Playground Edition

[Bloggingheads]

[sealrock]

oh boy. here we go.

[BeachFrontView]

All the internet anarchists and the lawyers/government are going to have a lot of interesting clashes the next decade in the courts about lots of new legal issues that are unique to the internet. Most of the laws dealing with the internet are pretty murky.

Lawrence Lessig has some good lectures on laws to keep internet culture free.

http://lessig.blip.tv/#1447109

[robinho]

wow - bazelon punts on everything and althouse seems way off form. weird how this format is so dependent on chemistry - unless two lawyers talking is inevitably fated to be internet chloroform.

[pampl]

I'm not normally a big pedantic nerd but I noticed Bazelon misused the phrase 'begs the question' in the same way in her Slate column as she does here. Begging the question doesn't mean the same thing as raising the question. It simply means making a circular argument, so it doesn't really make sense to talk about what question it begs. Arguing "God must be infallible because the Bible says so, and the Bible's claim must be true because the Bible is the word of God" is an example of begging the question.

[bjkeefe]

Originally Posted by pampl

I'm not normally a big pedantic nerd but I noticed Bazelon misused the phrase 'begs the question' in the same way in her Slate column as she does here. Begging the question doesn't mean the same thing as raising the question. It simply means making a circular argument, so it doesn't really make sense to talk about what question it begs. Arguing "God must be infallible because the Bible says so, and the Bible's claim must be true because the Bible is the word of God" is an example of begging the question.

Right on. This one bugs me, too.

[basman]

...I'm not normally a big pedantic nerd but I noticed Bazelon misused the phrase 'begs the question' in the same way in her Slate column as she does here. Begging the question doesn't mean the same thing as raising the question. It simply means making a circular argument, so it doesn't really make sense to talk about what question it begs. Arguing "God must be infallible because the Bible says so, and the Bible's claim must be true because the Bible is the word of God" is an example of begging the question...

I can't resist this *pedantry*.

You are right and wrong, imho.

You are right that "begging the question" is misused when it conveys "we need another question answered" as opposed to assuming what you are arguing. But Ms Bazelon is correct here. When she says, once we have "Indian and Pilgrim dress up" on Thanksgiving we beg the question of their relationship, she is saying "by that dress up we already assuming the nature of the relationship, closing the circle on it so to speak, assuming the very thing that should be questioned--the nature of that relationship".

After thought: "begging the question" for all its conventional meaning--it is a kind of quasi term of art--is not a bad metaphoric phrase for conveying the notion that "what you are saying demands (begs, cries out for, etc.) the answering of another related question". So this may be an instance when figuratively and semantically correct general use in the culture is overtaking a specific meaning enshrined in traditional use.

Itzik Basman

[bjkeefe]

Originally Posted by basman

After thought: "begging the question" for all its conventional meaning--it is a kind of quasi term of art--is not a bad metaphoric phrase for conveying the notion that "what you are saying demands (begs, cries out for, etc.) the answering of another related question". So this may be an instance when figuratively and semantically correct general use in the culture is overtaking a specific meaning enshrined in traditional use.

Good point. What could be seen as a more general phrase with a good, vivid verb became adopted for a specific, more technical use. Thanks to my physics training, I used to be irritated by people who said something was "a lot of work" when they were not applying a force moved through a distance.

Now, shall we take up the issue of whether you ought to have included a space in "After thought?" ;^)

[pampl]

Originally Posted by basman

You are right and wrong, imho.

You are right that "begging the question" is misused when it conveys "we need another question answered" as opposed to assuming what you are arguing. But Ms Bazelon is correct here. When she says, once we have "Indian and Pilgrim dress up" on Thanksgiving we beg the question of their relationship, she is saying "by that dress up we already assuming the nature of the relationship, closing the circle on it so to speak, assuming the very thing that should be questioned--the nature of that relationship".

For that to be true, she would have to think that playing dress up proves the thing about the Indian-Pilgrim relationship that's assumed before playing dress up. I don't think Bazelone believes that playing dress up proves anything. To say it more clearly: If she pointed to how well the make-believe Indians and Pilgrims got along as justification for why it's OK to play dress-up as Indians and Pilgrims then she'd be begging the question in the technical sense.

You're definitely right about the colloquial sense though. I just thought it was jarring seeing it in her print piece, like if she had written 'irregardless'.

[basman]

Originally Posted by pampl

For that to be true, she would have to think that playing dress up proves the thing about the Indian-Pilgrim relationship that's assumed before playing dress up. I don't think Bazelone believes that playing dress up proves anything. To say it more clearly: If she pointed to how well the make-believe Indians and Pilgrims got along as justification for why it's OK to play dress-up as Indians and Pilgrims then she'd be begging the question in the technical sense.

You're definitely right about the colloquial sense though. I just thought it was jarring seeing it in her print piece, like if she had written 'irregardless'.l

You may be right. When I heard her I thought she was saying that dressing up said something about the relationship--power, subservience, acquiesence, lines of authority, catering to, and so on--but perhaps not, as you suggest. If she was, as I suggested, then she her usage would be correct in the specific meaning of the term "begging the question", then if not, then not.

And there I am content to leave it.

Itzik Basman

[Jon]

The motto "In God We Trust" predates the Pledge to the Flag, the original version of the Pledge of Allegiance, authored in 1892.

See

http://www.homeofheroes.com/hallofhe...fc_pledge.html

for a detailed history of the pledge and it's modifications.

IN GOD WE TRUST first appeared on the 1864 two-cent coin. The Act of May 18, 1908, made it mandatory on all coins upon which it had previously appeared. IN GOD WE TRUST was not mandatory on the one-cent coin and five-cent coin. It could be placed on them by the Secretary or the Mint Director with the Secretary's approval.

The motto has been in continuous use on the one-cent coin since 1909, and on the ten-cent coin since 1916. It also has appeared on all gold coins and silver dollar coins, half-dollar coins, and quarter-dollar coins struck since July 1, 1908.

from
http://www.treas.gov/education/fact-...we-trust.shtml

[bjkeefe]

Thanks for that info, Jon.

[thprop]

I have an intense dislike of the Pledge Allegiance - and the "under god" just made it worse. I have no allegiance to the flag. I honor and respect it as a symbol of this nation but I have no allegiance to it. My allegiance is to the United States and the Constitution - not to a symbol. In the pledge, the country is an afterthought - "I pledge allegiance to the flag of the United States of America and to the republic for which it stands." Even if you were going to express some allegiance to the flag, I think the order is backward. The nation should come first. And where is any mention of the constitution?

What seems to be important in the presidential oath of office (straight from Article II, Section I of the U.S. Constitution) -

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

The miltary Path of Enlistment -

I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Unfortunately, the "so help me God" part is actually part of federal law - 10 United States Code, Section 502.

How about the oath of citizenship (it has the "under god" crap too) -

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

All put a big emphasis on the Constitution. No mention of a flag. Maybe it is consistent with Bush administration policy to ignore the Constitution and be all about empty symbolism.

I never will pledge allegiance to the flag. As for god, all those with an imaginary friend can talk to him whenever they want.

[bjkeefe]

thprop:

Have you heard about Kentucky?

I didn't used to care so much about the "under God"s and "so help me God"s, and I thought people who made a big deal out of them should find something more important to kvetch about. But it's become clear to me that sooner or later you have to stand up to the theocrats, because they will never stop pushing.

[TwinSwords]

Originally Posted by bjkeefe

Have you heard about Kentucky?

Oh my God. These nutballs are going to be the death of this nation. How backward. I expect more sophistication from jungle tribes.

[nikkibong]

proof that Ann Althouse has never dined chez nikkibong:

http://bloggingheads.tv/diavlogs/162...2:37&out=22:41

[TwinSwords]

Originally Posted by nikkibong

proof that Ann Althouse has never dined chez nikkibong:

http://bloggingheads.tv/diavlogs/162...2:37&out=22:41

[TwinSwords]

Hey, Ann has spotted your comment! :-)

[nikkibong]

Originally Posted by TwinSwords

Hey, Ann has spotted your comment! :-)

thanks for the link, TS! ah, yes blogospheric fame; can my own appearance on bh.tv be far behind?!

[TwinSwords]

Originally Posted by nikkibong

thanks for the link, TS! ah, yes blogospheric fame; can my own appearance on bh.tv be far behind?!

Hey, that would be great! Maybe you should be Bob's Comments Diavlog partner.

[Eastwest]

Now I tend to expect such abysmal and appalling ignorance about the World's major religions from Ann, but I am a little surprised that Emily, too, would be so defective in her understanding of those traditions that she would fail to realize this fact:

Not all of the now-flourishing world (or U.S.) religions are theistic.

When one forces "under God" onto little children, one does not merely disrespect atheists (who have nothing but disdain for spiritual beliefs in any case) but one also engages in government-sponsored warping of the minds of innocent Buddhist children as well.

Buddhists, although deeply religious and ethical, completely reject the notion that the mind, the World, and the beings in it were either created by any god or are somehow now under the control or influence of any god. (They do teach that there are various levels of celestial rebirth in which one will indeed find the various gods of the theistic religions, both the angry ones and the benevolent ones, but those celestial rebirths are all seen as merely temporary, not associable with genuine spiritual perfection, and hence [like a Club Med vacation] are really not worth striving for.)

Sorry to see both DV participants being so dim on such basic components of a liberal arts education, so dim that they just default into justifying the current theocratic power-mongering of the Sarah Palin contingent.

I'd suggest both Emily and Ann should burn their undergraduate degrees as obviously undeserved false documents.

I'm not really proposing that it's very strategic for the Left to get involved in this topic as it's politically radioactive. Far better would be if the wusses in the Supreme Court would simply do their duty and take on what they weaseled out of dealing with recently. If they took on the issue, "under god" would be dropped and the Pledge would be restored to its earlier form. (And the constitutionality of that document and forcing it on children every day is itself a big question, but for another day.)

EW

[uncle ebeneezer]

Great post EW! Very well said. The whole thing reminds me of the "loyalty oaths" from Catch-22.

God bless you ;-) (from a Bu-curious, atheist)

[Eastwest]

Originally Posted by uncle ebeneezer

Great post EW! Very well said. The whole thing reminds me of the "loyalty oaths" from Catch-22.

God bless you ;-) (from a Bu-curious, atheist)

UB,

Glad you weren't offended by my overly-sweeping surmise about atheists. Actually, I find that a fair number of them abide in a deeply-mystical frame of mind, just one in which they refuse to subscribe to the "chairman of the board in the sky" model so rabidly promoted by theistic traditions (which, btw, seem historically to be the sources of most of the world's violence.)

I'm aghast that these two DV participants, both well-educated in the law, so blithely float along in this styrofoam analysis where they find exactly zero problem not only in endorsing the establishment of state-sponsored religion, but specifically in endorsing the establishment of one particular type of state-sponsored religion as dominant over and suppressive of other long-established religious traditions.

So, no, I don't think their law degrees are worth anything, either.

EW

[laura]

Originally Posted by Eastwest

UB,

...
I'm aghast ...

EW

I'm aghast too, though I generally like Emily.

On top of the religious issue, why does it have to be recited every day? Does the pledge lapse if not repeated? Maybe it should have the phrase "for the next 24 hours" inserted after "I pledge". Surely the very act of this repetition makes it a temporary allegiance.

So I don't find the ritual very helpful and if it inculcates anything it is probably a profound understanding of hypocrisy, which might be a good thing wrt religion but might be more of a problem wrt the country.

[bjkeefe]

Originally Posted by laura

Maybe it should have the phrase "for the next 24 hours" inserted after "I pledge". Surely the very act of this repetition makes it a temporary allegiance.

Nice.

I used to feel the same way about things like the Apostles' Creed, back in my churchgoing days. Not only does it seem ludicrous to have to reaffirm so frequently, but it also causes meaning to be lost.

[nikkibong]

Originally Posted by bjkeefe

Nice.

I used to feel the same way about things like the Apostles' Creed, back in my churchgoing days. Not only does it seem ludicrous to have to reaffirm so frequently, but it also causes meaning to be lost.

kind of like a former lover of mine who constantly demanded me to remind her that i loved her.

boy, that worked out well.

[uncle ebeneezer]

That just made me laugh out. Thanks.

[uncle ebeneezer]

I think it was my CCD demanding that I memorize the "Apollo Creed" at the age of 12 that, more than anything, pushed me towards the devout Atheism that I "practice" today.

[bjkeefe]

Originally Posted by uncle ebeneezer

I think it was my CCD demanding that I memorize the "Apollo Creed" at the age of 12 that, more than anything, pushed me towards the devout Atheism that I "practice" today.

LOL @ "Apollo Creed."

Also, now that I think about it: CCD -> OCD?

[basman]

To the point of "juries gone wild", I am not a criminal, nor an American, lawyer, but if the accused had been anyone else besides O.J. Simpson--first conviction for a serious crime, robbery,committed kind of comically by the gang that couldn't shoot straight--he or she would not have gotten anywhere near, I am surmising, 33 years. To the extent that this was "payback" for his first acquittal, it is wrong, wrong, wrong. And that a judge sentenced him, not a jury, makes it even wronger. He should have, I would think, a good appeal, as to sentence.

It may be karma, but it's not justice.

Itzik Basman

[bjkeefe]

Originally Posted by basman

It may be karma, but it's not justice.

Well put. Based on what little I know of that case, I agree with the rest of your comment, too.

[Added] But see me reply to self.

[bjkeefe]

Originally Posted by bjkeefe

Well put. Based on what little I know of that case, I agree with the rest of your comment, too.

Now that I've read a bit more, I realize there were more charges (and convictions) than I had previously thought:

A jury convicted Simpson, 61, and Stewart, 54, on 12 charges including conspiracy to commit a crime, robbery, assault and kidnapping with a deadly weapon stemming from a September 13, 2007, incident at Las Vegas' Palace Station hotel and casino.

(source, via)

So, I dunno. The penalties do not seem unusual given the convictions. I have no opinion on the merit of those convictions (instead of the earlier jury nullification, we now have jury vilification, perhaps?), but I have not heard any buzz about these charges being trumped up, and it appears the events that happened are not very much in dispute. (Except for OJ's spin on them, of course.)

I also think you're probably not right about the 33 years. That's the theoretical maximum. The article I linked to and others I have seen suggest it's more like 15, with parole possible after nine. One of Simpson's attorneys, from the same article, said it could have been a lot worse -- he could have gotten life. See here, for a breakdown of the sentencing.

[Wonderment]

I have not heard any buzz about these charges being trumped up, and it appears the events that happened are not very much in dispute.

I have actually read a lot about the case being way overcharged.

Whenever famous people are involved things get screwy, and overzealous and perhaps vindictive prosecution is an issue here.

But even in routine cases, prosecutors will often slap 10 absurd felony charges, where one will do, in order to plea bargain the case down to something the defendant can live with (as opposed to risking life in prison at trial).

In this case, either they wouldn't plea bargain because they wanted to nail OJ, or he wouldn't take a plea because he's a bit of a lunatic. I'm inclined to think it's the former because his attorneys are not lunatics.

Some of the charges are inclusive and suggest double jeopardy. For example, he was charged with robbery and assault. That's like charging a man who strangles his wife with murder and battery.

Also, it was an all-white jury. I think the prosecutors probably covered their asses in jury selection, but it might raise a flag on appeal.

The sentencing judge acted within the guidelines, although if you think of OJ a sixty-year-old man with ZERO prior convictions, the crime doesn't really seem to merit 15-33 yrs. There is a mandatory gun "enhancement" in Nevada, but again these "enhancements" are party favors for prosecutors and one of the reasons why we lead the world in incarcerations.

[bjkeefe]

Originally Posted by Wonderment

I have actually read a lot about the case being way overcharged.

Okay. I'm in no position to debate it. Haven't been following the story.

[basman]

The prosecution of the case and its sentencing result illustrates a problem with electing judges and prosecutors. We don't have that in Canada, and by this judges and the prosecution are more immune from political considerations--no one is totally immune--and may be nearly entirely immune from political calculation, a more invidious thing in the administration of justice.

Itzik Basman

[bjkeefe]

Originally Posted by basman

The prosecution of the case and its sentencing result illustrates a problem with electing judges and prosecutors. We don't have that in Canada, and by this judges and the prosecution are more immune from political considerations--no one is totally immune--and may be nearly entirely immune from political calculation, a more invidious thing in the administration of justice.

Itzik Basman

I remain unconvinced of the superiority of either system. Appointing judges and other officials means patronage is always a consideration, as are other worries like ideological purity tests which can lead to a zealot appointing another zealot, or an incompetent, without there being any good way to get the official out of office. But you did say "no one is immune," so please treat my remarks as for-the-record, and not as throwing down the gauntlet. There is no question that campaigning for certain offices is a bad thing in many ways. My pet peeve is District Attorneys, who invariably run on, and get elected by virtue of, conviction rates. I suspect you don't need me to elaborate on this.

As for patting yourself on the back about the supposed superiority of the Canadian way in general, though, let's just say, I wouldn't.

I kid. I kid.

[basman]

Originally Posted by bjkeefe

I remain unconvinced of the superiority of either system. Appointing judges and other officials means patronage is always a consideration, as are other worries like ideological purity tests which can lead to a zealot appointing another zealot, or an incompetent, without there being any good way to get the official out of office. But you did say "no one is immune," so please treat my remarks as for-the-record, and not as throwing down the gauntlet. There is no question that campaigning for certain offices is a bad thing in many ways. My pet peeve is District Attorneys, who invariably run on, and get elected by virtue of, conviction rates. I suspect you don't need me to elaborate on this.

As for patting yourself on the back about the supposed superiority of the Canadian way in general, though, let's just say, I wouldn't.

I kid. I kid.

Patronage can be a problem and in Canada over the last 25 years institutional checks and transparencies have increasingly been built into the process so that, consistent withour politics being ideological but much less so than yours, there is no comparison in the relative ideological-freeness of our judicial appointments compared to yours, especially at the Supreme Court level. If we assume for the sake of argument that patronage has institutionally been ( or can be) solved, I am hard put to think of arguments--save for the difficulty of getting rid of bad or lazy judges-- for electing judges (prosecutors raise a whole different set of issues) considering the goal of an independent and robust judiciary. I'd be interested in considering those arguments and weighing them against what is commendable about appointing judges. You guys have both systems; we have only the latter, at all levels.

As for my patting myself on the back about the superiority of the Canadian system in general, even though you kid, you kid, I am doing no such thing of course--especially these days, as you note--and if I were to engage that question--which overall system is better-- which I don't think I could or would, I would be hard put to know where to start--perhaps the system which is more amenable to coups.

Itzik Basman

[bjkeefe]

Originally Posted by basman

If we assume for the sake of argument that patronage has institutionally been ( or can be) solved, I am hard put to think of arguments--save for the difficulty of getting rid of bad or lazy judges-- for electing judges (prosecutors raise a whole different set of issues) considering the goal of an independent and robust judiciary.

I can't argue with this, except to say that's an awfully big if. Maybe I'm cynical because American politics is more riddled with cronyism, or because we have more extreme viewpoints on certain issues that keep coming before the courts.

In the ideal, we would not elect people to any position where particular expertise is paramount, be they judges, sheriffs, prosecutors, or whatever. I'd be interested to hear what sort of checks and balances you have in Canada to help keep appointments (relatively) free from problems like patronage.

[basman]

Extract from a report:

1. In Canada, the Governor in Council appoints the judges of the Supreme Court of Canada and the Federal Court of Canada by letters patent under the Great Seal.

2. In Canada, the Parliament save the Prime Minister, who is the head of the
executive branch, is not involved in the process of appointment of judges of
the Supreme Court and the Federal Court. The Parliament has no power
either to recommend candidates for such appointments or to review
appointments once they are made.

3. The Prime Minister is responsible for making recommendations to the Cabinet of the appointment of the Chief Justice and judges of the Supreme Court and the Chief Justice of the Federal Court. Candidates are selected by the Prime Minister on the basis of investigations and consultations made by the Minister of Justice.

4. The Minister of Justice is responsible for making recommendations to the
Cabinet according to the appointment of judges of the Federal Court. Qualified
lawyers must apply in writing to the Commissioner for Federal Judicial Affairs
for an appointment of judgeship of the Federal Court. Members of the legal
community and all other interested persons can nominate eligible person for an
appointment of judgeship of the Federal Court.

5. An Advisory Committee on Judicial Appointments is established in each
province and territory to assess the qualified lawyer. Each committee consists
of seven members of the bench, the bar and the general public. The
Committees are asked to assess candidates on the basis of three categories -
"recommended", "highly recommended" or "unable to recommend" for
appointment. All Committees consultations and proceedings take place on a
confidential basis.

And a CBA paper if you wish to glance at it:

http://www.cba.org/CBA/submissions/pdf/04-10-03-eng.pdf

Itzik Basman

[bjkeefe]

Originally Posted by basman

[...]

Thanks. A little much to digest right now, but I'll try to come back to it.

[Added] Where's an org chart when I need one? ;^)

[Added] Found one.