Harvard Prof: Abort the Court as a Last Resort

Me: Okay, liberals, you lost on the Kavanaugh thing.  It’s important that you keep your wits about you, regroup and not get too crazy.

Vox:

I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court.

Tushnet, taking a position I’m absolutely sure he held before Justice Kavanaugh was sworn in, seriously argues against the very idea of judicial review:

…as a matter of basic democratic principle, the people ought to be able to consider policies and then vote on them without having the courts step in and say “no.” So from a democratic point of view, it’s hard to justify allowing the courts to single-handedly overrule popular will whenever they choose.

Here in Canada that’s why we have section 33 of the Canadian Charter of Rights and Freedoms, aka the “notwithstanding clause.”  And in Quebec it’s working out just great for vulnerable, marginalized groups.

I can’t say I’m happy with American politics at the moment.  But please, Democrats, spare me your whining about rules you were perfectly okay with when you were winning.

UPDATE: you will not be remotely surprised to know Tushnet felt differently when he thought Hillary was going to win.

When Sears sold houses

As the once-mighty Sears retail empire faces bankruptcy, the 99% Invisible podcast features the houses Sears once sold through its mail-order catalog.  Yes, houses.

built-by-customers

From 1908 to 1940, the Sears Modern Homes Program offered complete mail-order houses to the would-be homeowner — what would come to be called “kit homes.” Customers could select from dozens of different models in Sears Modern Homes Catalog, order blueprints, send in a check, and a few weeks later everything they needed would arrive in a train car, its door secured with a small red wax seal (just like the seal on the back of a letter).

This seal was to be broken on arrival by the new owner, who would open up their boxcar to find over 10,000 pieces of framing lumber, 20,000 cedar shakes and almost everything else needed to build the home — all the doors, even the doorknobs.

The lumber came precut, kind of like a giant Ikea set, along with an instruction booklet. Sears promised that, working without a carpenter and only rudimentary skills, a person could finish their Sears mail order home in less than 90 days.

[…]

Then, in 1911, Sears began offering mortgages to their customers. Like everything else, they made these easy — maybe too easy. The Sears home mortgage program started out as one of their keys to success. In lowering the barrier to entry, it had allowed Sears to sell far more kit homes far faster than any of its competitors. But when the Great depression Hit, things got ugly fast. The company ended up foreclosing on tens of thousands of its very own customers. It was a public relations disaster.

After years of declining sales, Sears would finally close its Modern Homes department in 1940. A few other kit home manufactures — ones that hadn’t sold mortgages — survived, but the Sears kit home boom was over. Then came World War II, and with it, the next modern housing boom, featuring the rise of the suburbs and the prefab home — the kinds of homes we know today.

Once largely forgotten by history, historians and architecture enthusiasts are tracking down Sears homes that are still standing all over America – many of whose owners have no idea their houses came from a catalog.  There’s an outside chance some of them may have had Allstate compact cars, also sold by Sears, in their driveways.

Sears didn’t come to Canada until long after it closed down its mail-order house program, but a company called Aladdin Homes filled the void.

Life imitates ‘Calvin and Hobbes’

Then:

academia-billwatterson

Now:

The three academics call themselves “left-leaning liberals.” Yet they’re dismayed by what they describe as a “grievance studies” takeover of academia, especially its encroachment into the sciences. “I think that certain aspects of knowledge production in the United States have been corrupted,” Mr. Boghossian says. Anyone who questions research on identity, privilege and oppression risks accusations of bigotry.

Beginning in August 2017, the trio wrote 20 hoax papers, submitting them to peer-reviewed journals under a variety of pseudonyms, as well as the name of their friend Richard Baldwin, a professor emeritus at Florida’s Gulf Coast State College. Mr. Baldwin confirms he gave them permission use his name. Journals accepted seven hoax papers. Four have been published.

[…]

Affilia, a peer-reviewed journal of women and social work, formally accepted the trio’s hoax paper, “Our Struggle Is My Struggle: Solidarity Feminism as an Intersectional Reply to Neoliberal and Choice Feminism.” The second portion of the paper is a rewrite of a chapter from “Mein Kampf.” Affilia’s editors declined to comment.

[…]

One hoax paper, submitted to Hypatia, proposed a teaching method centered on “experiential reparations.” It suggested that professors rate students’ levels of oppression based on race, gender, class and other identity categories. Students deemed “privileged” would be kept from commenting in class, interrupted when they did speak, and “invited” to “sit on the floor” or “to wear (light) chains around their shoulders, wrists or ankles for the duration of the course.” Students who complained would be told that this “educational tool” helps them confront “privileged fragility.”

Hypatia’s two unnamed peer reviewers did not object that the proposed teaching method was abusive. “I like this project very much,” one commented. One wondered how to make privileged students “feel genuinely uncomfortable in ways that are humbling and productive,” but not “so uncomfortable (shame) that they resist with renewed vigor.” Hypatia didn’t accept the paper but said it would consider a revised version. In July it formally accepted another hoax paper, “When the Joke Is on You: A Feminist Perspective on How Positionality Influences Satire”—an argument that humor, satire and hoaxes should only be used in service of social justice, not against it.

A hopelessly tainted nomination

Usually, when a person accuses someone else of misbehavior, the accuser bears the burden of proof.  That’s one of the fundamental principles of the justice system, and one that supporters of American Supreme Court nominee Brett Kavanaugh have raised to defend him from allegations of sexual misconduct.

However, Benjamin Wittes, writing for The Atlantic, says it is the accused who bears the burden of proof this time:

… in this endeavor, Kavanaugh himself bears the burden of proof. This sounds like unjust ground to stake out in a society in which the accused is innocent until proven guilty. But in practical terms, Kavanaugh is the one who has to persuade the marginal senator to vote for him. He is the one who has to give Susan Collins and Lisa Murkowski enough confidence in him that they can vote to confirm believing they can defend their actions to a legion of angry voters. It is he, not Ford, who needs to count to 50.

The injustice, in fact, is largely optical. The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

[…]

It is, I know, a hard thing to ask of a nominee not to take a win, to go forward with the nomination only if he can prevail with no asterisks. But the last thing the court needs right now is asterisks. It’s bad enough that party caucuses in the political branches generate ideologically distinctive camps on the Court across contested political issues. It’s bad enough that Americans fight over courts in terms that don’t even pretend to honor the idea of law as a discipline independent of politics. Do we really want justices forced into office on party-line votes with pending questions of misconduct in the run-up to elections? That’s a question for Collins, yes, but it is also a question for Kavanaugh whether he wants to be such a justice. I think it reasonable to ask Kavanaugh to consider the circumstances of his confirmation, and the long shadow it might cast over his service.

Even if Kavanaugh is innocent, the damage is already done.  There is a cloud over his nomination that will never be dispersed to everyone’s satisfaction, and the Supreme Court of the United States – already viewed as a heavily partisan institution with “Republican” and “Democratic” wings – may lose whatever legitimacy it has left, especially when the opportunity arises to deal with abortion or other women’s-rights issues.  If you think things are tense now, imagine Kavanaugh and Clarence Thomas joining the majority in a 5-4 decision reversing Roe vs. Wade.

As an aside, none of this likely would have come out had Kavanaugh not accepted President Trump’s nomination to the Supreme Court.  He would continue to serve on an appellate court with his personal reputation intact.

Has anyone ever made a deal with Donald Trump and come out better off?

 

Don’t panic (yet) about 3D-printed guns

“Ready or not: U.S. unleashing 3D-printed ‘ghost guns’ for the entire internet,” bellows a typical headline on the Global News website, in response to the U.S. Department of Justice settling a case against anarcho-libertarian firearms activist Cody Wilson:

The era of the untraceable, undetectable, 3D-printed gun is almost upon us, and it’s not going to respect international borders.

That’s the concern critics are raising ahead of Aug. 1, when the U.S. will allow plans for the “Liberator” plastic pistol to be posted online for anyone to download. The previously banned weapon can be made using a nail, a bullet, and a 3D printer, and is said to be untraceable and invisible to metal detectors.

These so-called “ghost guns” are a potential nightmare for law enforcement, especially for countries outside the U.S. where the release is coming as a surprise.

Plans for the American-designed gun were originally posted online in 2013, but the U.S. State Department ordered them to be taken down on the grounds that they might be used to make weapons outside the United States.

The Trump administration reversed that decision last month, in an unexpected settlement allowing designer Cody Wilson to publish the plans on his company’s website.

However, it remains to be seen what that “age” will look like, especially since the settlement does not restrict Wilson from sharing the plans with non-Americans on the internet.

First of all, we’ve been living in “the era of the untraceable, undetectable, 3D-printed gun” for years already.  It’s not even August 1, 2018 as I write this, but it took me literally one Google search to find plans for Wilson’s “Liberator” gun, easily available for download.  (Now I’m probably on a list or something, but I do it for you, readers.)

More importantly, when you get further into the Global News story, you come to realize that the “Liberator” is more of a threat to its potential users than anyone in its sights:

…the current design is fairly brittle and inefficient.

The Liberator only fires one bullet before it needs to be reloaded, making it a poor choice for a potential mass shooting. The plastic components are also known to melt after firing the first few bullets.

“It’s not a good gun,” said Dr. ginger coons, who worked on the U of T project as a PhD student in 2013. Coons, who does not capitalize her name, is now a design researcher based in the Netherlands.

She says Wilson, a self-professed libertarian, was trying to test the Second Amendment with the original design.

“It’s more of a thought experiment than a gun,” coons told Global News.

She added that the weapon must be made with a high-end printer and special plastic to function properly, and that printing a Liberator with a low-end printer would be dangerous.

She suggests it would be cheaper to build a gun from scratch using materials from the hardware store.

Canadian 3D-printing expert Kerry Stevenson says hobbyists have been tinkering with plastic gun designs for years, but most tend to be costly and fragile.

“You can make a shot or two,” Stevenson, editor of the Fabbaloo enthusiast blog, told Global News reporter Abigail Bimman. “It’s just not a practical weapon.”

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives posted a test video of Wilson’s Liberator design in 2013, in which the gun can be seen disintegrating into pieces after the first shot.

Wilson, for his part, intends to release the plans for a 3D-printed AR-15.  You’re on notice, Darwin Awards.

That doesn’t mean something more usable and deadly won’t come along as the technology improves.  But as gun enthusiast Stephen Gutowski notes on Twitter, the American firearms landscape really won’t change much at all tomorrow.  I leave it to you to determine whether that’s a good thing.

NPR’s excellent Planet Money podcast profiled Cody Wilson earlier this year.  He comes across pretty much exactly how you’d think.

https://www.npr.org/player/embed/577744111/577796164

Good lawyering, bad PR

“MGM resorts sues victims of Las Vegas massacre”: the headlines sound downright dystopian, and the social media reaction is pretty much what you would expect.

But in context, the company’s move makes sense.

MGM, owners of the Mandalay Bay hotel and casino, are being sued for their alleged negligence in inadvertently providing a shooter’s nest for Stephen Paddock, who massacred dozens of people at a country music festival last October.   The company’s response is to seek a declaration in federal court that anti-terrorism legislation shields them from liability:

The company cites a 2002 federal act that extends liability protection to any company that uses “anti-terrorism” technology or services that can “help prevent and respond to mass violence.”

In this case, the company argues, the security vendor MGM hired for Route 91, Contemporary Services Corp., was protected from liability because its services had been certified by the Department of Homeland Security for “protecting against and responding to acts of mass injury and destruction.”

The lawsuits argue that this protection also extends to MGM, since MGM hired the security company.

They do not seek money from the victims but do ask that a judge decide if the 2002 act is applicable, and if so, determine that future civil lawsuits against the company are not viable.

Debra DeShong, a spokeswoman for MGM Resorts, released a statement about the litigation Monday.

According to the statement, “The Federal Court is an appropriate venue for these cases and provides those affected with the opportunity for a timely resolution. Years of drawn out litigation and hearings are not in the best interest of victims, the community and those still healing.”

Is the company correct?  Beats me.  That’s for a U.S. Federal Court to decide.   But just because a company – even a company involved in the morally dubious business of gambling – is facing lawsuits from sympathetic defendants doesn’t meant they’re legally in the wrong.

It’s understandable if many Americans, who can’t seem to make any headway in fighting the gun lobby and curtailing their country’s firearms culture, want someone to be punished.  And maybe MGM does indeed bear some liability.  But they are entitled to press their case to the greatest extent allowed by law.

A Chase the Ace disgrace

Lotteries always bring out the best in people, don’t they?

A photo-op to celebrate a $1.2-million lottery win in Nova Scotia turned sour Thursday when two family members feuded over the win.

Barbara Reddick of Guysborough, N.S., and her nephew, Tyrone MacInnis, posed for the cameras with a giant cheque in Margaree Forks, N.S., after winning the Chase the Ace fundraiser benefitting two local fire departments.

Reddick then pointed at MacInnis and said: “See you in court.”

“It was my ticket,” she told a group of people gathered for the ceremony. “I bought the ticket and now he’s trying to lie and say I said split. I said split with the 50/50, not with no Chase the Ace.”

“I’m taking him to court. I’m getting a lawyer tomorrow. Now you can print that.”

[…]

“I put his name on the ticket for good luck because he’s like a son to me — he was,” she said. “He was lucky, but not for half a million dollars.”

The contact number on the ticket was for MacInnis, who lives in Glace Bay, N.S.

I’ve come across many cases where someone whose name wasn’t on a lottery ticket sued the winner for a share of the money, but never a situation where the plaintiff tried to argue that the other named person isn’t entitled to anything.

The fact that she listed his phone number on the ticket will likely be relevant to this case.  But if she wants to retain my services to take her nephew to court to get all of the winnings for herself, she can give me a call.  I’ll need a $600,000.00 retainer.

Speaking of Chase the Ace, here’s my kid brother:

https://open.spotify.com/embed/track/2wVH8PSy5k3mybj1L9Ca6D

 

Chipping at ICE

As horror stories from America’s southern border continue to proliferate (an example: some young children who have been reunited with their mothers no longer recognize them) calls to abolish the Immigration and Customs Enforcement agency (ICE) have gotten louder.

Libertarian Lucy Steigerwald, in The Week, makes the strongest #AbolishICE case I’ve read:

…It is an expensive, abusive, and unnecessary agency. We should get rid of it.

ICE has only existed for 15 years, during which time America’s spending on immigration enforcement, tracking, and surveillance has swelled like a tumor. The U.S. spent $187 billion on immigration enforcement between 1990 and 2013, according to the Migration Policy Institute. Deportations increased more than tenfold between 1990 and 2011. And ICE spends $2 billion every year to hold immigrants in private detention centers known for human rights abusesOne report found that, over seven years, ICE workers were accused of roughly 600 instances of sexual and physical abuse in detention centers. This is made worse when you realize that private contractors have been benefiting from the detention centers.

We now have a tangled monster of a system that incentivizes indefinitely holding people who have committed a civil infraction by crossing the border. We are spending a lot of money to punish families for nonviolent offenses — for doing a perfectly rational thing like trying to find more work, or trying to get their children out of violent, cartel, civil war-ridden countries.

Why do we even need ICE? The agency’s main job is to find and apprehend illegal immigrants who are already in the country. In theory, this is different from Border Patrol, which is meant to patrol, well, the border, but technically can operate anywhere within 100 miles of the border. As the American Civil Liberties Union has frequently pointed out, two-thirds of Americans live within 100 miles of the border, which means two-thirds of Americans are already under the jurisdiction of both ICE andBorder Patrol. This essentially makes ICE, and its $3.8 billion annual budget, redundant. I can’t think of anything ICE does that brings added value to the country, but I can point to numerous instances of the agency unnecessarily harassing Americans.

[…]

People often claim the left loves big government. But right now, those lefties are saying the government should be a little bit smaller, and a bit less cruel. We should listen.

The problem is, many Americans read “Abolish ICE” and see “abolish borders.”  That’s the argument pushed by immigration restrictionist Mark Kirkorian and echoed by many Republicans, who are already trying to capitalize on it for the November midterm elections.

The point of abolishing ICE is to end all non-criminal deportations of illegal aliens. That would mean that every foreigner who manages to slip past the Border Patrol or who overstays a visa would be permitted to stay forever, so long as he isn’t convicted of an especially heinous crime.

That would render our entire body of immigration law meaningless. The numerical caps on various categories and the requirements to qualify would be irrelevant because there would be no agency to enforce them. #AbolishICE means nothing if not unlimited immigration and open borders.

Unlimited immigration is a defensible, if misguided, goal. But its proponents are not arguing for it honestly, explaining to voters why they should open America’s borders to the world’s poor. Instead, they’re trying to fool voters by hiding behind a hashtag.

ICE, like all tools now being wielded by this venal and incompetent administration, is doing tremendous damage, and if the midterm elections are a referendum on Trump, Democrats will win big.  But if the midterms are a referendum on whether the border should be enforced at all, they will lose.

“A really futile and stupid gesture”

It’s Bret Stephens, whose very presence in the New York Times is an affront to Democrats, so they won’t listen to him.  But he argues that rabidly opposing the Supreme Court nomination of Bret Stephens is likely doomed to fail and will probably hurt some Democratic Senators’ re-election chances:

Kavanaugh will almost certainly be confirmed. Democrats who had pinned their hopes on flipping Senators Susan Collins and Lisa Murkowski probably aren’t going to get their wish, since both Republican moderates voted to confirm Kavanaugh to his current judgeship in 2006 and have since spoken approvingly of his nomination. Rand Paul can also be counted on to feign political independence, but he usually falls into line.

Of course it’s possible Kavanaugh will make a bad public impression, like Robert Bork. Or maybe there will be a #MeToo revelation, like with Clarence Thomas. Or maybe Democrats will figure out a way to kick a vote past the midterms. In which case, Democrats can seize their chances. For now, however, the first question Democrats ought to ask themselves is whether they really have political capital to waste on a losing battle.

[…]

A plurality of Americans already want Kavanaugh confirmed, according to a Rasmussen poll. The numbers will likely improve once Americans get a closer look at this temperate, intelligent, decidedly non-scary nominee. And Democrats will again play to type as mindless obstructionists and one-note alarmists — the same overheated opposition that, as the Times’s Jeremy Peters reported last month, only hardens support for Trump.

Stephens also argues that Kavanaugh – like Roberts and Gorsuch, and Ginsburg and Breyer – is undeniably qualified for the job.  Really, aside from Harriet Miers, I can’t remember a SCOTUS nominee who wasn’t qualified.  (Mind you, some Trump nominees for lower federal courts almost make Jim “The Hammer” Shapiro look good.)

Incidentially, the late arch-conservative Antonin Scalia was confirmed 98-0 for his Supreme Court seat by the U.S. Senate, and only three Senators voted against confirming The Notorious RBG.   Imagine that happening with anyone in 2018 America.