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Saturday, April 05, 2003 :::

Commerce and kiddie porn

On March 20, the oft-maligned U.S. Court of Appeals for the Ninth Circuit got one right. The case involved everyone�s favorite topic, child pornography. Actually, the facts of United States v. McCoy describe something somewhat less sinister than an Internet kiddie porn ring:

The facts underlying the charge to which McCoy pleaded guilty arise from a single photograph taken in April 2000. The government does not allege that Rhonda McCoy, or her husband Jonathan McCoy, were or are commercial producers of child pornography. At the time charges were filed against the McCoys, the couple had two children: Kala, a ten-year-old daughter, and a twenty-month-old son. The family lived in housing provided by the Navy in San Diego, where Jonathan McCoy served as a Naval Petty Officer. Sometime in April 2000, Rhonda, Jonathan, and Kala were spending an evening at home, painting Easter eggs and taking family photographs. Rhonda, who, according to the presentence report, has a substance abuse problem as well as mental health problems, had substantial amounts of alcohol thatnight. At some point during the evening, Rhonda and Kala, partially unclothed, posed side by side for the camera, with their genital areas exposed. This pose was captured in one photograph.

Approximately two months later, Rhonda left five rolls of film with the Navy Fleet Exchange for processing. Shortly thereafter, Rodd Wilson, a loss prevention manager for the Exchange, contacted the U.S. Naval Criminal Investigation Service and informed it of the existence of photographs that appeared to present a child in sexually suggestive poses. Agents of the U.S. Naval Criminal Investigation Service, in conjunction with the FBI and the San Diego Police Department, responded by conducting a search of the McCoy home pursuant to a federal search warrant, and seizing numerous photographs, as well as the family still camera, video camera, and computer.

In January 2001, the government filed an indictment charging both Jonathan and Rhonda with four counts of manufacturing child pornography by a parent using materials transported in interstate commerce, 18 U.S.C. � 2251(b). Rhonda was also charged with one count of manufacturing child pornography using materials transported in interstate commerce, 18 U.S.C. � 2251(a).

The statutes in question make it a federal crime to produce pornography using �materials��in this case, cameras and film�that at one point traveled across state lines. In this case, the government argued that both the camera and film McCoy used to take the picture were manufactured outside their home state of California. Thus, a federal child pornography case was born, resting on a highly dubious assertion of �interstate commerce� jurisdiction.

The Ninth Circuit didn�t buy it. By a 2-1 vote, the appellate court found that the statute used in this case was �unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.� The Court�s opinion was authored by Stephen Reinhardt, a liberal circuit judge often considered the Ninth Circuit�s leading radical. In this case, however, Judge Reinhardt was right on the mark.

Constitutional challenges to interstate commerce laws generally turn on the meaning of �interstate,� and this case was no exception. But Judge Reinhardt�s opinion also correctly addressed the meaning of �commerce� itself. In this case, McCoy never intended her photograph to become an article of commerce; that is, she had no plans to sell or provide the photograph to persons outside her family. Common sense tells us that, whatever else her act constituted, it was not one of ordinary commerce. Yet the government argued that this was commerce because even if this photo was never used in commerce, it could theoretically stimulate demand for commercial child pornography.

Put another way, the government argues the existence of any child pornography is subject to interstate commerce regulation, because all such pornography contributes to the overall volume of said materials. This argument is not just speculative, but patently irrational. Applying this reasoning, Congress could ban, say, homosexual sodomy on the grounds that the existence of such sodomy might contribute to an increase in various crimes such as statutory rape or interstate kidnapping. It�s a slippery slope of tyrannical proportions�the total divorcing of factual reasoning from state action.

Given the broad scope of this law, it�s easily subject to abuse, as it apparently was in the McCoy case. To take a more cut-and-dry example, however, consider the potential plight of nudist families. Would a photograph of a nudist family including children be subject to prosecution under this statute? Yes, it would, since intent or context seems irrelevant to the government. This is far removed from what the Constitution anticipated in granting Congress the power to regulate interstate commerce.

The intent of the Constitution�s interstate commerce clause was to give Congress the power to ensure the development of a truly national economic market. The Framers were concerned about, for example, New Jersey slapping a tariff on goods manufactured in New York; the Framers were not all that concerned with what people in New Jersey did once they received their New York-made goods. In this sense, the child pornography law in question here is facially unconstitutional. Congress was not attempting to protect the process of interstate commerce, but rather to regulate private activity under the false pretext that interstate commerce might be somehow affected.

::: posted by Skip Oliva at 4:49 PM | link | donate |

Any willing altruist

On Wednesday, the Supreme Court ruled in Kentucky Association of Health Plans, Inc. v. Miller, a challenge to Kentucky�s �Any Willing Provider� law. What is an Any Willing Provider law? Justice Scalia explains in his introduction to the Court�s unanimous opinion:

Petitioners include several health maintenance organizations (HMOs) and a Kentucky-based association of HMOs. In order to control the quality and cost of health-care delivery, these HMOs have contracted with selected doctors, hospitals, and other health-care providers to create exclusive �provider networks.� Providers in such networks agree to render health-care services to the HMOs� subscribers at discounted rates and to comply with other contractual requirements. In return, they receive the benefit of patient volume higher than that achieved by nonnetwork providers who lack access to petitioners� subscribers.

Kentucky�s AWP statutes impair petitioners� ability to limit the number of providers with access to their networks, and thus their ability to use the assurance of high patient volume as the quid pro quo for the discounted rates that network membership entails. Petitioners believe that AWP laws will frustrate their efforts at cost and quality control, and will ultimately deny consumers the benefit of their cost-reducing arrangements with providers.

The specific issue in this case was whether the Kentucky law was preempted by a federal statute, the Employee Retirement Income Security Act of 1974 (ERISA), which regulates national markets for employee benefits, such as health coverage. ERISA prevents states from implementing their own benefit regulations, except that insurance regulation�traditionally a state function�is �saved� from ERISA preemption. Thus, the HMOs asked the Supreme Court to declare the AWP law did not �regulate insurance,� and thus was invalid under ERISA. Kentucky argued AWP does regulate insurance, and thus was saved from preemption.

This case was largely an exercise in statutory construction, and the result was probably correct under the circumstances. Still, the problem with the AWP law is not that it runs afoul of ERISA, but that it runs afoul of the Constitution. Any law forcing individuals to associate in a business context�here, compelling networks to admit physicians�violates the First Amendment, and more generally exceeds the federal and state government�s authority.

The government has no interest or right to initiate force for the purpose of determining marketplace structure or outcomes, and that is precisely the point of an AWP law. Kentucky�s scheme was designed to allow patients to choose their doctor by denying networks the right to choose whom they wish to conduct business with. Imagine if AWP laws were used in other industries; could you see a law firm being forced to give a partnership to any lawyer who wanted it? Or perhaps a college forced to hire any professor that showed up? Yet it�s somehow acceptable to force physician networks to admit members, even when doing so increases the cost of health care to the consumer.

::: posted by Skip Oliva at 4:48 PM | link | donate |

Fun with FOIA

Back in January, I filed a fairly simple Freedom of Information Act (FOIA) request with the Federal Trade Commission. I asked the FTC to provide the overall budget allocation for the Bureau of Competition, the FTC�s antitrust enforcement unit, and the general amounts spent on seven cases prosecuted by the Bureau last year Last week, I got my reply...well, a partial reply anyway.

The FTC revealed that the Bureau of Competition received $31,704,634 during the last fiscal year, which ended October 30, 2002. As for the specific case expenditures, the FTC would only provide data for five of the seven cases I asked about. Two cases, involving the National Academy of Arbitrators and MSC.Software Corporation, had the information blacked out, or �exempted from disclosure� pursuant to government privilege under FOIA.

What exactly is this privilege? In their letter, the FTC said revealing how much was spent on the two cases in question �would reasonably be expected to interfere with the conduct of the Commission�s law enforcement activities.� I�m unsure what that means. All of the cases I requested information for were matters considered closed by the FTC. Indeed, most FTC cases aren�t made known to the public until after the investigation and settlement process is concluded. And given that they were willing to disclose the amounts spent on five other cases, what made these two particularly prone to compromise? The FTC wouldn�t elaborate.

Generally, the FOIA exemptions are designed to prevent individuals from using disclosure rules to get around the civil discovery process. For example, if you�re a defendant in a proceeding before an administrative agency, you can�t use FOIA to obtain materials collected during the government�s investigation which was not obtainable at discovery. This type of exemption makes sense, but it�s wholly inapplicable to cases where outside public policy groups request budgetary information. My objective in filing the FOIA request was to provide oversight, not to interfere with ongoing FTC enforcement actions. Rest assured, I will appeal the FTC�s decision to withhold this information, if necessary wasting the time of a U.S. district judge in order to get what I asked for.

::: posted by Skip Oliva at 4:47 PM | link | donate |

Friday, April 04, 2003 :::

Attila the Nuns

The AP reports that a Colorado jury is out on the case of Roman Catholic Sisters Ardeth Platte, Jackie Hudson, and Carol Gilbert. The nuns are accused of breaking into a Minuteman III missile silo site on Colorado's northeastern plains Oct. 6, where they allegedly defaced the silo lid by swinging hammers and painting crosses on it with their own blood.

If convicted, the trio could receive a maximum punishment of 20 years imprisonment and $250,000 fine for obstruction of the national defense.

A Google search revealed that Platte and Gilbert have been in and out of jail and prisons for the last 15 years as a result of their protest actions against the US armed forces. In 1999, they were incarcerated for six months after vandalizing a B-52 bomber on display at the Andrews Air Force Base air show with a hammer and blood.

This is offensive. These crimes are serious. If convicted, offenders like Platte, Hudson, and Gilbert deserve to be punished under the full weight of the law.

::: posted by Nicholas Provenzo at 10:01 PM | link | donate |

Is there any stopping the Fredrik Norman juggernaut?

I hope not. Fredrik adds yet another nation to his Friends of America Network. Bravo!

::: posted by Nicholas Provenzo at 8:24 PM | link | donate |

So just who put the teeth in Iraq's dictatorship?

The Dissidentfrogman says it wasn't the warmongering states. Go figure.

::: posted by Nicholas Provenzo at 1:25 PM | link | donate |

When they talk about "paying" for a tax cut. . .

. . .you know half the battle is lost. The AP ran a report today titled: "GOP Study Ways to Pay for Bigger Tax Cut."

Politicians and commentators often discuss the "costs" of tax cuts. Such language is not limited to those who oppose tax cuts--the defenders of tax cuts often use the very same terminology as their opponents. For example, some have criticized President George W. Bush's tax cuts as being too "expensive." Others having defended them, saying that, relative to government spending, the "cost" of the tax cuts was really very low. What neither side acknowledges is that a tax cut has no "cost"--in fact, it is a pure benefit to the American people. All a tax cut does is return to the taxpayers the wealth that was rightfully theirs in the first place.

The principle that individuals have a right to the fruits of their labors and that taxation is necessary only to finance the legitimate functions of government (i.e. protecting the rights of individuals to life, liberty, and the pursuit of happiness) has all but been forgotten in America. Today's conventional wisdom is that the government owns its citizens wealth, but takes on the "cost" of returning some portion of it to them, just as it takes on the cost of subsidizing people whose sole goal in life is to leach off of others and offer nothing in return.

This sad state of affairs is caused by the welfare state, an affront to the Constitution and the principles of a free society. Instead of twisting themselves in to a knot over "paying" for a tax cut, wouldn't it be nice if Congress sat down with tier copy of the Constitution and eliminated all taxes that are not necessary to financing the government's legitimate, Constitutional functions. In doing so, rather than lamenting the "costs" of tax cuts, maybe our politicians would recall that the government is supposed to be the servant of the taxpayers, not their master.

::: posted by Nicholas Provenzo at 6:29 AM | link | donate |

Thursday, April 03, 2003 :::

Sun Microsystems v. Microsoft news coverage

Here's the AP report, and here's the Reuters.

Update: Here's PC World's coverage.

::: posted by Nicholas Provenzo at 4:35 PM | link | donate |

And in other news. . .

Artist Bryan Larsen has another painting at the Cordair Gallery in Burlingame, California.

For a 27 year-old artist, I'm impressed with Bryan Larsen. Larsen says the purpose of his art is "to portray the heroic and romantic in human nature and human achievement in a realistic style and a modern setting."

I look forward to his continued growth as a painter.

::: posted by Nicholas Provenzo at 3:42 PM | link | donate |

Reporting live from Richmond...

This morning I attended the latest round in Microsoft�s never-ending antirust defense. Today�s forum was a hearing before the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia, in the case of Sun Microsystems v. Microsoft. This was actually an appeal of a preliminary injunction issued in the Sun case by Baltimore district judge J. Fredrick Motz (whose wife, incidentally, is a Fourth Circuit judge.) In January, Judge Motz granted a pretrial injunction forcing Microsoft to carry Sun�s Java platform in its future releases of Windows XP. Microsoft produces a competing �middleware� product called .Net. Motz�s order essentially said Microsoft could not distribute its own product unless it distributed its competitors as well.

Today�s appeal was heard by a three-judge panel composed of circuit judges H. Emory Widener, Paul Niemeyer, and Roger Gregory. Although Judge Widener presided over today�s hearing, for all intents and purposes this was Judge Niemeyer�s show. Aside from two brief interjections from Judge Gregory, Judge Niemeyer monopolized�no pun intended�this morning�s oral argument. He was particularly belligerent towards Sun�s counsel, and by the end of the one-hour hearing, I got the impression that Judge Niemeyer planned to catch a train to Baltimore and physically beat Judge Motz with a shovel for issuing his injunction in the first place. In other words, Judge Niemeyer seemed to favor Microsoft�s challenge.

Microsoft counsel David Tulchin presented a simple, straightforward argument: Never before had a court used the antitrust laws to grant a preliminary injunction altering the status quo to benefit a dominant competitor. In this case, Sun�s Java platform is dominant in middleware, while Microsoft�s .Net is a new entrant (a point Judge Niemeyer seemed caught up on throughout the argument.) The district court, Tulchin argued, relied on an unproven �tipping� theory. This means that Sun and Judge Motz believe the injunction is necessary to prevent Microsoft from unfairly �tipping� the market in its favor. This is entirely speculative, and requires one to believe Microsoft�s failure to carry Java while simultaneously distributing .Net will cause an immediate collapse of Java�s market. This would happen, we�re told, because middleware developers will flock to .Net once they realize Java won�t enjoy equal access on Windows-based machines.

But as Tulchin argued�and Sun never refuted�the only evidence presented to Judge Motz proved no such developer exodus was taking place. Indeed, Tulchin noted, Sun�s own internal documents show there are almost 1 million more Java developers today than when Microsoft introduced .Net. Furthermore, three studies presented to Judge Motz stated Java and .Net were equally viable competitors that would likely divide market share equally in the near future. Far from a �tipping� effect, Microsoft�s actions created, as Tulchin put it, �head-to-head competition of the sort the antitrust laws encourage,� or at least are supposed to encourage.

Judge Niemeyer�s questions to both sides expressed clear discomfort with Judge Motz�s �tipping� theory. If anything, Niemeyer said, the preliminary injunction would likely cause a tipping in favor of Sun, since Microsoft would lose its advantage in distributing .Net, a byproduct of Microsoft�s dominance in the operating system market. This led to Niemeyer�s other major concern: was this case about the Java-.Net market or the operating system market? The first problem, Judge Niemeyer explained, was that Sun�s initial complaint was not fully included in the record sent to the Fourth Circuit. For reasons that were not explained, the Court did not have a record of Count One of the complaint, which alleges Microsoft illegally maintained its operating system monopoly to the detriment of Sun. This led to Judge Niemeyer�s repeated questions to Sun�s counsel on what exactly they were complaining about. In other words, if Sun alleges monopolization of the operating system market, how does that entitle Sun to a preliminary injunction dealing with the middleware market?

At this point, Sun�s argument became: �Microsoft is evil, and we have to punish them.� Sun said that since another court�the U.S. Court of Appeals for the District of Columbia Circuit�already held that Microsoft illegally monopolized the operating system market, Sun could now rely on that decision to demand antitrust relief in any other market they competed against Microsoft in, even one where Sun already holds a dominant advantage. Throughout the argument, Sun counsel relied on what Judge Niemeyer deemed �overstatements�; that is, continued reference to Microsoft�s past antitrust defeats, �anticompetitive behavior,� and �monopolistic� actions. The hyperbole was arguably necessary because, as noted above, Sun produced little actual evidence in support of the injunction.

As Microsoft�s Tulchin argued, most of the factual allegations at the heart of Sun�s case deal with Microsoft�s alleged actions �six or seven years ago.� Sun�s case, in one sense, is nothing more than a breach of contract action in antitrust clothing, because Sun�s original problems with Microsoft were settled out of court. But, seizing on the D.C. Circuit ruling in the federal antitrust action, Sun clearly saw an opening to turn a state tort action into a federal antitrust case, no doubt eyeing potential triple damages, not to mention the far broader relief that typically accompanies an antitrust judgment.

At one point, Sun counsel resurrected a bizarre analogy first used by Judge Motz during the injunction hearing: Tonya Harding and Nancy Kerrigan. Sun said that Microsoft, in essence, had clubbed Sun in the kneecaps just prior to the U.S. figure skating championships, thus denying them a chance to compete. Tulchin countered that a better analogy would be to say that Harding injured Kerrigan�s knee (the Java market) but was asking for relief based on an injury to her elbow (the operating system market.) Alternatively, Tulchin suggested that Sun�s act was akin to Kerrigan seeking relief based on a knee injury suffered years earlier, a reference to Microsoft�s previous dispute with Sun.

In the end, Sun�s case for the injunction is meritless. Judge Motz relied entirely on unproven speculation as to what would happen to Sun if Microsoft was permitted to distribute .Net through its Windows operating system. More to the point, Motz impermissibly forced Microsoft to carry a competitor�s product for no reason other than that Microsoft possesses a large distribution network via its operating system. Sun, Judge Niemeyer observed, is trying to get a �free ride� from Microsoft via a preliminary injunction.

It�s obviously difficult to predict how a panel of judges will act, but given Judge Niemeyer�s forceful dissection of Sun counsel (I didn�t even get the name of Sun�s lawyer, as Niemeyer pounced on him before he could even introduce himself to the court) and the lack of serious opposition from the other judges on the panel, one has to believe Microsoft came out of this morning�s argument ahead. And given that overturning a preliminary injunction will not prejudice Sun�s chances on the merits (unfortunately), I would be surprised if the Fourth Circuit did not reverse Judge Motz.

::: posted by Skip Oliva at 1:06 PM | link | donate |

Dirty tricks

Dirty tricks abound in the debate over the war in Iraq. The latest victim has been Rep. Ginny Brown-Waite (R-FL), whose office e-mail system was hacked. According to the AP, hackers hijacked the Brown-Waite's e-mail and sent a message to her address book disparaging President Bush. Brown-Waite has been a firm supporter of the president�s policies.

This isn't the first time Brown-Waite has been a target of nefarious activity. Brown-Waite proposed legislation that would allow families opposed to France�s stance against America to disinter relatives buried in French military cemeteries for re-interment in the US. In response, a German radio station encouraged listeners to send Brown-Waite rotting chicken bones with the message �The boys are coming home.�

::: posted by Nicholas Provenzo at 12:58 PM | link | donate |

Wednesday, April 02, 2003 :::

Clone Humans? Let "Science Run Its Course", Says Scientific American Op-Ed

"It's a horrendous crime to make a Xerox of someone. You're putting a human into a genetic straitjacket." says environmentalist Jeremy Rifkin (apparently forgetting about the environment in human development).

"The very attempt to clone a human being is evil. The assumption that we must do what we can do is fueled by the Promethean desire to be our own creators," claims Duke theological ethicist Stanley M. Hauerwas (apparently preferring--like the vultures--to keep Prometheus shackled).

Says Michael Shermer in this Scientific American op-ed: "[A]llow science to run its course. The soul of science is found in courageous thought and creative experiment, not in restrictive fear and prohibitions."

::: posted by John Opfer at 10:58 PM | link | donate |

Antitrust Suit Against Visa, MasterCard Can Proceed

Law.com: A federal judge Tuesday refused to dismiss an antitrust case brought by 4 million merchants who claim Visa USA Inc. and MasterCard International Inc. force them to accept their debit cards. More.

::: posted by Nicholas Provenzo at 8:14 PM | link | donate |

About the War and How We Can Win It

Many Objectivists, (the Center's staff included) have been critical of the Bush administration's failure to publicly identify militant Islam itself as a threat to America's security. We have on more than one occasion said, "It's militant Islam, stupid." Our argument says that not to explicitly name the philosophic virtues of America and vices of militant Islam is moral appeasement of America's gravest enemies. Yet that said, I'm starting to see see numerous cracks in the pavement.

Consider, just as one example, this excerpt of a message to families of deployed Marines from Lt.Col. Chartier, Commanding Officer, 1st Tank Battalion, 1st Marine Division. "If we go into combat it is with a clear mission - we do not want Islamic militants or any government that supports them threatening our cities or hometowns. Nobody wants to relive September 11th, ever."

It seems the men and women of 1st Tanks know what this war is about.

And consider how many times President Bush's line about Islam being a "religion of peace" is used against such a proposition. President Bush's sentiments toward Islam are more often treated as an object of ridicule then as a credible statement of the facts.

So why then, do we have an administration that does not call a spade a spade? It's less about the failure to understand the threat of militant Islam and more about the failure to understand the genius of America.

America is free, secular, and self-interested. But as long as reason and egoism are not firmly entrenched in our culture, and people genuflect toward faith and sacrifice, even as they implicitly practice the opposite in their lives, we will go into battle at least partially disarmed.

Arming America is going to take effort. If I may be so bold, here's a good place to start.

::: posted by Nicholas Provenzo at 6:11 PM | link | donate |

NHSA Increases SUV Fuel Economy Standards

Yesterday, the National Highway Traffic Safety Administration issued a regulation requiring auto manufacturers to attain a fleet average for vehicles in the "light truck" category of 22.2 miles per gallon beginning with the 2007 models, an increase of 1.5 mpg over current regulations.

There is only one way to comply with this regulation: build lighter vehicles, which means build vehicles that are less resistant to impact.

::: posted by Nicholas Provenzo at 2:41 PM | link | donate |

April Fools?

Yesterday, Congressman Dennis J. Kucinich (D-OH) took to the floor of the House to demand that the US cease combat operations in Iraq. Savor the irony�Kucinich calls for UN inspectors to resume the search for Iraq's chemical and biological weapons, while damning the war as being purposeless.

I don't know about you, but I'll take a motivated Marine Corps Private over Hans Blix any day.

First Trafficant, and now this guy. It must not take a lot of bandwidth to get elected in Ohio these days.

::: posted by Nicholas Provenzo at 2:06 PM | link | donate |

The Wrong Kind of Liberation Story

This from Instapundit: The violent Earth Liberation Front claims its members attacked the US Navy Recruiting Headquarters in Montgomery, Alabama. ELF's website brags about the attack:

Messages spraypainted included the slogans "Stop the War," "Leave Iraq" and "Stop Killing," clearly indicating the reason this ELF cell targeted the military facility. It was also reported that all cars and vans targeted carried the ELF signature in spraypaint.
This is the first specifically anti-war action carried out by the ELF in North America, though there has been at least one direct action attack on a military recruiting center since the start of the war in Iraq (Edison, NJ - March 18th - claimed by the Direct Action Front).

If true, I hope the direct law enforcement action is swift, the trial of the perpetrators just, and their punishment severe.

::: posted by Nicholas Provenzo at 10:01 AM | link | donate |

Tuesday, April 01, 2003 :::

Good News, Bad News, Best News.

The Good News: The May 2003 Atlantic Monthly has a segment called "Literary Lives" that features Ayn Rand's life in a nine panel cartoon.

The Bad News: Total feet of clay. Makes fun of her marriage, affairs, novels, admirers, and funeral.

The Best News: I've never seen them do this to James Joyce, Upton Sinclair, Ernest Hemingway, F. Scott Fitzgerald, or any other 20th century author.

Sometimes it's good to have enemies.

::: posted by Nicholas Provenzo at 11:07 PM | link | donate |

Diversity, then and now

Are Asians the new Jews? University of Michigan professor George Bornstein thinks so, at least in how his administration defends its race-conscious admissions policies:

Affirmative action transfers places from Asian-Americans to African-Americans and Latinos. Yet both supporters and detractors cast the debate as black vs. white. The true issue is whether we want or need a policy that systematically restricts the places for Asian-Americans in our elite universities.

We will never resolve this contentious issue if we continue to frame the debate in simplistic and misleading terms of white versus black.

Recasting the debate can also help us see why so much of the current rhetoric supporting affirmative action to include minority groups as defined today sounds so much like the rhetoric used earlier in the 20th century to exclude a minority group as defined then -- Jews. Then as now, university administrators wished to control the racial mix (Jews were considered and called a "race" then). Otherwise, they feared their campuses would be "overrun" with members of a small but academically very high-achieving group.

Until the early 20th century, even the most elite American universities, such as Harvard, Yale and Princeton, were largely regional campuses. But faced with a high influx of academically talented Jewish students, they sought to reduce the numbers of that group. Aware that Jews (and to a lesser extent Roman Catholics) were concentrated in Northeast cities, they devised a system of national recruitment to restrict numbers of Jews while avoiding charges of overt discrimination.

Then as now, a key concept was diversity, only then it meant (in public) geographic diversity. Then as now, quotas were publicly denied even while an elaborate system to maintain de facto quotas evolved. Then as now, administrators argued that other things besides grades and examinations mattered as much or more -- character, for example, or obstacles overcome. Then as now, the result was to transfer places that would have gone disproportionately to members of an academically talented minority group to members of other groups.

This would have been a great argument for the two attorneys arguing against the university�Kirk Kolbo and Solicitor General Ted Olson�to have used today when questioned by the Supreme Court justices. I would have particularly enjoyed Justice Ginsburg's reaction to Bornstein's argument, given that the justice is both a woman and a Jew, not to mention a likely vote to uphold the Michigan admissions scheme.

::: posted by Skip Oliva at 6:48 PM | link | donate |

Democrats against dictatorship

Former Mondale-Ferraro campaign manager Bob Beckel takes his fellow Democrats to task for their continued moral equivalency on the war:

I find it so baffling that so many of my fellow liberals oppose the war against, arguably, the most vicious dictator since Hitler. In case you missed it friends, the Sunday before the war began was the 10th anniversary of Saddam Hussein's nervegasing of 5,000 Iraqi civilians in Halabja. Have we forgotten the horrific pictures of distorted bodies in piles? Have we forgotten in that human tyre were the bodies of hundreds of little babies? If so, read the reports out of Basra of Saddam Hussein's secret security force putting guns to the heads of little children to force their fathers to fight, or reports of suspected coalition collaborators having their tongues cut out and left to bleed to death in public parks as a warning to others? Or reports after the last Gulf War of Hussein's thugs rounding up accused spies and forcing them to drink gas in front of their families and then lighting them on fire?

::: posted by Skip Oliva at 6:22 PM | link | donate |

Restoring Olympic glory

Last week I mentioned the International Olympic Committee's inaction in the face of torture accusations made against Iraqi Olympic Committee president Uday Hussein, son of the dictator himself. Today, the United States once again acted in the face of international trepidation:

The Iraqi National Olympic Committee headquarters was bombed and largely destroyed Tuesday by U.S. war planes, prompting mixed reaction from former Iraqi athletes who said they have been tortured by Olympic committee chief Uday Hussein.

"That's great news, lovely news," said Sharar Haydar, a former national team soccer player.

Haydar claims to be one of many athletes who was imprisoned in a first-floor prison, and punished by Uday, son of Saddam Hussein.

The overnight bombing of selected targets inflicted serious damage on the bottom four floors of the nine-story building in east Baghdad, according to the Associated Press. Walls were blown out, and mangled wire and steel protruded. The building sits in a big complex of housing units, and they appeared unscathed.

::: posted by Skip Oliva at 6:16 PM | link | donate |

Antitrust news

The Associated Press reports that a federal judge has ordered a trial in a class action case against Visa and Mastercard:

A federal judge has denied a request by Visa USA and MasterCard International to throw out an antitrust lawsuit against the credit card giants, clearing the way for a trial later this month.

In a ruling issued Tuesday in Brooklyn, U.S. District Judge John Gleeson rejected defense arguments that Wal-Mart Stores Inc. and other plaintiffs failed to produce evidence that Visa and MasterCard conspired to monopolize the lucrative debit-card market.

"There is evidence, direct and circumstantial, from which a jury could find a conspiracy," Gleeson wrote in a 16-page decision.

The judge also denied MasterCard's demand for a separate trial. He set jury selection for April 21.

Wal-Mart, Sears Roebuck and Co. and other merchants across the nation are seeking billions of dollars in damages in a class-action suit brought in 1996.

The retailers allege the defendants secretly schemed to extend their dominance to debit cards by mandating an "honor all cards" policy, meaning any merchant who accepts their credit cards must accept their look-alike debit cards as well.

The plaintiffs claim excessive transaction fees have cost them more than $15 billion in the past decade - costs ultimately passed on to the consumer. The credit card companies argue that the "honor all cards" rule is necessary to protect consumer choice.

Visa and MasterCard have been a favorite antitrust whipping boy in recent years. Their well-earned dominance of the credit card market (and now the debit card market) has only benefitted consumers by expanding the availability of credit to millions of Americans. This success, however, inevitably makes Visa and MasterCard guilty of antitrust violations.

If a merchant is fazed by the "honor all cards" rule, they have an adequate market remedy: stop accepting cards. Amazing as it seems, businesses can refuse to accept credit cards. I know many local merchants that accept cash-only. Of course, this was force the class action plaintiffs in this case, such as Wal-Mart, to admit that Visa and MasterCard's market dominance�high fees and all�actually benefits retailers, by giving them access to a gigantic credit market.

::: posted by Skip Oliva at 3:39 PM | link | donate |

Transcripts of the University of Michigan racial preference cases

The Detroit Free Press has posted transcripts of today's oral arguments in the University of Michigan racial preference cases.

Transcript of oral arguments in U of M law school case
Transcript of oral arguments in U of M general admissions

::: posted by Nicholas Provenzo at 3:01 PM | link | donate |

Audio Broadcast of the University of Michigan racial preference cases

To hear today's oral arguments in the Michigan affirmative action cases, visit the C-SPAN Radio Web site. C-SPAN says the audio will be available after 12:15 p.m. today.

::: posted by Nicholas Provenzo at 12:00 PM | link | donate |

Monday, March 31, 2003 :::

Antitrust news

The Associated Press reports:

BOSTON - A federal judge has fined Boston Scientific Corp. more than $7 million for violating Federal Trade Commission instructions to preserve competition in the market for coronary catheters, a penalty the government called the largest ever related to an FTC order.

U.S. District Court Judge Patti B. Saris ruled Friday that Boston Scientific "harmed" people with heart disease when it failed to fulfill its obligation to license technology to competitor Hewlett-Packard.

The suit concerned tiny devices that, when inserted into coronary arteries, reflect images that allow doctors to observe damage.

The FTC had told Boston Scientific it would only allow its purchase of CVIS, another maker of the devices, if Boston Scientific agreed to share technology with Hewlett-Packard. Saris ruled that Boston Scientific dragged its feet in providing the technology and was "a substantial contributing cause" to HP's 1998 decision to leave the field.

When HP stopped making its new catheter, the Scout, "patients with heart disease were left with technology inferior to that available in 1995," Saris wrote.

The suit had sought $35 million, Boston Scientific said. The Justice Department said the previous record civil fine for violating an FTC order was $4 million.

"We respectfully disagree with the judge," Boston Scientific spokesman Paul Donovan said Monday. "We have the right to appeal and we're currently evaluating that option."

Donovan added: "We don't believe there is any credible evidence that we harmed public health."

It's hard to fault Boston Scientific for being less than eager to share its property with a competitor whose claim depended on the FTC's initiation of force. Still, Boston Scientific can look on the bright side: the FTC only got $7 million of the $35 million it was seeking in fines.

::: posted by Skip Oliva at 5:49 PM | link | donate |

Craig Biddle to lecture at George Mason University

On Thursday, April 3, 2003, at 7:30 p.m. in Johnson Center Assembly Room E, the George Mason University Objectivist Club presents a live talk:

�The Morality of Life: An Introduction to the Principles and Implications of Ayn Rand�s Ethics" by Craig Biddle.

This lecture explains and concretizes the basic principles and broad implications of the Objectivist ethics. The discussion ranges from why man�s life is the standard of moral value, to why pure capitalism is the only moral social system; from why genuine egoism is factually moral, to why religious terrorists are committed altruists; from the supreme role of reason in human life and happiness, to the corresponding nature, source, and crucial role of one�s emotions; from the essence of moral virtue, to the fundamental requirements of a civilized society.

Craig Biddle is the author of Loving Life: The Morality of Self-Interest and the Facts that Support It and a senior policy analyst with the Center for the Advancement of Capitalism.

This event is open to the general public. It is free for those with a GMU ID, a $5 donation to the GMUOC is suggested for those without a GMU ID.

For more information, e-mail gmuoc@gmuoc.org
or visit: http://www.gmuoc.org

Directions to GMU�s Fairfax campus and the Johnson Center can be found here: http://coyote.gmu.edu/map/maphtml/gwjc1.html

::: posted by Nicholas Provenzo at 1:55 PM | link | donate |

Bad career move...

NBC News fired Peter Arnett after the veteran correspondent gave an interview to Iraqi state television claiming the U.S. war plan had "failed." At first, NBC tried to downplay Arnett's actions, claiming he gave the interview as a "professional courtesy." Today, however, NBC changed their tune and fired Arnett, saying in a statement: "It was wrong for him to grant an interview to state-run Iraqi TV, especially in a time of war." Arnett, to his credit, appeared on NBC's Today show this morning and apologized for his actions.

NBC clearly understood that even though Arnett gave the interview on his own accord, his actions still reflected on the integrity of NBC News, and thus the company had to exercise institutional control by firing Arnett. This is a lesson Columbia University should, but probably won't, heed in dealing with renegade professor Nicholas de Genova, whose actions I described in this previous post.

::: posted by Skip Oliva at 12:43 PM | link | donate |

UPDATE: We've updated the page on our website dedicated to the University of Michigan cases.

::: posted by Nicholas Provenzo at 12:28 PM | link | donate |

Arnold Kling has questions. Too bad for Peter Arnett that he didn't ask these questions.

::: posted by Nicholas Provenzo at 11:37 AM | link | donate |

Sunday, March 30, 2003 :::

Among the many redundant amicus briefs supporting institutional discrimination (aka "affirmative action") in the University of Michigan case is a brief submitted by Howard University in Washington, D.C. The brief, co-signed by former Baltimore mayor and current Howard Law School dean Kurt Schmoke, repeats the common pro-Michigan party line:

But the diversity concept is really quite different. Its premise is that where there are, for example, only white people in a discussion, then the viewpoints, as seen through the eyes of persons of a different racial or ethnic background--meaning those aspects of difference or sameness from a person who has experienced life as a black person or as a Latino or as a disabled person, no matter how varied from black person to black person or Latino to Latino, will in fact be missing. This is true without regard to the diversity on other, non-racial or ethnic grounds, of the group. University officials seeking to create a rigorous intellectual environment as well as prepare students for leadership in a multi-racial world, determined that the one-race dimension that so many students get in their segregated elementary and secondary classrooms did not serve this purpose. Admissions programs to promote diversity recognize the salience of race and ethnicity without making any assumptions about the cohesiveness or sameness of viewpoint among members of any group. In fact, the more varied the viewpoint of those persons typically absent from the conversation, the better, which is why a critical mass of minority students is needed--to prevent the stereotyping that would be likely to occur if there were only a token number of minorities at the school.

This is all well and good, but what gives Howard the standing to make this case? Howard University's student body is 86% African American. Less than 5% of their campus is white or Asian. Is Howard thus implicitly saying diversity is valuable for schools where the majority of students are white, but has no value to majority-black schools? This is a particularly hypocritical argument coming from Howard, which as a private university could impose racial quotas without regard to the constitutional issues Michigan faces. Howard also receives special funds from the federal government as a "historically black college," meaning they actually benefit from practicing a mild form of racial segregation.

Now, this is not to suggest Howard should start altering admissions criteria to admit more white people. Such an argument would be absurd on its face�"a critical mass of white students is necessary to prevent stereotyping." But this only further erodes the Michigan supporters argument.

When you judge people as members of a racial collective, as the Michigan policy does, you send the message that they must tie their personal identity to said race. Once you de-individualize people that way, regardless of their race, then of course they're going to argue they need a "critical mass" to express themselves. After all, mobs only have power when they act in numbers.

::: posted by Skip Oliva at 10:59 PM | link | donate |

No tear gas for oil!

We can bomb Iraq. We can kill Iraqi soldiers in combat. We can overthrow Saddam Hussein's murderous regime. But we can't use tear gas? So it would seem according to international law.

Under the 1993 Chemical Weapons Convention, which the U.S. Senate ratified in 1997: "Each State Party undertakes not to use riot control agents as a method of warfare." This means using nonlethal chemicals�i.e. tear gas and pepper spray�to subdue enemy troops is a violation of international law. Even if such an act was used in order to minimize non-combatant casualties, something which is a concern in Iraq, where paramilitary Saddam loyalists are taking refuge in civilian areas.

There's also the question of why the Convention permits the use of nonlethal chemicals for "riot control" purposes, but not as a means of warfare. Practically speaking, most nations would have been reluctant to ratify the Convention had it attempted to dictate domestic law enforcement practices. Still, it's ironic that we can use tear gas against anti-war protesters, but not against the regime we're actually waging war against.

::: posted by Skip Oliva at 10:36 PM | link | donate |

Defending the indefensible

S.M. Oliva continues to take the Federal Trade Commission to task for its attack against �superpremium� ice cream manufacturer Nestle-Dreyer�s and its recent criticism of antitrust opponents. Read about it at Initium.

::: posted by Nicholas Provenzo at 3:07 PM | link | donate |

Mmm.. salmon...

The Bush administration says they'll continue to push for oil drilling in the Arctic National Wildlife Refuge. ANWR drilling opponents remain equally committed to stopping the administration. Among my favorite arguments against ANWR drilling is this statement from an engineering professor: "Wildlife refuges ought to be the one place where wildlife interests come first."

So what exactly are "wildlife interests"? It's not as if wildlife are an organized lobby like the AARP. Frankly, different wildlife segments likely have conflicting interests. For example, if you're a bear living in ANWR, you're biggest concern is probably acquiring more salmon to eat. The salmon, by contrast, would probably prefer laws that protect their right not to be eaten by bears. You see the dilema?

::: posted by Skip Oliva at 12:59 PM | link | donate |

And they didn't ask France for permission...

A group of American figure skating figures got so fed up with the corruption of their support's worldwide governing body, the International Skating Union, that they formed their own rival sanctioning group, the World Skating Federation. The WSF hopes to convince national figure skating bodies to join their cause, and eventually to force the International Olympic Committee to dump the ISU in favor of the WSF.

What's interesting about this dispute is the difference in governing philosophies. The ISU is composed of two separate sports�figure skating and speed skating�while the WSF is devoted exclusively to figure skating. The ISU's current president comes from the speed skating side. Why is this important? Because figure skating generates the overwhelming share of the ISU's revenue, but the organization splits those proceeds equally with both sports, essentially subsidizing money-losing speed skating with the figure skating profits.

Hmm.. an international body largely funded by one group that's at the mercy of another group which suffers from systematic corruption. Sound like any international "peacekeeping" organization we know?

::: posted by Skip Oliva at 12:52 PM | link | donate |

Why am I not surprised?

Columbia's faculty not only loves Saddam Hussein, but Josef Stalin as well.

::: posted by Skip Oliva at 12:45 PM | link | donate |

Bigotry and the law

If there was any question which side is right in Lawrence v. Texas�a constitutional challenge to a state law banning homosexual sodomy�syndicated columnist Cal Thomas answered it:

Before the Supreme Court rules that the Founders had the right to practice sodomy in mind when they wrote the Constitution, we should ask where the chipping away at law and morality is leading us.

Once sodomy is made legal, what's next? How about polygamy? As we have been reminded in the case of Utah's Elizabeth Smart and her abduction by a practicing polygamist, there are people who believe they have a right to that sexual and relational preference. If sodomy is legalized, can polygamists then ask the Supreme Court to end the prohibition against their "right" to engage in sex with and "marry" multiple partners? If not, on what legal grounds will they be refused? To listen to the attorneys for the Texas men seeking redress of their sexual grievances, a decision to strike down the Texas anti-sodomy law should be based on "changing times" and public opinion polls.

Right away, Thomas invokes Elizabeth Smart in order to foreclose rational debate on the question at hand. By invoking the slippery slope, Thomas employs fear over facts to make his basic case, which is nothing more than "I don't like gay people, and society should reflect my personal value judgments, so gay sodomy should be illegal."

Thomas goes on to argue that opponents of the sodomy ban are likely pedophiles. But that's not the worst of it. Not content simply to have the government enforce his prejudices, Thomas next proposes to redefine the concept of law:

In the past, the law has been viewed as something that flowed from a Law-giver, outside of the reach of humankind to create or manipulate. But since humanity now sees itself as the law-maker (the breaking of that ancient Law is now celebrated in personal behavior and encouraged in film, in magazines and on TV), who is to say whose morality, if any morality, should prevail? Having made "choice"

He has this backwards: If man is not to be the Law-giver, than who is? God? Which God would that be? Even among Christians, there's a wide disagreement as to which divine laws are applicable and which aren't. But since man is not morally entitled, according to Thomas, to judge for himself which laws are necessary, which God are we then to sacrifice our minds to? I suspect Thomas has an answer for that, and it's not one most of us would likely agree with.

Thomas concludes his bigoted remarks with a wholly illogical declaration: "If the Texas sodomy law falls, "marriage" will be redefined and the demise of the human family will be complete." Funny, many states have long repealed their sodomy laws, and families continue to function within those jurisdictions. Perhaps Thomas should have produced some proof to support his sweeping claim. Then again, that's asking too much: as mere men, we're not to seek evidence or reason, but simply accept whatever claims are made by those claiming to represent Divine will. Hey, it worked out pretty well for Iran, didn't it?

::: posted by Skip Oliva at 12:42 PM | link | donate |

. . .and now they will march for racial preference. The Detroit Free Press says 100,000 demonstaters are expected to come to Washington on Tuesday to support the University of Michigan as it argues in favor of affirmative action before the US Supreme Court.

In an unusual move, the Court announced last week that it will release the audio recording of oral arguments immediately after arguments conclude. This has only been done once before, in Bush v. Gore.

We of course are monitoring this case closely. In the mean time, read the Center's amicus to the Court opposing racial preferences.

::: posted by Nicholas Provenzo at 5:37 AM | link | donate |

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