Should State Bars Shield Judges from Criticism?

If you're a lawyer, should your free speech rights be curtailed? Before you criticize judges, see here for NYT article (John Schwartz, 9/12/09). The Florida State Bar reprimanded Sean Conway, an attorney, for his blog posts about local judges.

Personally, I am very conflicted. On the one hand, we should respect judicial independence, and we already allow judges to issue gag orders to prevent jury prejudice. But other than judges and lawyers--who are most familiar with the legal system--who else is able to provide reliable information on our court system?

In the final analysis, judges are government employees, not kings and queens. They are 1/3 of our representative government. It makes little sense to shield them from criticism, assuming such criticism does not negatively prejudice the parties in the case. In short, judicial criticism should turn on how the criticism affects the parties, not lawyers or judges.

David Feige, from New York, posted an interesting comment:

Judicial accountability is critical. Awful criminal court judges too often fly below the radar, eviscerating critical constitutional protections, and harming the mostly poor and disenfranchised who appear before them. It is here, more than almost anywhere that free open debate, and even freewheeling and critical commentary should be encouraged, not chilled.

Real judges have the temperament to roll with the punches, and admire and encourage argument in order to bring the truth to the fore. The fact that a judge seeks to squelch discussion, and intimidate opponents says everything one needs to know about their fitness to judge.

Amen, David.

Barry Ritholtz on 9/11

Barry Ritholtz talks about Bush and 9/11 here. A snippet:

When people ask why I dislike the presidency of George W. Bush, it was that colossal failure to rise to greatness on that occasion, and indeed, to engage in a series of decisions that not just in retrospect, but at the time, simply reflected terrible judgment.

Unlike many others, I only blame W in small part for ignoring the warning pre-9/11. But for the catastrophic series of decisions that followed, I hold him 100% accountable.

After 9/11, the entire world supported the United States of America. Iranians held candlelight vigils. NATO pledged immediate support. What the heck happened from September 2001 to November 2008, and why did it take so long for Americans to reject Bush's policies?

The comments on Barry's blog are also worth reading--here's one from "How the Common Man Sees It":

Though we are quite in agreement on economic matters, I am a conservative Christian that disagrees with you on many issues and I have told you so many times.

This one is not one of them.

One of the greatest failings of the modern conservative movement is its inability to admit when it was wrong. The desire to circle the wagons is only making their circle smaller. That provides for even less protection in the long run. I am beginning to believe that conservatives created, or at least inflamed the rebellion of the ’50’s and ’60’s due to rigidness alone. I just hope we learn in time so that we aren’t lost in the wilderness for another generation. The Western world can no longer afford a one party state.

HERE is my post on terrorism, titled, "The Unusual Suspects."

More links:

http://www.law.umkc.edu/faculty/projects/ftrials/moussaoui/zmsamit.html

http://www.historycommons.org/entity.jsp?entity=david_frasca

http://blogs.state.gov/

SCU Magazine's Interview with Avraham Burg

Santa Clara University's Professor Farid Senzai interviews Avraham Burg, former speaker of the Knesset (i.e., Israel's Parliament/Congress). Here is the interview (Scroll down to "An interview with Avraham Burg," Santa Clara University Magazine, Fall 2009)

On "Never Again":

Among the Jewish people, there are two kinds of people who came out of Auschwitz: Those who say never again is never again for Jews; and, therefore, let’s have the biggest walls around us and the deepest shelters on top of us, and make sure that no Jew will be ever persecuted. The others—and I belong to their fav, or their body—say never again means never again to anybody around the world. I have to do my utmost to prevent the indifference to the "other", whoever he or she may be: the raped woman in Darfur, the boy in the inner city of Detroit.

On Peace in the Middle East:

Let me tell you an anecdote: There was a day I was driving my car on the eve of the Jewish New Year in Jerusalem. The air conditioner was broken, the heat impossible, the traffic jam like only in Jerusalem on the eve of the New Year—and on top of it, there was a bomb threat and the city was stuck. I was sitting with my then-7-year-old son and my 80-some-year-old father. My son was very short-tempered: He was hungry, he wanted to pee—you know the drill.

He said, “Daddy, how the hell do you want to make peace with these Arabs who bomb us at the eve of the New Year?”

I was contemplating: Should I simply silence him? Should I give him a philosophical answer? Should I just ignore it? I was sitting there angry at the traffic, angry at the weather, and then from the backseat my own father, who had escaped from Berlin in September '39—-imagine, the very last second—-said to my son: “I want you to listen very carefully. I felt at the time that there would never be peace between us and Germany. Whatever they did to us is a thousand times worse than what we do to the Palestinians and what the Palestinians are doing to us. Now we’re 40 years after the Holocaust. Here, peace with Germany. In your lifetime you will see peace with the Palestinians."

More on Israel here.

Is Christianity the Key to Civilization?

[Update: Arnold Kling corrects me, pointing out that he "was explaining what I think conservatives believe, not what I believe." Mr. Kling's blog post now states, "Again, these are what I think of as conservative beliefs, not what I believe." My post below has changed to reflect Mr. Kling's correction.]

Arnold Kling summarizes what conservatives believe, saying, "Christianity is the key to civilization and, dare one say it, the most progressive force in history." For his full post, see here.

Commenter Tom Hickey dismantles the so-called conservative argument handily:

There are several inconsistencies with this picture.

1. It seems obvious that instead of going downhill, human progress is improving with technological advancement that has vastly improved life for 99% of the the people in developed societies. Christendom was feudal. These "lost virtues" are basically a variation of the romantic ideal of the "noble savage" and the lost "Golden Age."

2. Technology, not Christianity, has been the driving force of modern civilization. Christianity has been and continues to be the enemy of science. As technology enabled leisure for universal education, life became more rational and intelligent, allowing for the establishment of democratic societies. The Enlightenment thinking that lead to democracy was not based in Christian values as much a rational thought that revolted against imposition of ideology. The founding Fathers were not "Christians" in the sense that many use this term today, and many were Deists.

3. Free markets have often led to the "social degradation" that conservatives decry, and many conservatives think that restrictions in the form of censorship could have prevented this loosening of social norms. It can reasonably be argued that the pursuit of profit has led to the pushing of the envelope of social norms, not "social degradation" pushing business. This is the old, "the devil made me do it," excuse.

Finally, caricaturing liberalism/progressivism as believing that wisdom resides with progressive elites is setting up a straw man. That is just ideological bias that fails to grasp what liberalism is about, not a reasoned statement of genuine issues. Liberalism/Progressivism is broadly based on J. S. Mill's On Liberty and Utilitarianism.

I added the following comments:

If Christianity is the key to civilization, then what about the Persian Empire, which was non-Christian? Plenty of evidence shows that great civilizations may be non-Christian--see Incas, Angkor, etc.

Moreover, assuming that violent oppression and unnecessary/excessive killings of civilians and innocent persons is not progressive, your thesis fails. If, for example, Christianity was the most progressive force in history, then why did an overwhelming number of American Christians tolerate the peculiar institution of slavery? [Could it because Christ himself never took an express stand against slavery?] Why did an overwhelming number of American Christians deem non-whites inferior and less deserving of equal legal protection for numerous decades? Why did American Christians, with the backing of state governments, use police dogs and fire hoses on non-violent civil rights protesters? If we agree that Southerners are more Christian than non-Southerners, then the last 100 years seem to rebut the idea that Christianity and civilized society go hand in hand; after all, fewer places in American have been more Christian and less progressive than the South.

Furthermore, why were most participants in 20th century killings and pogroms from majority-Christian countries? In fact, Christian-led governments and their soldiers have caused the most violent losses of human life over the past hundred years. See, for example, Washington's America and the Native Americans; Lincoln's America and the Civil War; Hitler's Germany; Nixon's America and Vietnam/"Operation Menu"; Truman's America and Hiroshima; Bush I's America and Iraq; Bush II's America and Iraq/Afghanistan. This violent historical record doesn't mean Christianity is wrong or inherently evil--it just means that people in power tend to oppress others who are different, regardless of religion.

Some people may argue that the aforementioned Christian-led killings were made with good intentions, but try your progressive religious argument on the millions of innocent African (slaves), Native American, Jewish, Vietnamese, Cambodian, Iraqi, and Afghan civilians who have been murdered by Christian-led governments.

In the end, I suppose it depends on your particular viewpoint. If you're an American Christian in the year 2009, America is a progressive place. As a result, I can understand why some American Christians would associate progressiveness with Christianity. However, as the death tolls above indicate, no religion can call itself progressive or truly peaceful--whoever is in power at any particular time kills whomever they consider to be "the other." Religious differences are one way of inventing "otherness" and superiority, which allows our conscience to avoid responsibility for the deaths we cause.

Being from Silicon Valley, I may be biased, but I agree with Tom Hickey: "Technology, not Christianity, has been the driving force of modern civilization." Assuming all religions may incorporate and contribute to technological advances, then associating any particular religion with progress is a subjective, historically-myopic, and divisive exercise.

[More here on religious assimilation.]

Burke A. has an excellent response to my comment:

I don't think conservatives believe that civilizations didn't exist before Christianity. Just that the enlightenment and our current American civilization is a product of that values system. Christians were/are not a more moral people, in fact the Christian ideology is a refutation of that very idea. Christianity didn't somehow support slavery because some Christians were apologists for it. Slavery is a human institution far older than Christianity, and most of the fervent abolitionists were zealous Christians.

Nor is it Christianity reflexively anti-science. Unless you think that there should be no restrictions on what a scientist can do, regardless of the effects on other people. Sure the Religious Right opposes things like embryonic stem cell research, but they certainly aren't opposed to all kinds of science. They just disagree with the moral judgments that certain scientists are making. And frankly, scientists are no more qualified to make those judgments than religious zealots, because Science is equipped to ask how, not why, or whether something is moral. It's outside the domain of science's expertise.

Furthermore, why were most participants in 20th Century wars and pogroms from majority-Christian countries? In the past hundred years, evidence shows that majority-Christian civilizations were the most violent of all. In fact, the one entity that has caused the most loss in human life over the past century has been Christian governments and their soldiers...

What about Mao's China, and the bloody wars of tribal humans? I'd say that Christians were no more or less violent than other cultures--we are just more aware of the violence of nominally Christian populations, because that culture is dominant in the Western world and that is the history we study. I also think you are making an error of attribution if you assume that Christianity is the cause of the violence. Just as you attribute the blame of slavery to Christianity. Did Christians practice slavery? Sure, but they were the first people to offer opposition to the institution and eventually make it illegal. To paraphrase, Christianity is the worst belief system on earth, except for all others.

My response to Burke A. is below:

If we eliminate wartime deaths, then you are correct--Mao and Stalin, both non-Christians, caused the most deaths in the 20th century (we'll go ahead and equate being bombed to death with being starved to death, even though part of me doesn't feel right about that comparison).

As for slavery, however, didn't the Islamic Prophet Mohammad condemn slavery on the basis of color/ethnicity centuries before most Christians accepted that such slavery was morally wrong? See, for example, the story of Bilal ibn Rabah.

Also, compared to Judaism and Islam, wasn't Christianity late in condemning slavery on the basis of color or ethnicity? [Jesus Christ does not condemn slavery anywhere in the written record, nor does the New Testament.] For most of its history, Christian America seemed to have few qualms about mistreating/raping slaves or treating persons more harshly because of the color of their skin. In contrast, it appears that Islamic societies tolerated slavery but required better treatment of slaves. Of course, without a written historical record from slaves themselves, it's anyone's guess how they were actually treated, but evidence is clear that Islamic law and culture frowned upon harsh treatment of slaves.

According to Prof. Jonathan Brockopp, for example, "Other cultures limit a master's right to harm a slave but few exhort masters to treat their slaves kindly, and the placement of slaves in the same category as other weak members of society who deserve protection is unknown outside the Qur'an. The unique contribution of the Qur'an, then, is to be found in its emphasis on the place of slaves in society and society's responsibility toward the slave, perhaps the most progressive legislation on slavery in its time." [See also work by Professor Salman bin Fahd Al-Odah aka Salman al-Ouda.]

Economics Blog and Natural Gas

I can't believe I just learned about Loren Steffy's economics blog.

Here's one post on the Baker-Hughes/BJS merger and the price of natural gas. An analyst states that the deal makes sense if natural gas prices will return to at least $6.50 per thousand cubic feet by 2011.

I own some BJS shares. I wish there was a better way to play the price of natural gas than UNG and GAZ. Both rely on natural gas futures, not the price of natural gas itself. In addition, neither FCG nor ENY reliably track the price of natural gas because of contango.

Wall Street has invented numerous exotic products, including ways to profit from precious metals; indeed, gold and silver investors have several reliable options. But when it comes to creating a way to track the price of natural gas, suddenly, Wall Street is stumped.

Some people contend that a reliable tracking product must store the underlying physical commodity, and it is almost impossible to store sufficient amounts of natural gas. Yet, storage problems didn't stop Wall Street from having Gold and Silver ETFs. If Wall Street has products that hold gold and silver, why not natural gas?

Thousands of investors think the price of natural gas may double in two to three years. UNG, for example, trades tens of millions of shares daily. There must be many willing buyers interested in a better natural gas investment vehicle. What other investment opportunity might produce 80+% gains in less than three years? Despite thousands of investors willing to risk investing in a natural-gas-price tracking product, there is no reliable way to invest. It makes no sense whatsoever.

Fewer Educated Women Having Kids

According to the Rutgers University Marriage Project, the higher a woman's education level, the less likely it is that she will have children:

Women with four-year college degrees or better are more likely to be childless than women with lower levels of educational attainment. In 2006, for example, slightly more than twenty-four percent of women, 40 to 44 years of age, with a bachelor’s degree, and 27.4 percent of women, 40 to 44 years of age, with graduate or professional degrees were childless compared to only 14.9 percent of those without a high school degree.

Sources: Tim B. Heaton, Cardell K. Jacobson, Kimberlee Holland, “Persistence and Change in the Decision to Remain Childless,” Journal of Marriage and the Family 61 (1999), 531-39. 7; and Jane Lawler Dye, Fertility of American Women: 2006, Current Population Report P20- 558, Washington, D.C: US Census Bureau (2008): Table 2, 5.

Where's Susan Faludi when you need her?

Can't Make Noises the Government Doesn't Like

Check out Penal Code 415:

Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:

(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.

(3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.

Is it just me, or do (2) and (3) sound unconstitutionally vague?