Political Philosophy

I’ve often linked to Bush’s speeches here; it is only appropriate to link to the writer’s departure.

Jay Leno cracked: “Another Bush team member is stepping down. This time it’s long time speechwriter, a guy named Michael Gerson. He was President Bush’s speechwriter for seven years. Isn’t that amazing? President Bush had a speechwriter?”

Well, yeah. But this resignation will, indeed, be a loss.

“He’s one of the few people who is irreplaceable,” Bolten said. “He’s a policy provoker, a grand strategist and a conscience who in many cases has not only articulated but reflected the president’s heart.”

Gerson’s speeches created memes that defined Bush’s presidency, if not always repeated & analyzed in newspapers the next day. The images & vision may have seemed archaic, certainly foreign to many, who often seemed unclear about some of the allusions (as was I, with a weaker Biblical background). However, Bush’s own vision seemed aligned with those speeches, even if their fluidity & complexity were at odds with his own idiolect, his own sometimes inarticulate speech.

Bush’s sense of personal informality and institutional formality was reinforced by the clear differences in those two levels: the formal speeches resonated in time and space; his natural informal speech was full of nicknames, joviality & familiarity. Even before he was elected he saw as distinctly different the respect due him as George Bush & that due the presidency. But the speeches were Gerson’s words & we are likely to remember the apparently shared vision intrinsic to both. Gerson

was a formulator of the Bush doctrine making the spread of democracy the fundamental goal of U.S. foreign policy, a policy hailed as revolutionary by some and criticized as unrealistic by others.

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Jane Galt asks:

If your conception of the public good is served by, for example, hiding the economic cost of your program from the majority of American voters by making it a (lousy, inefficient) tax credit, instead of paying for it out of tax revenue, then in what way is your idea of the public good compatible with a democratic vision?

Jane asks how people who claim to honestly believe in democracy — i.e., the fundamental wisdom of the people — can reconcile tricking people into voting for programs by the use of adroit marketing. If someone really trusts the people why doesn’t he just lay it all out on the line? She thinks the fact that someone doesn’t feel comfortable telling people the raw truth indicates he doesn’t have a strong commitment to democracy.

I think there is a flip side to this observation. I think that if the people won’t vote for an idea when they really understand it, that probably means the idea isn’t a very good one.

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I am borrowing this Quote of the Day from Johnathan Pearce at Samizdata, who attributes it to the brilliant frequent commenter VeryRetired:

My experience of racists is that they are race based collectivists who are so utterly without anything to redeem them (and know it), that they pick out something they didn’t have to earn (race) and claim that as their most valuable asset.

I usually dislike discussing race. In part this is because I think individuals should be judged on their merits, and as far as I am concerned skin pigmentation is near the bottom of the list of personal variables that matter. And partly it is because the term “racism” is rarely defined, and I don’t like arguing with people who throw around accusations of racism merely because I make un-PC generalizations about PC ethnic groups or because I disagree with their particular take on the subject.

Nonetheless, while I think discussions about race are generally a waste of time, if one is going to have such a discussion it might be a good idea to define terms at the outset. I propose the following definition:

Racism is the advocacy and/or practice of treating different people differently based solely on their race.

Notice that my definition applies not only to the thuggish race-supremacists that so many of us, with good reason, like to hate, but also to people who advocate racial preferences “to remedy the effects of past discrimination.” It certainly applies to white so-called liberals who do not hold their black fellow-citizens to the same standards of conduct or achievement as they expect from other whites or from, say, people of Japanese decent.

However, it does not apply to people who make generalizations such as “there is a disproportionately large number of black criminals” or “many Muslims are our enemies.” These are observations — assertions subject to empirical validation — rather than prescriptions. (And Islam is a creed rather than a race, and certainly a proper subject of generalization since unlike skin color it is strongly correlated with individual behavior.)

There are some racists in our society as there certainly are in other societies. However, much of the talk about racism in our public discourse, and most of the accusations, are based on bogus assumptions about the inherent racism of making generalizations about members of particular ethnic or religious groups. Such accusations tend to stifle debate, and some activists with weak positions routinely use them for this purpose. That’s unfortunate. I think it’s a good idea to challenge the bogus assumptions and have a real debate, and that one way to do this is to insist on the definition of terms.

In Torts, we’re currently working on Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174. Judge Posner delivered the opinion, and in class, Professor Nockleby offered a critique of it. I thought Judge Posner wrote very lucidly, but Professor Nockleby also makes some great points. The professor challenged us to offer policy arguments against his, as a way of forcing us to learn the arguing skills we must develop as lawyers. I had a few thoughts, and I decided to share them with Judge Posner in an e-mail, which I have excerpted here:

Essentially, Professor Nockleby’s position is as follows:

1. The real issue in the case is, “In the absence of negligence (or proof of negligence), on whom should the presumptive burden of loss caused by the escape of a dangerous substance, acrylonitrile, while in rail transit be cast?”

2. The shipment of acrylonitrile is an abnormally dangerous activity. Therefore, the court should impose strict liability upon the Shipper. (Professor Nockleby cites Rylands, Siegler, and Spano as precedents that argue *in favor* of his position.)

3. Where a loss is created, and created non-negligently, someone must bear the loss, and strict liability is the best vehicle for assigning the loss.

[Here I have questions:
1) Does imposition of strict liability allow for later indemnification (Prof. Nockleby seems to imply that it does, but I’m not sure that’s so clear); and
2) In the instant case, isn’t the state agency which cleaned up the spill (and which charged Indiana Harbor Belt for the cleanup) essentially the way in which the liability is shifted? That is to say, if, as Prof. Nockleby insists, the danger of the case is in the future implications when, rather than a switching station, it is residents who are harmed, isn’t the fact that a government agency can clean up the spill an argument that “the people” have resources which are just as corporate as “big business”? Isn’t the government a sunk transaction cost, and what we’re doing then is simply doing the indemnification?]

4. Professor Nockleby insists that, in an abnormally dangerous activity such as shipping a dangerous chemical like acrylonitrile, it should be the agent which has control over the decision to ship which should bear the loss.

5. Professor Nockleby also takes exception to your analogy with people who build houses between runways at O’Hare. My understanding of that illustration was that the people built the houses after the runways were already there, in which case I think it is reasonable to expect people not to buy up land between runways and build houses. If, on the other hand, the houses were there before the runways, we have eminent domain issues.

I don’t expect an e-mail back from Judge Posner, but I invite you, dear readers, to leave comments, particularly if you’re familiar with this case and its interpretations and arguments. Thank you!

[Cross-posted at Law Law Stud]

[lawschool]
[torts]
[strict liability]
[negligence]
[Posner]

The friend who asked, rhetorically, if the Saddam Trial was nothing but a dog-and-pony show before a kangaroo court later (but before I responded to him) asked this question:

If the invasion is illegal, the Court has no jurisdiction.

The smart money is that this is what Saddam’s lawyers will try to argue. Professor Willis, my Civil Procedure instructor, concurs, but adds much more nuance. She suggests that Saddam’s lawyers will specifically try to argue that the court has no jurisdiction over him because the Coalition Provisional Authority headed by Paul Bremer, under whose auspices the statute creating the Iraqi Special Tribunal was drafted, had no authority due to the illegality of the war. According to the Human Rights First page, “Iraqi Special Tribunal: Questions & Answers“, the statute was actually enacted by the Iraqi Governing Council, to which the CPA temporarily ceded legislative authority for that purpose. Moreover, arguing the illegality of the war may be futile.

This is how I answered my friend:

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