Begging The Question

Thursday, March 09, 2006

BTQ Review: Some Recent Reading
The Last True Story I'll Ever Tell: An Accidental Soldier's Account of the War in Iraq by John Crawford. I liked this one. It's not as good as Jarhead, but it's not bad. Crawford was a college student in the National Guard when he got called up to go to Iraq. The book is more a collection of stories from his time there than it is a single narrative. Some of it is predictable in its absurdity: supply problems, poor relations with the locals, bad leadership. I suppose one drawback is that the book -- the ending especially -- raises the issue of how war changes a person, but doesn't offer much insight. On the other hand, the book is probably Crawford's way of getting it out of his system. Maybe I'm jaded, but I was amused at the online reviews that criticized the bad language in the book, another thing that was completely predictable to me. I guess the bottom line is that I would recommend it if you're looking for soldiers' accounts of the current war, but I don't think it will transcend this conflict and become an all-time classic of the genre.

The Colorado Kid by Stephen King. There's a line in another Stephen King story that goes, "It is the tale, not he who tells it." The more I think about it, the more I think that The Colorado Kid is an exception to King's rule. The slim volume is King's contribution to a new pulp crime series, and it reads like an idea King could never turn into a complete story. The setup is good, and halfway through, you're hooked on the mystery of a dead body's inexplicable appearance on the Maine coast. The body is that of the title Kid, and the story is about the attempt to figure out how and why he came to Maine. If you're looking for a tale about telling a story, The Colorado Kid is a good one. But if you're looking to hear a story, I'm afraid you're going to leave disappointed. It's like a tv cooking show telling you about food you can't eat: as an educational or artistic endeavor, the show might be excellent; but at the end, your belly's still empty.

Blindness by Jose Saramago. If I can keep pushing the culinary metaphors, Blindness is like a scrumptious appetizer followed by a bland, unappealing main course and a predictable, over-sweet dessert. In brief, a city is struck by a contagious plague of "white blindness." One woman, our protagonist, retains her vision but pretends to be blind to stay with her husband. Initially, the blind and the pretender are herded into a concentration camp-type setting. I thought this was the strongest part of the book, where we're treated to all manner of depravity. The confusion and panic and desperation are palpable. Later on, a scrappy band emerges from this horror into a city filled with the blind. And you don't have to have 20/20 vision to see the ending coming a mile away. I can understand that the blindness is supposed to be a metaphor and the reaction to it is supposed to be symbolic of man's inhumanity. But I thought the novel dragged and weakened when the heroic band escaped internment. I would have been much more interested to read about a civilization's long-term solutions to an epidemic of blindness. Instead, insert obligatory "nasty, brutish, and short" reference here. Okay, it's an interesting starting point and thought experiment. But could this state of nature ever evolve into a society? Saramago cops out. And I'm not even mentioning the distracting prose style, lacking quotation marks and some necessary paragraph breaks. For what this book offers, I say skip it and rent 28 Days Later.

Sex, Drugs, and Cocoa Puffs: A Low Culture Manifesto by Chuck Klosterman. What fun! I thoroughly enjoyed Klosterman's newer book, Killing Yourself to Live, so I decided to pick up this one. It's even better. It's a collection of essays about pop culture, which is really American culture. You'll be laughing out loud while being awed by Klosterman's insight. It really runs the gamut of topics (from breakfast cereals to serial killers), but for some people all I'll need to say is that it contains the definitive analysis of "Saved by the Bell." Read it with a loved one, so you can share Klosterman's twenty-three hypothetical questions he asks everyone to see if he can really love them. I don't want it to seem pretentious if I say that if you like this blog, you'll love Sex, Drugs, and Cocoa Puffs. The fact is that I share Klosterman's obsessiveness and pop culture geekiness, but lack his ability to be truly funny and insightful -- as well as the ability to make a lot of money watching tv and listening to music. Anyway, highly recommended.

Word Freak by Stefan Fatsis. Speaking of obsessiveness. Fatsis is a Wall Street Journal reporter who decided to write about the world of competitive Scrabble. He started playing again, and got hooked, eventually raising his Scrabble rating to near-expert levels. (That doesn't give away anything you can't figure out from reading the Table of Contents.) It's a nice narrative device. As Fatsis gets deeper into the Scrabble subculture, he tells us the history of the game and introduces us to some of the characters who play at the highest level. A lot of these people would like to see Scrabble get the kind of attention that chess (or even the spelling bee) get -- with big prize money and appearances on ESPN. Ain't gonna happen, because the game as played at championship level is so different from an average "living room game" that it might as well use an entirely different language. Even if the home viewer could grasp the high-level board and rack management theory, the words might as well be strings of random letters. (A philosophical question: What is a word? If a word only has value because it represents something, what are these constructions if they're never, ever used in a non-Scrabble context? If they represent nothing other than scoring opportunities, are they really part of the language? I would watch Scrabble on tv if the players had to know the definitions of the words they played, and could use them in a sentence. And if their opponent could call "bullshit" on fake words and make the proponent drink.) This was the frustration of Word Freak for me. The farther along Fatsis went, the less I understood what he was saying. I'll admit that I wanted to find an old Scrabble board and play a game by the time I finished the book, but I quickly recognized my limited skills in word memorization, and shelved that idea along with the book. I'll never be a word freak.

Wednesday, March 08, 2006

Chief Justice Roberts and Citations to Legal Scholarship
Professor Bainbridge here and Ethan at PrawfsBlawg here point to a nutty argument by David Barron, a Harvard Law prof, that Chief Justice John Roberts won't cite anything not written by someone in the government. Essentially, this boils down to a complaint that the Chief Justice won't cite law review articles.

I suppose, maybe just maybe, there might be something worth being concerned about if the Chief took a categorical approach that "law reviews are evil." After all, it might affect who he hires as his clerks! And I guess if one assumes Barron's contention that law review articles reflect "the broader legal culture," it's reasonable to hope a Justice at least considers legal scholarship if the Justice cares how a decision will affect that culture. Consider also that one can be aware of legal scholarship without having to cite it in an opinion. Frankly, the sample size of signed Roberts opinions is too small to draw any definitive conclusions yet. (I will say that, regardless of whether I agree with the outcomes, I have found the Chief's opinions so far to be pretty darn well written.) But the bigger problem with Barron's argument is that it's simply wrong.

Before I could dash off this post, one of the commenters at PrawfsBlawg beat me to the punch and noted that Chief Justice Roberts cited a law review article (written by one of his mentors, Judge Friendly) in his very first signed Supreme Court opinion, Martin v. Franklin Capital Corp. See slip op. at 6 (citing Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982)). While this wasn't a con law issue (the primary focus of Barron's post), it at least shows that Roberts is aware that legal scholarship exists. Note also that this cite was well publicized at the time. For example, see Prof. Kerr's post at the Volokh Conspiracy here. It seemed as if Roberts went out of his way to explicitly cite his two mentors, the two judges he clerked for, Judge Friendly and Chief Justice Rehnquist.

It's also possible that the Friendly cite is sui generis, or exempt from Barron's criticism because it was written by a judge and not a law professor. Is Roberts nevertheless hostile to legal scholarship from non-governmental writers? Fewer than five minutes on Westlaw turned up then-Judge Roberts's concurring opinion in Acree v. Republic of Iraq, 370 F.3d 41, 63 n.2 (D.C. Cir. 2004), wherein Roberts cites a student note! (See page 37 of this 40-page pdf.) The note is about the Chevron rule governing judicial deference to executive agency decisions, and that fits within the broader constitutional framework of separation of powers. So maybe Roberts is willing to cite students on con law issues, but not con law professors.

I can't blame Prof. Barron for not remembering Prof. Kerr's post from three months ago. Recalling that post, and its mention of the Friendly cite, was what raised the red flag for me when I saw Barron's post. And I suppose it could have been difficult for Barron to check into Judge Roberts's D.C. Circuit opinions. But I think Barron is trying to hard to make a "pattern" primarily based on this week's Rumsfeld decision. So Prof. Barron's articles aren't getting cited by the Chief Justice. At least his blog is getting lots of cites on the internet!

Tuesday, March 07, 2006

bitter melodies turning your orbit around
Alas, Milbarge is right. Taunting Happy Fun Ball has met a sad and inglorious end. I hesitate to speak of the loss, being so recent, but catharsis is good for the soul they say (of course, they say lots of things, so don't you believe them.)

It all started last Wednesday, when I happened to check my old Yahoo account. It's the one I use to register for everything, so it's just loaded with spam. Ergo, it gets ignored quite often. But as I said, I happened to check it and saw an email from Apart from their appalling commercials, I have no complaints as it has been a pretty cheap and painless domain registration company. Anyhow, the email said this:
Per your request, the items listed below have been cancelled
from your account, 2982974:

..COM Domain Name Registration - 1 Year: TAUNTINGHAPPYFUNBALL.COM

If you feel this cancellation has occurred in error or you need
further assistance, our support staff is available 24 hours a
day, 7 days a week....
I, of course, felt this had been in error. After all, I made no such request. So I wrote back to them and said:
This cancellation is in error. I have not made any such request.
Short. Simple. To the point. As was the answer:
Thank you for your email. The domain name TAUNTINGHAPPYFUNBALL.COM expired on 1/18/2006 and was held in a short grace period to allow the registrant to renew. Given that the domain was not renewed in a timely fashion, the domain name was removed from your account, and has since been registered by another party.
OK, I have since gone back into the depths of the Yahoo account, which was the one used when this domain was registered and YES I did receive a notice there was a billing error. And yes, my address had changed on my credit card. After all, I've moved three, soon to be four times, since I registered THFB back in the d-a-y. So I really can't blame them. Except, I can, because this is a blog and they have no say. See, if you are going to cancel account, simply do it. Grace period? Great. I appreciate it. But don't tell me it was my idea. Say "you are a dumb a&% and forgot to pay your bill"! Because it was the truth. If I'm being stupid, call me on it. Don't say it was my request and then backtrack, because then you look stupid, when really, it's all me.

The long and the short of this sorry affair is THFB is gone. No more. Poof. I don't feel right about getting some ultimately lesser (to me) domain, like or, even if those are available. I feel like I had my shot to catch lightening in a bottle, and anything less is just simply Michael Jordan in a Wizard's uniform. What am I going to do? I don't know. But how often do we get a chance to reinvent ourselves? I'm curious, though, do other bloggers once in a while feel like they want to shed their current identity? Mostly, I'm talking about those who publish under a psuedonym, but this could include those who actually use their name? Ever get tired of being you, or at least the you that is out here in cyberspace? Sometimes I felt that, but, really, after two years, I was getting pretty comfortable with my voice, and sometimes, the lack thereof.

Regardless, Milbarge has graciously offered me this chance to guest post at BTQ for a while. I feel a bit like Garry Shandling on the Tonight Show. I am for now talking on my new persona of Ace Tomato Agent. Two points if you know the reference without looking it up. And you aren't Milbarge or Fitz-Hume. I have no idea what I can contribute to these parts, but we shall see.

Do Not Taunt Happy Fun Ball BTQ
If, like me, you've clicked over to the web location for the fine blog Taunting Happy Fun Ball in the last few days, you may have noticed something amiss. It seems that Mr. Fun Ball, proprietor of the site, had a little snafu over his domain name and fell through the cracks in the internets. But I'll give him an opportunity to explain further if he wants, because I've invited Mr. Fun Ball, or whatever he wants to call himself now that his eponymous domain name is gone, to guest-blog here at Begging the Question for a while, until he figures out his next web move. I hope former Fun Ball readers who already read BTQ will appreciate the chance to hear from the man again, and I hope that former Fun Ball readers who are new to BTQ will come back often. So, welcome to Mr. Fun Ball! Enjoy the guest-blogging stint!

Monday, March 06, 2006

"Why don't you just tell me the name of the movie you've selected?"
Some movie thoughts, post-Oscars. (Post title from here.)

1. Tyler Durden's take on Ben Stiller's "zany" green screen suit stunt during the Academy Awards broadcast: "Ben Stiller is embarrassing. Watching him try to be funny is like watching your mom dress sexy. You just end up staring at the floor, praying for the moment to end." Or, like most normal people, turn the channel. I remember someone (I thought it was this "New Yorker" profile but it wasn't) talking about his role in the original Meet the Parents, when he had to wear that speedo. The joke was supposed to be that people look bad in speedos, but he was so vain, and had his abs so sculpted and all, that he looked like the kind of guy who can actually wear a speedo. It would have been a joke if he had some love handle or extra ass hanging out, but no way was Stiller going to look like that. I think last night was another good example. That bit was terrible. But if you think about it, it actually has a shred of potential. All I have to do is say "imagine Jack Black or Will Ferrell or even Conan damn O'Brien doing that greensuit bit!" Those guys are truly willing to look ridiculous. Stiller's whole style is instead to stand there emoting "Look at how ridiculous I'm acting!" It's hard to be comedic when you're unwilling to make fun of yourself.

Speaking of making fun of himself, a brief word about host Jon Stewart. I thought he did fine for the most part, and in some places was quite funny (I'm including the fake "attack ads" here). And casting about the web today, I got the impression that most people who actually watched the show felt generally the same. He was not awesome, but not awful. Enough people mentioned how shaky Stewart seemed at the outset that it would seem to make sense that he would do a better job if given a second chance, free of beginner's jitters. But it seemed like the one cohort who uniformly drubbed Stewart were the professional tv and movie critics. It was as if they wanted a real "star" as host to justify the importance of what they do.

2. I was reading in "Entertainment Weekly" about the long, tortured process that will culminate in Basic Instinct 2 (formerly known as Basic Instinct: Risk Addiction). It's already gotten a bit of buzz because the trailer makes it look like something even Cinemax would be too classy to air. Via the Superficial, here's a link to the very NSFW trailer. Anyway, the "EW" story relates that at one point a few years ago, when the sequel project was dead, Sharon Stone sued the studio for the money they promised her for doing BI2. And the studio decided that it would be easier (and maybe cheaper), instead of paying Stone to go away, to pay her to make the movie! One of those "be careful what you wish for" moments, maybe. So Hollywood is wondering why its box office is down, and yet apparently has no problem when Hollywood economics dictate paying someone to make a crappy movie rather than, I don't know, not making crappy movies.

3. So last night at the Oscars, the motion picture Academy tries to cajole people into going to the theater to watch showing us the movie clips on our little television screens. "See how terrible this looks?! Go to the megaplex!" First, did you notice how the set was designed to look like the outside of a movie house? I thought that was nice for what it was, but it's not like it would make me more willing to go to the cinema. I mean, maybe if Jennifer Garner were going to come stumbling out of the theater, then I would stand in line.

But what Hollywood just can't swallow is that, while the theater experience, with the big screen and the big sound, might be the optimal way to see movies, it has some drawbacks. I would go to the cineplex more often if they guaranteed that (a) I could start the movie whenever I wanted, and pause it anytime I pleased, and (b) no one bugged me, including crying babies, loud teenagers, or idiots on cell phones. Absent that guarantee, it's usually not worth it to me. And for the price at which I could buy that guarantee (i.e., renting out the theater for a showing), I could buy a huge screen and huge speakers for my home. And for 99% of the population, that at-home experience, even if it's not "perfect," is good enough.

How hard is this to imagine: In the future -- in my lifetime -- the whole Oscars broadcast is like it is now when they hand out awards for short live-action film and best foreign film, because very few people will have seen the big studio releases they're celebrating. Instead, they'll be waiting till the dvd's come out. Was this the lowest combined box office ever for the best picture nominees? Is that an abberation? I wonder how long it will be before the Oscars has a "best straight to dvd film" category.

I can't solve all of Hollywood's problems. And frankly, the sun is probably setting on Hollywood as we know it. But here are a few concrete, doable, suggestions for the near term.

First, the Academy should make available on the Oscars web site all the short nominees: live action short, animated short, and documentary short subject. (In a perfect world, you'd be able to download all the nominated films from the Academy, but I'm not going to get delusional.) Heck, if they charged 99 cents to watch them, it would likely out-gross whatever take these short films make now. And how are viewers supposed to care about movies they haven't seen and will probably never have a chance to see?! It's not like the local googolplex is going to show short documentaries, or even short cartoons. Hollywood should figure out a way to let us see these movies, even if it's on the "small screen."

Second, a studio or theater chain (or all the studios?) should offer post-Oscar discounts on any award-winning movie. For one thing, imagine the game theory if only one studio promised discounts: Would the voters feel pressured to reward the studio's gambit, knowing that the public will be rooting for that movie? I know that movies typically boost their box office takes after winning awards. But the studios should boost the boost. The public's calculus is this. They want to see the film that just won an award, so they can go now and pay oodles of money for that sub-optimal experience discussed above, or they can wait a couple of months until the dvd comes out. (An ever-shrinking window, remember.) Theater chains want butts in the seats (and drinks in the cupholders), so they have every incentive to give post-award discounts -- the market can set the price that would maximize the award boost.

Third, if the motion picture Academy wants to convince us that the theater is the only place to truly experience the magic of the movies, it should show the Oscar broadcast in theaters. (This would be in addition to the television broadcast.) Who goes to the movies on a Sunday night, anyway? So it's not like devoting a screen to the Oscars would dent the box office. Naturally, it shouldn't cost as much as a regular movie, but it should be presented like one. Re-package the ceremony to make it more like a movie. (Hint: fewer acceptance speeches but no hustling winners off the stage after ten seconds.) Show us those clips with the original sights and sounds. The Academy should take the old advice to "Show, don't tell." Instead of earnestly pleading that we appreciate how great Hollywood movies are, and how the theater is the best place to soak them up...prove it.

I know this is probably a lost cause. But those are a few changes I'd like to see regarding the Oscars. For disclosure's sake, the only nominated film I saw last year was Enron: The Smartest Guys in the Room, which was nominated (and lost) for best documentary.

Tea Leaves in the Solomon Amendment Opinion
Today the Supreme Court issued its decision in the Solomon Amendment case, Rumsfeld v. FAIR. The Court unanimously concluded that colleges receiving federal money have to grant access to military recruiters, regardless of whether the military complies with the schools' non-discrimination policies.

I suppose it's natural for law nerds like me to read the Court's opinions with an eye toward the next fight. And in that mode, I was intrigued by a paragraph on page 8 of the slip opinion (cites omitted):
The Constitution grants Congress the power to "provide for the common Defence," "[t]o raise and support Armies," and "[t]o provide and maintain a Navy." Congress' power in this area "is broad and sweeping". . . . That is, of course, unless Congress exceeds constitutional limitations on its power in enacting [] legislation."
Now, there's nothing particularly remarkable in that statement. But when viewed in light of the ongoing controversy over the Executive's power as Commander-in-Chief in the war on terror vs. Congressional power to limit the President's authority regarding, say, detainees or wiretaps, this passage could take on more import than mere throat-clearing at the opening of the Court's discussion of the Spending Clause issues in the Solomon Amendment case.

It's certainly overstating the case to say this is decisive language. And I'm sure, if and when a case reaches the High Court, that the Supremes will take seriously the President's argument about the breadth of Article II authority. But language like this in a unanimous opinion isn't accidental. And I don't think it's unreasonable to suggest that it means the Supreme Court thinks Congress's role in military affairs is more "broad and sweeping" than the President would always like. Or, maybe I'm just grasping at straws for something to post about.

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    Milbarge Recommends

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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