. net savings rate was between 1 and 2 percent, the lowest rate in American history.

The United States cannot long compete when it borrows for current consumption while China invests using its own savings. America must rebalance its saving, investment and consumption priorities. If it does, Beijing's competition will have done it a big favor.

Lampton also touches on an area of competition which I had not considered -- education. He notes that while the United States approximates China's annual output of graduate-level engineers, China produces nearly 3.5 times as many undergraduate-level engineers annually. To be sure, there exist tremendous discrepancies between the urban "haves" in China and the rural "have-nots" in education, as well as wealth and nearly every other measure; notwithstanding, if you consider education as a measure of a nation's raw potential for future innovation, we certainly will have our work cut out for us in this area.

One final item also intrigued me: "America's post-World War II allies in East Asia (Australia, Japan, the Philippines, South Korea and Thailand) are becoming increasingly dependent on exporting to China and/or receiving increasing investment from it." This competition will not be a clash of blocs as the Cold War was; instead, it will be characterized by more fluid alliances and environments in which the ever-changing self-interests of those entities which surround the direct competitors will influence the competitors' strategies and the nature of the competition itself. This will not be a team event.

Game on.

[Update]

Better Than Good

It is good to point out that in his Philosophical Dictionary Voltaire once wrote, "The better is the enemy of the good"; it is better to note that he actually wrote, "Le mieux est l'ennemi du bien."

Early in college, I wrote a paper deftly exploring various aspects of Voltaire's philosophical writings. Computer spell-checking then existed in that transitional state between uselessness and annoyance, and thus my mention that Voltaire was a deist was promptly corrected to indicate his true status as a dentist. Thankfully, I was attending Washington State University and not a more academically-rigorous program. That aside, it's fair to say that Voltaire a) was French; and b) is deceased. If noting these two facts about someone doesn't put a smile on your face, perhaps you should peruse the new book Vile France: Fear, Duplicity, Cowardice and Cheese.

I hear you, though: "When it comes to our nation's founding fathers, save your pithy quotes, Voltaire Boy! Good isn't good enough . . . we want better!" Today's Wall Street Journal (subscription required) highlights the work of several Princeton academics who are compiling and annotating the complete papers of Thomas Jefferson. Certainly, this is a project worth doing well, but perhaps not too well; it seems the project has become bogged-down in detail:

No-stone-unturned research and marathon editors' notes have added to the delay. In a four-line note on Feb. 24, 1800, for example, Jefferson asked one John Barnes to pay $14 to Jefferson's "washer-woman." But in the latest volume, No. 31, that prompted 81 lines of editors' notes identifying Barnes and the washer-woman; a mention of the comptroller of the currency and his role in Jefferson's financial affairs; a discourse on some of Jefferson's other financial transactions that month, and the sad admission that 10 more letters between Jefferson and Barnes, including their dates and where they were mailed, are lost.

Demonstrating once again that you can't spell "analysis" without "anal", completion of the project is anticipated to take 83 years, coincidentally enough the length of Jefferson's life. That aside, it's fair to say that Jefferson a) was once an ambassador to France; and b) is deceased.

Pay to Play

The end of the Cold War left the United States as the only world superpower, but time passes quickly on the world stage; within two decades from our victory, we will face at least three other players --the European Union, India, and China -- on more-or-less equal terms. The Europeans hope to match us economically and better us politically, but they are not competitive militarily and their aging population and welfare state structures will sorely test them over time; India's population and growing economic strength will make it a power, but without a voice in the United Nations Security Council and a leadership presence in other international arenas, it will continue in the shorter-term to play political catch-up with the other competitors.

China, however, has already firmly-established its economic, political, and military foundations; in each of these areas, it is an already-strong competitor growing stronger over time. Thankfully, our competition with China need not become a zero-sum game like the Cold War, but make no mistake -- it will be a serious competition which we cannot lose.

A week or so ago, I argued that our choices as a society are undermining our ability to be masters of our own national fate. One of these choices is our collective impulse to save less and spend more, a tendency embraced at the moment by our political leaders from both ends of the ideological spectrum. A few thought that the connection seemed tenuous. Others wrote to let me know that I was not alone in feeling ill-at-ease with the situation; this morning's Bull Moose emphasizes the point in the context of China's recent escalation of the ongoing controversy over Taiwanese independence:

The Moose wonders when the right is going to be up in arms about the Red Debt Threat.

. . . .

Perhaps this is just verbal warfare that will never translate into an actual military action. However, if it did, the U.S. response may be constrained by a fiscal reality - America is increasingly a debtor to those very same Communist Chinese. It is an irony indeed that the conservative Bushie tax cuts for the wealthy are assisting their class enemies!

Yesterday's New York Times Magazine contained a rather complacent view of the China debt.

"Let's translate that into political terms. In effect, the Bush administration's combination of tax cuts for the Republican ''base'' and a Global War on Terror is being financed with a multibillion dollar overdraft facility at the People's Bank of China. Without East Asia, your mortgage might well be costing you more. The toys you buy for your kids certainly would."

However, the writer, Niall Ferguson indicates that it is in the Chinese interest that the dollar not slide so America can buy their exports. But, the Moose asks what if the rulers of China decide that they can, in effect, hold a threat of economic blackmail to stop American efforts to defend Taiwan?

It is clearly in our national security interests that we not be vulnerable to such a possibility. While the Bushies today suggest that they are concerned about the deficit, they its architects. The question is why Republican hawks have been so quiet about the irresponsible Bush fiscal policies that both make it difficult to expand the military and give aid and comfort to a potential foe?

The Bush debt is downright unpatriotic!

Since our last big victory, we've rested a bit on our laurels and, although we're still the dominant player, our physique has become somewhat flabby. Thankfully, the coming competition is not one where our make-or-break game will come at the start of the season; we have some time to train and any number of routine games ahead to prepare us. We're still at a point where we have the opportunity to recognize and correct our weaknesses before the competition begins in earnest.

[Update]

TGIS: Thank God It's Schadenfreude! (4) . . . The Sequel!

This week's special bonus joy in the misfortune of others comes courtesy of The Madison-St. Clair Record via Overlawyered (from Tuesday, March 8; links good at time of posting):

Alton attorney Emert Wyss thought he could make money in a Madison County class action lawsuit, but he accidentally sued himself instead. Now he has four law firms after his money - and he hired all four.

Wyss’s boomerang litigation started in 2002, when he invited Carmelita McLaughlin to his office at 1600 Washington St. in Alton. Acting as her attorney when she bought a home in Alton and when she refinanced it, on both occasions she had chosen Centerre Title--a company that Wyss owned--to close her loans.

In the course of the attorney-client relationship, Wyss advised McLaughlin she might have a claim against Alliance Mortgage, holder of the first mortgage. Wyss believed Alliance Mortgage might have broken the law by charging a $60 fax fee when she refinanced.

He produced a retainer agreement providing for his legal services and those from the Lakin Law Firm of Wood River, Campbell and Brinkley of Godfrey, Freed and Weiss of Chicago, and Diab and Bock of Chicago. McLaughlin signed.

The Lakin firm filed a class action complaint against Alliance Mortgage in 2003. The complaint identified the Chicago firms and Campbell and Brinkley as other attorneys of record, but not Wyss.

. . . .

[In a deposition, Defendant Alliance Mortgage's attorney Don] Brown asked Wyss if he was McLaughlin’s attorney for purposes of this litigation.

Wyss said, “I am one of her attorneys.”

Brown asked if he was her attorney at the time Centerre Title closed the loan.

Wyss said, "no."

“Emert Wyss, wearing his hat of Centerre Title company, collects the fees from Ms. McLaughlin, and now we have six, seven, eight months later, Emert Wyss wearing his hat as Ms. McLaughlin’s attorney suggests she file suit over the very fees his title company collected from her, is that right?” Brown asked.

Wyss replied, “That is right. It oversimplifies it, but that is correct.”

. . . .

In December, [after a motion by Brown, presiding Circuit Judge Phillip Kardis] ordered Alliance Mortgage to add Centerre Title and Wyss himself as third party defendants.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (4)

This week's joy in the misfortune of others comes courtesy of South Africa's Independent Online (from Wednesday, March 9; link good at time of posting):

A Romanian man lost his wife and mistress in one night after buying both a personalised gold necklace and mixing up the gifts.

Petru Cioaba, from Focsany, bought identical necklaces for his wife and his mistress and had their initials and a personal message engraved onto each one.

But he mixed up the necklaces, and after he left his wife the necklace one morning as a surprise present for her and went to work, he got a message from a lawyer saying she was filing for divorce.

Cioaba said he hoped his wife, to whom he has been married 20 years, would not go through with the divorce, local media reported.

[Previous TGIS]

Get a Grip

Getting a good grip from the start is the key to both pitching a baseball and appropriately-managing Major League Baseball's intellectual property. Consider the following from a recent National Law Journal article:

According to [plaintiff CDM Fantasy Sports'] lawyer, Rudy Telscher, MLB Advanced Media is expected to decrease "significantly" the number of companies offering its officially licensed fantasy games, therefore denying fantasy leagues the right to use information like player statistics without a license.

But CDM is challenging MLB's authority to license anybody, Telscher said, and is specifically seeking to use player statistics without MLB's permission. He said CDM doesn't dispute that it needs an MLB license for trademarked products such as team logos. But statistics are in the public domain, like telephone numbers, he argued.

"All we need is the player statistics and we believe we have the right to use them because they're public information," said Telscher of Clayton, Mo.'s Harness, Dickey & Pierce. "The Supreme Court has held that mere raw data where creativity is not involved is not something that would be protected by copyrights. ... I don't see how anyone could argue that player names and stats are something that are protected by copyright."

. . . .

Attorney Mike Mellis, in-house counsel for MLB Advanced Media, declined to comment on the suit.

Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, said that baseball officials are not claiming exclusive rights to player statistics. But if a company is trying to use those statistics as a means of financial gain, he said, then MLB has a legal right to demand a license for their use.

"Player statistics are in the public domain. We've never disputed that," Gallagher said. "But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain."

Gallagher demonstrates that when your attorney declines to comment, you probably should as well. Sorry, Jim, but public domain status means that information can be used by anyone for any purpose; the public domain isn't divided into commercial and non-commercial sections. Black's Law Dictionary (7th Edition) describes "public domain" as: "2. The realm of publications, inventions, and processes that are not protected by copyright or patent. Things in the public domain can be appropriated by anyone without liability for infringement." In essence, MLB is seeking to sell what it does not own, hoping to steal first base. Any tee-baller can tell you they can't do that.

Back in school, the older kids often tried to trick the younger ones into believing that they needed tickets to climb the stairs or use the bathrooms. Of course, those things are open to all and no tickets are required; the big kids knew that but sought to trade on the naivete of the littler ones for fun and profit. If the big kids at MLB sincerely believe that they can sell tickets to what's open to all, in this case it's not the little kids who are the naive ones.

[Update]

Rebuilding Marines

If you have not yet heard National Public Radio's series "The Span of War", take advantage of the program archives available online; parts one and two are available now and the conclusion will post after tomorrow morning's broadcast. The series is currently-focused on Marines 1st Sgt. Brad Kasal and Lance Cpl. Alex Nicoll, both injured during the battle for Fallujah. As the report notes, the severe wounds suffered by each man would likely have been fatal in wars past, but recent advances in medicine generally and in battlefield medicine particularly have enabled these Marines and thousands of other servicemen and women in Iraq and Afghanistan to survive their wounds.

As more serious casualties become survivable, recovery becomes a more trying proposition. The series covers not only the extraordinary medical technology and care afforded to these injured Marines and others, but the individual courage of the injured and the critical role that courage plays in determining whether recovery is successful and to what degree. Reported are details of the Marines' personal heroism under fire and their heroic efforts on a daily basis afterward to rebuild themselves. Cpl. Nicoll's injuries forced the amputation of his leg; tomorrow's conclusion to the Marines' story will focus on his recovery. Sgt. Kasal, despite long odds and through experimental and grueling medical techniques, has fought to recover from his wounds so that he can ultimately rejoin his Marines on active duty; that objective has never been assured him, but the same spirit which enabled his excellence as a Marine and survival in battle has now enabled him to take this chance. It's a chance earlier generations did not have and one that few of us could see to fruition if given; these Marines are men of courage whose story should be heard.

What's New, Pussycat?

Is this a new golden age we've entered? Amidst the (generally) good news from the Mideast, I discovered some good news from the Midwest, as reported by the Wisconsin State Journal:

Hunters across the state will be asked to vote next month on whether cats should be hunted.

A La Crosse man who hunts and traps wants to make free-roaming domestic cats an "unprotected species" that could be shot at will by anyone with a small-game hunting license.

Mark Smith's suggestion will be placed before hunters on April 11 at the Wisconsin Conservation Congress spring hearings in each of the state's 72 counties. Smith, a 48-year- old firefighter for the city of La Crosse, said any cat not under its owner's direct control, or which does not have a collar, should be considered fair game.

"If I'm in the woods and see a cat that doesn't have a collar, then I could shoot it," Smith said. "It gives people some leeway if they want to remove cats."

. . . .

Cat enthusiasts Cheryl Balazs, Ted O'Donnell and Adam Bauknecht are trying to organize opposition to Smith's proposal. O'Donnell, a co-owner of MadCat Pet Supplies, recently set up a Web site, dontshootthecat.com, to inform people about it.

"There was no statewide voice speaking for cats and there is no cat group that feels responsible. We knew we had to do something," O'Donnell said. "I'd like to think we could be a no-kill state, like Utah."

. . . .

Mark Smith, the man who brought the proposal, said he is not a cat hater and has owned cats in the past.

"They don't belong in the environment. All I want is for people to be responsible for them," Smith said. "If I catch a cat in the yard in a live trap, I should be able to put that animal down."

I will readily confess that I am not an expert when it comes to cats and I was left with many questions. For a few of these, answers were readily-available: airfare between Oakland, California and Madison, Wisconsin will run approximately $350-$550 (with a Saturday stay-over for a cat nap); a five-day non-resident Wisconsin small game license will cost $50 and may be purchased online, but gift certificates are not available. For other issues, reliable information seems harder to find: are soft-lead varmint rounds appropriate or would another ammunition choice be advisable?

Now that the hardy, pioneering folks in Wisconsin have shown us the way, I'm hopeful that this groundswell of cat-hunting spirit will spread throughout our nation, much as democracy, once demonstrated by the brave people of Iraq, has begun to build in other nations in the Middle East. Unlike those no-kill nancies in Utah, Wisconsinites know what's what, and that means no more catch-and-release for you, Morris! Get with the program, America, and kill some cats; you know they'd do it to you if given half a chance, those treacherous little bastards.

Moldova Speaks: It's All Over for Putin!

Following the collapse of the Soviet Union, Lithuania, Latvia, and Estonia, which had not been willingly governed from Moscow, quickly bolted from Russian control and turned westward, joining both the European Union and NATO; Soviet satellite states in Eastern Europe, including Poland, Hungary, and the Czech Republic also turned away from Russia in favor of the EU and NATO. Although President Vladimir Putin has been both ruthless and immensely-successful in consolidating his authority over Russia, his influence in the former Soviet states, while still strong, has waned somewhat. Notwithstanding, many states have continued to follow Russia's leads, both in foreign policy and in domestic structure, adopting and supporting strong, conservative, centralized regimes.

Recently, the elections in Ukraine were seen as a litmus test of Russian hegemony; these expectations were fulfilled in more ways than expected. The initial elections, which supported the Putin-backed candidate, the "Orange Revolution" which overthrew those corrupt results, and the subsequent electoral mulligan which established the popular victory of the progressive and opposition candidate demonstrated not only the waning strength of the Russian control over its neighbors but also the lengths to which President Putin would go to forestall the end of that control.

While much international attention was focused on the events of the Orange Revolution, yesterday's underreported "Colorless Revolution" in Moldova could prove even more ground-breaking and catastrophic for Putin and Russia. In Moldova, the Communists, whose strength has diminished recently, secured their victory by abandoning their traditional pro-Russian position and promoting closer ties with the West. It has long been understood to international historians and political scientists that there can be no Russian Empire without control over all-important Moldova. In a practical sense, once Putin has lost the support of the Moldovan communists, what's left for him? You heard it here first: Putin is finished and should resign now.

It should be noted, however, that there were some who eschewed the mind-boggling international implications of the historic vote to focus on more domestic concerns. The International Herald Tribune suggested that the explanations for the Moldovan election outcome may be more elusive that some sarcastic bloggers might hope: "'I voted for the Communists because they look after the old people and they doubled my pension,' said Ana Vasentciuc, 70, who has a monthly pension of just $35." Truly, the popular will in Moldova defies tidy explanations.

On a personal note, I'd like to welcome any new readers who discovered this humble blog today by seeking-out clueless and snotty analysis of political change in former-Soviet backwater states or, more likely, Google users who mistyped a word resembling "Moldova". Thanks for reading!

Spinning Good News (Update)

Now a few days into the "decade" he predicted it would take for democratic developments to prove more than temporary, we can upgrade Senator Levin's outlook to "cautiously optimistic", according to E.J. Dionne's column in today's Washington Post:

Even strong opponents of the Iraq war are displaying a wary willingness to imagine that events may be taking a turn for the better. Sen. Carl Levin (D-Mich.), who remains deeply skeptical of Bush's unilateral approach to the war, describes himself as "cautiously optimistic" about Middle East developments, including the Iraqi elections and the peaceful anti-Syrian rebellion in Lebanon.

Preparing for tomorrow's expected announcement of a pullout from Lebanon, Syrian President Bashar al-Assad probably shares Levin's growing realization that true democracy is on the march in the Middle East; unlike Levin, however, Assad probably could not be described as "cautiously optimistic". Many are speculating that his regime has been brought to the brink of collapse by these recent events in suddenly-uppity Lebanon. As has been the case with other messy and awkward pullouts, his pullout here is likely to be a "pull-and-pray".

TGIS: Thank God It's Schadenfreude! (3)

This week's joy in the misfortune of others comes courtesy of CBS affiliate KUTV in Salt Lake City, Utah (from Monday, February 28; link good at time of posting):

A robbery suspect was in the process of rummaging through a house at 9600 South, 4700 West when the residents returned.

In a rush to escape, the suspect left his wallet and identification at the scene of the crime.

"He was attempting to make access via the internet, some pornography sites and also attempting to dial some 1-900 sexual service numbers. All evidence indicates he disrobed while he was there and that he donned some women’s clothing while he was on the property," said Sgt. Dan Starks of the South Jordan Police Department.

Police arrested the 18-year old suspect at his home where they found the stolen items from the robbed home.

[Previous TGIS]

Foreign Influences

Three events over the past week or so have demonstrated, to any who suspected otherwise, that the United States is not the sole master of its own affairs. Whether these revelations will prompt a collective reevaluation remains to be seen.

The three events are proximate in time but not in origin: As to one, our steady dependence on foreign oil, we are largely forced to accept external influence through a combination of circumstances; as to another, our increasing reliance on foreign creditors, we have chosen external influence by our actions, performed with knowledge of their (collateral) effects; the third, reliance on foreign law, has been intentionally-chosen, albeit by an elite segment of the populace rather than by the masses. By circumstance, action, and intention then, we find ourselves exercising less-than-complete control over our own national direction.

Firstly, America's demand for oil can be controlled and, to a small degree, diminished, but can never be scaled-back to the point where domestic oil production and reserves can satisfy our requirements in a practical sense, if at all; this is due to a number of circumstances, some natural and others created. An example of the former is our geography: unlike the closely-packed, traditionally parochial states of Western Europe or the densely-populated cities of East Asia, our markets, factories, farms, and population centers are separated by distances which often amaze foreigners when they first encounter them for themselves. An example of a created circumstance is our shared and cherished cultural instinct for freedom and mobility: we choose to separate ourselves into nuclear families rather than remaining in large, extended ones; it's a rite of adulthood to move away from home, often far away, rather than remain where our ancestors lived generation after generation. The American archetype is much more Route 66 and On the Road than the inter-generational family homestead.

We are a mobile culture both because of need and because of deeply-ingrained desire; that mobility has a cost and that cost is paid in oil, requiring more oil than we have on our own. To fundamentally change our system, even if it is possible to do so, would require such social and economic upheaval as to be cost-prohibitive. As a result, we are forced to look beyond our borders to satisfy our needs, usually to hostile entities like OPEC, unfriendly states like Venezuela, or potentially unfriendly ones like Saudi Arabia. Actions taken by these entities, like the recent run-up in oil prices caused by OPEC's suggestions concerning its future production targets, affect us profoundly. As noted by Irwin Seltzer in The Weekly Standard:

The higher price confers political--in addition to economic--advantages on producing countries. Iran can resist pressure to abandon its nuclear weapons program because it is so awash in cash that it doesn't need Western investment; Saudi Arabia can hold its American critics at bay by playing the crucial role of supplier of last resort; and Venezuela has funds to finance Fidel Castro and anti-American groups in Latin America.

The disadvantages to America are obvious. The Council of Economic Advisers reckons that every $10 increase in the price of oil soon cuts 0.4 percent off real GDP. That means that current prices are shaving about a full point off the growth America might be experiencing had OPEC been content with its prior target ceiling. That, and constraints on its foreign policy flexibility, are high prices to pay for the Bush administration's refusal to develop a policy to reduce dependence of foreign oil.

Secondly, we have become a debtor nation comprised of debtors. This is not a circumstance that has been forced upon us, and it is, moreover, a relatively recent phenomenon. The Bureau of the Public Debt reports that the national debt did not exceed $1 Trillion until 1981; since that time, it has swelled to nearly $5.7 Trillion by the end of 2000 and to more than $7.7 Trillion today. (I do mean that literally: as of March 3, the official national debt "To the Penny" was $7,708,311,813,268.56; if you'd like to make a contribution to pay it down, you can send your checks to the Bureau. It gives a new connotation to the term "welfare state", doesn't it?) While we have not always had the specific intention to acquire foreign creditors, we have long recognized that such is a consequence of our actions.

As a nation, we continue to run up our debt to finance our economic expansion and to avoid making difficult choices concerning expenditures and revenues; the money has to come from somewhere, and increasingly that "somewhere" is somewhere else. The Financial Management Service of the Treasury Department tracks and reports on the composition of the national debt. Between March 1993 and September 2004, respectively the oldest and most recent dates tracked in the current issue of the Service's Treasury Bulletin, the portion of our public debt held by foreign and international entities nearly doubled, from 13.8% of the total to 25.2% (Table OFS-2 -- Estimated Ownership of U.S. Treasury Securities [in Microsoft Word format]). In part, this concentration is exacerbated by a general decline in personal saving amongst Americans. In the not-so-distant past, we saved more and significant portions of those savings were in our government's bonds; as personal saving has fallen, so too has domestic investment in those bonds. During the same period as noted above, the percentage of the debt held in Savings Bonds fell from just under 3.9% to less than 2.8%. The "slack" has been eagerly taken up by foreign investors.

Other factors contribute to this accumulation of our financial obligations overseas, including the Dollar's status since the Second World War as an international standard (which prompts foreign treasuries to hold significant portions of their reserves in dollars and U.S. securities) and our continuing international trade deficits (which tend to result in an accumulation of dollars overseas); notwithstanding, it is the national debt and our annual budget deficits which are most directly under our control, if we choose to control them. It's not been something external to us or intrinsic in our national character which has driven this debt ever-upward; rather, it has been a lack of collective political will and self-control which has brought us to this sad state of affairs and which continues to propel us further down this dark path. Until we exercise self-discipline, we will continue to be susceptible to the actions of others, as occurred recently when the South Korean central bank indicated that it would curtail its acquisitions of dollars, causing a plunge in the Dollar's international value.

Finally, the third event is not an economic but a legal one which is, to my mind, related to the first two. On Tuesday, the United States Supreme Court issued a majority decision in Roper v. Simmons which interpreted the U.S. Constitution, in part, based upon foreign laws and world opinions. The decision written by Justice Kennedy, while beginning with a caveat, opined in Part IV that:

The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Justice Scalia, one of the four dissenting justices, argued (in Part III) that, "Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage." He continued that, "the basic premise of the Court’s argument –that American law should conform to the laws of the rest of the world– ought to be rejected out of hand." Finally:

To begin with, I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice–a practice still engaged in by a large majority of the relevant States . . . .

While it is not generally noteworthy for the Legislative and Executive branches of our government to, in effect, commit us to international norms and foreign laws through the related processes of diplomacy and treaty adoption, it should be noted that such commitments, like other promulgated laws, are subordinate to the terms of the Constitution. What is significant here is that the Court's Roper holding is the Constitution; by interpreting the Constitution with reference to foreign laws, the appointees of the Judicial Branch has affirmatively-chosen to subordinate our nation's most fundamental laws to, or at least entangle them with, international opinions. Regardless of one's beliefs concerning the juvenile death penalty (at issue in Roper), internationalism, or judicial activism, this is an extraordinary development in American law which will have repercussions henceforth.

Thus, three recent events have demonstrated or established America's reliance on others, with the losses of freedom to choose and control our national direction which flow from such reliance. OPEC's and South Korea's actions have fired shots across our proverbial bow; in Roper, we've taken a broadside to our legal autonomy. We found ourselves subject to OPEC's and South Korea's wills owing in large part to involuntary circumstances and the natural collateral consequences of our own actions respectively; through our Supreme Court, we affirmatively chose to subject ourselves to a foreign will. Whether we ultimately choose to subordinate ourselves to such foreign influences to the degree we currently do or whether we choose to take steps to lessen that subordination, it's time we begin a national dialogue to determine our choice; it is not an option to avoid that discussion for, as many have said before, failure to choose is in itself a choice. The consequences for ourselves and our nation's future are too great to leave our choice to others.

[Update]