Album of the Day

Läther, by Frank Zappa (1996): If someone were to say to me, "JDB, I always wrote off Zappa as a potty-mouthed provocateur, but you've convinced me that he was an amazing composer, arranger, and performer - what would be a good place to start to get a feel for his work?", I'd probably point them towards Läther. Originally conceived as an 8-sided album, it didn't see the light of day as planned until after Zappa's death, after having its constituent parts spread out across several other albums. Collected onto three discs, there's a sampling of just about everything Zappa did - comic rockers, long jazz-influenced workouts, modern orchestral pieces, and fiendishly difficult instrumentals. And all that's before the 23-minute "cartoon for the ears" that is "The Adventures of Greggery Peccery." If you don't find something in there that appeals to you, Zappa appreciation just isn't in the cards.

And with that, ladies and gentlemen, the 2008 edition of the A-to-Z review of my CD collection is complete. This year it covered 741 albums spread over 830 CDs. It took a total of 31 days, 11 hours, 34 minutes, and 16 seconds, or an average of 54 minutes, 57 seconds per disc. I hope you enjoyed it - it shall return in 2009!

Everybody Get Your Gun

With the Heller decision in the news (Michael Dorf has a good summary, while Radley Balko thinks Heller really isn't all that), lots of people are wondering about the militia. After all, in the 21st century, with the National Guard and Reserves around, the militia just doesn't exist anymore right? Well, not quite. And guess who is in the militia? To quoth Zappa, "one may be is you - and you don't even know it!"

If you don't believe me, check out section 311 of Title 10 of the United States Code:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are--

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

See? All us guys of a certain age are part of the unorganized United States militia. But the ladies appear to be off the hook. Well, not entirely, if you live in West Virginia:

The unorganized militia shall, at the call of the governor, be available for duty with the emergency service forces of this State. For purposes of this article, the unorganized militia shall consist of all able-bodied men and women between the ages of sixteen and fifty.

That's W.Va. Code 15-5-19, if you're keeping score at home.

So it appears I'm on duty for another decade or more. I wonder when the next meeting is?

At Last - Validation

During our college years, one of mine and jedi jawa's biggest pop culture pet peeves was Alanis Morissette's "Ironic," which described a series of situations that were anything but. When she asked, "isn't it ironic?", we'd inevitably scream back, "NO!"

So, I'm pleased, after all these years, to find some validation in that opinion, via this post to the New York Times Paper Cuts blog about defining irony:

Alanis Morissette’s song “Ironic” is equally useful. If it rains on your wedding day, that’s a coincidence, not an irony. If you win the lottery and drop dead before claiming the money, it’s good luck followed by bad luck. If you meet the man of your dreams and then meet his beautiful wife, it’s a bummer. But if a song called “Ironic” contains no irony, is that in itself ironic? Nope.

It may just be … dumb. It depends on the creator’s intent. So, as has been suggested, if Morissette purposely wrote a song called “Ironic” that contained no irony at all, is that ironic? We may be getting closer. Do you know irony when you see it?

I've got nothing against Alanis - she is God, after all - but she did contribute one of the more vapid bits of 90s pop culture with that gem.

Europe's Children (or Lack Thereof)

The cover story in yesterday's New York Times Sunday magazine was about Europe's declining birth rate. Basically, many European nations are reproducing at rates lower than the "replacement" rate of 2.1 kids per woman. Most of the concern I've heard about that issue comes from xenophobic right wingers who are scared to death at the thought of pale people losing hold of the planet. This article, however, digs into the numbers to try and figure out why birth rates in Europe are down and why they vary so much. The results are fascinating.

To begin with, women aren't having fewer kids because they just don't want to:

Maybe the most striking way to set up the issue is via a statistic that emerged from a 2006 Eurobarometer survey by the European Commission. Women were asked how many children they would like to have; the average result was 2.36 — well above the replacement level and far above the rate anywhere in Europe. If women are having significantly fewer children than they want, there must be other forces at work.

Given those findings, why do birth rates vary from region to region? Again, the
findings are a bit counterintuitive:

The accepted demographic wisdom had been that as women enter the job market, a society’s fertility rate drops. That has been broadly true in the developed world, but more recently, and especially in Europe, the numbers don’t bear it out. In fact, something like the opposite has been the case. According to Hans-Peter Kohler of the University of Pennsylvania, analysis of recent studies showed that 'high fertility was associated with high female labor-force participation . . . and the lowest fertility levels in Europe since the mid-1990s are often found in countries with the lowest female labor-force participation.' In other words, working mothers are having more babies than stay-at-home moms.

How can this be? A study released in February of this year by Letizia Mencarini, the demographer from the University of Turin, and three of her colleagues compared the situation of women in Italy and the Netherlands. They found that a greater percentage of Dutch women than Italian women are in the work force but that, at the same time, the fertility rate in the Netherlands is significantly higher (1.73 compared to 1.33). In both countries, people tend to have traditional views about gender roles, but Italian society is considerably more conservative in this regard, and this seems to be a decisive difference. The hypothesis the sociologists set out to test was borne out by the data: women who do more than 75 percent of the housework and child care are less likely to want to have another child than women whose husbands or partners share the load. Put differently, Dutch fathers change more diapers, pick up more kids after soccer practice and clean up the living room more often than Italian fathers; therefore, relative to the population, there are more Dutch babies than Italian babies being born. As Mencarini said, 'It’s about how much the man participates in child care.'

When it comes to birth rates in the developed world, the current champ is the United States. The best of Europe tend to be the Scandanavian countries, which provide generous state benefits for parents, particularly compared to the US. So how do two areas do so well with such divergent approaches?

But one other factor affecting the higher U.S. birthrate stands out in the minds of many observers. 'There’s much less flexibility in the European system,' Haub says. 'In Europe, both the society and the job market are more rigid.' There may be little state subsidy for child care in the U.S., and there is certainly nothing like the warm governmental nest that Norway feathers for fledgling families, but the American system seems to make up for it in other ways. As Hans-Peter Kohler of the University of Pennsylvania writes: 'In general, women are deterred from having children when the economic cost — in the form of lower lifetime wages — is too high. Compared to other high-income countries, this cost is diminished by an American labor market that allows more flexible work hours and makes it easier to leave and then re-enter the labor force.' An American woman might choose to suspend her career for three or five years to raise a family, expecting to be able to resume working; that happens far less easily in Europe.

So there would seem to be two models for achieving higher fertility: the neosocialist Scandinavian system and the laissez-faire American one. Aassve put it to me this way: 'You might say that in order to promote fertility, your society needs to be generous or flexible. The U.S. isn’t very generous, but it is flexible. Italy is not generous in terms of social services and it’s not flexible. There is also a social stigma in countries like Italy, where it is seen as less socially accepted for women with children to work. In the U.S., that is very accepted.'

That's just a few of the highlights of a very interesting article. It also includes the divergent approaches of European cities to declining populations, from pay-for-breeding to controlled shrinkage. Well worth a read.

Have You Bought Your Guns, Yet?

I don't have a whole lot to say about the Supreme Court's big decision in Heller yesterday, in which the Court struck down DC's handgun ban by adopting an individual rights view of the Second Amendment. But I did want to clear up a couple of misconceptions that seem to be floating through the press.

First, this decision only impacts the federal government's power to regulate guns. DC is a federal enclave, not a state, and thus operates under the auspices of Congress. The protections of the Bill of Rights - including the Second Amendment - only apply, by their terms, to Congress and the federal government. Most of those rights have been "incorporated" and applied to the states via the Fourteenth Amendment, although a couple haven't been (the right to be charged by indictment being one). The incorporation issue wasn't on the table in Heller and until the Supremes settle that, nothing has really changed in the states.

Second, although Scalia in his opinion tries to protect things like felon in possession laws from the scope of Heller, it's not really that easy. For one thing, that simply wasn't the issue in Heller and anything the Court said about it is non-binding (tho' persuasive) dicta. For another, the Court declined to decide what standard of review to apply to Second Amendment claims in the future. A high standard of review could make broad bans on gun possession to groups like felons difficult to uphold.

Album of Yesterday

The Best Band You Never Heard in Your Life, by Frank Zappa (1991): Although it's legendary implosion had earned the 1988 band an infamous reputation, it's an appropriate ensemble to be Zappa's last to go on the road. After several tours with smaller ensembles, 1988 brought a return to the "big band," complete with a deep and exceptionally talented horn section. In addition, the 1988 band helped launch the career of one of Frank's most impressive alums, Mike Keneally. The band gets represented on three albums of its own (the other two being Broadway the Hard Way and Make a Jazz Noise Here) and in the YCDTOSA series, as well. Best Band . . . is more scattered than the other two, throwing in several oddball covers as well as traditional Zappa favs. Of particular note is the One Size Fits All hunk on disc 1 and the cover of "Stairway to Heaven" (with the horn section tackling Page's famous solo) to round things out.

Album of the Day

You Can't Do That On Stage, Anymore (Vol. 4), by Frank Zappa (1991): Frank's late-era live albums were odd beasts. On the one hand, the liner notes for all proudly proclaim that there were no overdubs and all the performances are 100% live. On the other hand, Frank had no problem cutting and pasting all kinds of bits to form a single album, not only from song to song but within songs themselves. That's true in spades for the fourth installment of YCDTOSA (for an interesting overview of the whole series, see here), which spans performances from the early Mothers days in the late 1960s to the ill-fated 1988 big band. Given the lack of cohesion (or, dare I say it, "conceptual continuity"), these two discs are necessarily hit and miss. Still, it's worth a listen every now and then for gems like "Pound for a Brown - Solos 1978," "Carolina Hard Core Ecstasy," and the Vai-controlled "Approximate" and "Stevie's Spanking," complete with the spoken intro with the immortal truth: "there is no hell, there is only France!"

Two Defense Wins @ SCOTUS

It's nearly the end of the Supreme Court's term, so the big opinions are coming thick and fast this week (the Second Amendment case everyone is waiting on, Heller, should come down tomorrow morning). Today's load included two decisions that were wins for criminal defendants, which is a fairly rare feat these days.

The first one, which will generate a lot of attention over the next few days, is Kennedy v. Louisiana, in which the Court held, 5-4, that Louisiana can't execute a defendant convicted of the rape of a child. Justice Kennedy (no relation, of course) wrote for the majority, applying the now familiar "evolving standards of decency test" for Eighth Amendment issues, writing off the attempts of a few states to shift modern standards in favor of execution. Justice Alito led the dissenters, taking issue with Kennedy's calculus.

Of particular dissension between the two camps was the meaning of the Court's earlier Coker decision, in which the Court held that the death penalty could not be applied to someone convicted of rape of an "adult" (although the adult would have been a minor in most states). Kennedy holds that Coker meant exactly what it said, and no more. Any states that thought it applied to all rapes and didn't act accordingly are just out of luck. Alito, by contrast, points to the common understanding of Coker and argues that you can't hold it against the states if they thought child-rape death penalties were already unconstitutional.

Frankly, on that discrete argument, I think Alito is right. The Court is bad about handing down a decision, letting in percolate in the lower courts for years, and then applying it in a later case and, in essence, saying, "of course this is what we meant." That happened with Apprendi, in which the Court held that facts that increase a defendant's maximum sentence have to be found by a jury. Federal defenders, et. al., quickly noted that the holding should kill the Sentencing Guidelines, but every Circuit Court disagreed and the Supremes repeatedly denied cert on the issue. Years later, in Blakely and then in Booker, the Court essentially said, "of course that's what Apprendi said - what are you, dense?" So I think Alito's right to cut the states a little slack in not figuring out the complete contours of Coker.

But, in the end, Alito's argument proves more than he wants. The fact is that even if the specific holding of Coker doesn't apply in this case, the logic of it is pretty hard to escape, so the outcome becomes predictable. Personally, although I oppose the death penalty in all situations, I don't think it's too much to ask to limit its use to cases where a dead body is present.

The second case that came down today is much lower profile, but equally interesting (to law geeks like me, anyway). In Giles v. California, which I blogged about a while back, the Court held, as I hoped, that a defendant on trial for murder doesn't forfeit his right to confront the most important witness against him - the deceased - unless she was killed to prevent her testimony at trial. Scalia's opinion (for a 6-justice majority) makes perfect sense to me, but, to be fair, I haven't had a chance to read the dissent yet.

Cop Speak

Ever noticed how cops talk funny? "Suspects" get "subdued" by being "escorted to the ground," which really means the crook got beat down and handcuffed. I had a great example of that today for an initial appearance I did. Garden variety drug possession case, nothing at all exceptional about it. Even where the guy tried to hide his stash:

Defendant advised officers he had secreted additional cocaine base in his rectum.

C'mon, do you really think this guy who'd just had the cops search his house said, "excuse, me officer, but I've some cocaine base that I've secreted in my rectum"? Methinks it was a bit more colorful than that. But it all comes out cop speak in the end - sort of the linguistic equivalent of confinement loaf.

Album of the Day

Joe's Garage, by Frank Zappa (1979): More Zappa/Carlin synergy, methinks. There was a quote of Carlin's in a newspaper story this morning along the lines of "a comedian's job is to find the line and deliberately cross it." Joe's Garage plays off that idea, in two ways. First, it's nominally about who gets to draw the line and the problems inherent with that, with the omniscient Central Scrutinizer explaining how the laws are being rewritten "in tiny paragraphs so they won't conflict with the Constitution." Second, Frank crosses the line (of good taste, at least) repeatedly and with gusto. It's certainly not an album for the easily offended. Which is a shame, because disc two contains one of Frank's most beautiful bits, the extended instrumental "Watermelon in Easter Hay."

New, But Not Really Fresh, Tunage

It's been forever since I uploaded new music to ACIDPlanet, but I finally got around to doing a bit of laptop cleaning today and had something that was more complete than I thought it was.

Back in 2006, one of the weekly 8 packs that Sony releases included a couple of orchestral loops. I used them in this track and figured it might be cool to have more, so I bought one of Sony's orchestral collections. Once I dug into it, I had the bright idea to try and piece together a piece of "real" music, as opposed to the electronic stuff I'd been gravitating towards. Yeah, well, it was a nice plan. Turned out to be much harder than I figured to match up loops from different projects into something cohesive. So I started this project and got it to the point where it sounded OK, but walked away from it. Since I was cleaning those loops off the hard drive to make room for new ones, I decided to push it out, as is.

It's called "Spam Suite," made up of three sections (there were originally supposed to be four) with titles taken directly from Spam emails I received. Honestly, I could not make these up:

1. The Financier Was a Tasty Little Minimuffin - 2:01
2. Avarice Wallpaper - 4:38
3. Parasite Transcendent - 3:37

The first bit is upbeat and festive, the second a little more somber and reflective. "Parasite Transcendent" is my favorite bit, although there's no way I could get the ending the way I heard it in my head using just loops. Everything in this track comes from loops, except for a little M-Tron clarinet in the second part.

Enjoy - you still can't beat the price!

Legal Tidbits

A few interesting legal blurbs I picked up today:

• A new report from the Department of Justice details a pattern of improper ideological hiring practices in DoJ during the Duhbya years. In equally stunning news, Captain Renault discovers gambling at Rick's!

• Arin Greenwood at Slate dives into the frightening world of prison cuisine, taste testing various recipes for Nutraloaf, aka confinement loaf. Not surprisingly, it's awful, tho' not cruel and unusual.

• I've never been a big fan of the Supreme Court's "community standards" test for obscenity (or prohibiting obscenity in the first place). The idea that, as Kevin Gilbert put it, I'm left "waiting for my neighbors to tell me what's obscene," seems out of place in a Constitution that should apply equally everywhere. And what is the 21st Century "community," anyway? A defense attorney in a Florida obscenity trial has an interesting idea - it involves Google.

• Finally, the Supreme Court makes a stunning ruling, that the death penalty is 'totally badass':

Album of the Day

Roxy and Elsewhere, by Frank Zappa (1974): When I found out about George Carlin's death this morning, I thought it appropriate that I was just about to embark on the final stretch of the A to Z, the Zappa stretch. If there were ever two 20th Century iconoclasts who made their livings poking a stick in the eye of the establishment, it was George and Frank. But more than that, they were both incredibly talented artists who transcended their own niches and influenced a lot of lives. And, sadly, both left us well before their time. Plus, George would have loved Frank's intro to "Penguin in Bondage," in which he had to "circumlocute" the actual subject of the song to "get this text on television."

The Fucker's Dead

Last night, George Carlin, one of the defining social critics of the past few decades, died. I won't say "passed away," 'cause Carlin was never a fan of euphemisms. In fact, aside from the famous "seven words" bits, my most vibrant memories of Carlin involve his love of language. Speaking of euphemisms:

I don't like words that hide the truth. I don't like words that conceal reality. I don't like euphemisms, or euphemistic language. And American English is loaded with euphemisms. Cause Americans have a lot of trouble dealing with reality. Americans have trouble facing the truth, so they invent the kind of a soft language to protect themselves from it, and it gets worse with every generation. For some reason, it just keeps getting worse. I'll give you an example of that.

There's a condition in combat. Most people know about it. It's when a fighting person's nervous system has been stressed to it's absolute peak and maximum. Can't take anymore input. The nervous system has either (click) snapped or is about to snap.

In the first world war, that condition was called shell shock. Simple, honest, direct language. Two syllables, shell shock. Almost sounds like the guns themselves.

That was seventy years ago. Then a whole generation went by and the second world war came along and very same combat condition was called battle fatigue. Four syllables now. Takes a little longer to say. Doesn't seem to hurt as much. Fatigue is a nicer word than shock. Shell shock! Battle fatigue.

Then we had the war in Korea, 1950. Madison avenue was riding high by that time, and the very same combat condition was called operational exhaustion. Hey, we're up to eight syllables now! And the humanity has been squeezed completely out of the phrase. It's totally sterile now. Operational exhaustion. Sounds like something that might happen to your car.

Then of course, came the war in Viet Nam, which has only been over for about sixteen or seventeen years, and thanks to the lies and deceits surrounding that war, I guess it's no surprise that the very same condition was called post-traumatic stress disorder. Still eight syllables, but we've added a hyphen! And the pain is completely buried under jargon. Post-traumatic stress disorder.

I'll bet you if we'd of still been calling it shell shock, some of those Viet Nam veterans might have gotten the attention they needed at the time. I'll betcha. I'll betcha.

In times like these, it's customary to get all maudlin about the deceased -maybe speculate about what he's doing in the next life. Well, George wouldn't like that either:



So, I'll just say "thanks, you fucker," and go watch Dogma in his honor.

Go Team!

Via Volokh, an argument that's not going to make the Duke Football Booster's Club very happy:

A Franklin, Ky., Circuit Court judge sided with a devilishly clever argument and ruled in favor of Duke University yesterday in a breach of contract lawsuit brought forth by the University of Louisville.

Judge Phillip J. Shepherd agreed with Duke’s lawyers — the football team is so bad that any replacement would do.

U of L sued Duke for $450,000 — or a series with another Atlantic Coast Conference opponent — after the Blue Devils backed out of a four-game football contract with three dates remaining.

The contract called for a penalty of $150,000 per game if a date with a 'team of similar stature' could not be arranged.

Duke’s lawyers argued the Blue Devils, which have a record of 6-45 over the past five seasons, were so bad that any team would be a suitable replacement.

Sometimes, in the legal battle, you've got to take one for the team. Or vice versa!

ADA Between a Rock and the Constitution

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. US, 295 U.S. 78, 85 (1935)

Via TalkLeft comes a story from the New York Times of an Assistant NY District Attorney caught between his obligation to his boss and his obligation to the Constitution. Daniel Bibb was an ADA who was tasked with reviewing the convictions of two men in a nightclub shooting in 1990. After almost two years of review, Bibb decided that the two men were wrongfully convicted and recommended that the convictions be dropped. His bosses disagreed and ordered him to defend the convictions in a new hearing.

Convinced he was right, Bibb decided to take a dive:

He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them.

'I did the best I could,' he said. 'To lose.'

Today, the two men are free. At the end of the hearing, which stretched over six weeks, his superiors agreed to ask a judge to drop the conviction of one, Olmedo Hidalgo. The judge granted a new trial to the other, David Lemus, who was acquitted in December.

The Times article solicits several opinions on the propriety of Bibb's actions, but I'm disappointed that none of them mention the Supreme Court's sentiments in Berger. It's not just about winning for the prosecution. The fact that Bibb's supervisors let winning get in the way of justice is more troubling than Bibb's rolling over.

Album of Last Friday

Talk, by Yes (1994): If Tormato has a bad reputation in Yesland, Talk is downright loathed. YesWest (the Trevor Rabin-led version of the band) always had is hard from some sections of the fandom, but this album exacerbated it by slouching towards a Rabin solo album. Tony Kaye might as well have had his picture put on a milk carton, 'cause he's AWOL for the most part (euphemistically credited with "Hammond organ," 'tho I don't hear a lot of Hammond in the mix), with Rabin handling most of the keys work. Rabin also allegedly took a good chunk of Squire's bass parts and touched them up after the fact, as well. By that point, you can see why devoted Yesfans might see Talk as little more than a Rabin solo album. That may be true, but it's still one of the better late-period Yes albums in my book, "Endless Dream," in particular.

Birthday Wishes

Today my home state of West Virginia turns 145. Hard to believe - it seems like just yesterday you were setting up the rump legislature in Wheeling to spite the Tidewater folks. It's certainly been quite a ride.

I was going to try and come up with something clever, witty, or profound for the occasion, but I think I'll just send readers over to The Film Geek, who puts it very well. As he sums up:

Happy birthday, West Virginia. I may not always like you, but I do love you. You're family.

Film Geek also mentions a project undertaken by some of the WV bloggers on this day to:

definin[e] their vision for a new stereotype of West Virginia.

While I appreciate the effort and sympathize with the underlying motivation, I think that idea is a little misguided.

Stereotypes are bad and should be assailed with facts and counter arguments. But they shouldn't be replaced by new ones. They should be replaced by accurate portraits, which are sometimes difficult to convey, given their nuances and idiosyncrasies. To replace one cardboard cutout of our state with another (or a bunch of others) seems like a fool's errand.

Better, I think, is for the WV bloggers to simply be themselves - smart, passionate, funny, irreverent, talented, goofy - when out in the blogosphere. The best way to undermine stereotypes is to show, by word and deed, their falsehood. To confront the bigotry and ignorance inherent in those stereotypes with the humanity inherent in every one of us and show what type of children the Mountain Mama produces.

Having said all that, be sure and check out everybody's posts, collected here. I'm sure they'll be interesting (and probably prove me wrong!).

Album of the Day

Tormato, by Yes (1978): In the Yesworld, opinion generally goes something like this: Relayer was their last bit of genius, Going for the One was a bit of a step back but decent, and Tormato sucks. I think that's a bit unfair, but I'd definitely say Tormato is the weakest of the albums done by the classic lineup. It suffers from a couple of things. One is the sonic palette, which is very late 70s and dated. Squire's bass sound and Wakeman's Polymoog sounds, in particular, sound stale compared to (say) the debut UK disc or second National Health album (both released at the same time). The other thing is the unevenness of the songwriting. There are excellent bits - "Future Times/Rejoice" and "On the Silent Wings of Freedom" - but there's a lot of dreck. When Jon Anderson's son shows up on "Circus of Heaven," you know you're in deep trouble. All of which is a way to say that maybe the lineup turmoil that happened before Drama (a far better album) was for the good.

Wiping Someplace Off the Face of the Map

Before today, I'd never heard of North Oaks, Minnesota. It's a town of 4500 people, but good luck finding it on Google Maps. As Anita Ramasastry explains at Findlaw's Writ, it's been wiped away:

Previously, through Google’s 'Street View' application, anyone could see photos of the homes in North Oaks, which had been photographed by Google photographers from the nearest road. 'Street View' offers the same kinds of photos with respect to numerous American cities. But North Oaks is unusual: It is a 'private' city, with roads owned entirely by residents. (Each homeowner owns part of the land where the street is located, and grants each other resident an easement of right of way to travel on his or her property.) Thus, although North Oaks is not a gated community, visitors are greeted by a 'No Trespassing' sign that is meant to serve as a gate.

Accordingly, North Oaks’s City Council informed Google in January that Google’s camera crews had trespassed when they photographed its residents’ homes. The Council asked Google to either remove the images, or risk being cited for violating the city's anti-trespassing ordinance. Google removed the images, which now cannot be seen.

There are, it seems to me, some interesting issues with a whole town being private property. Ultimately, they don't bother Google all that much, however:

While the Street View images are gone, one can still view the homes of North Oaks on the Internet. Satellite images of the city are still visible on Google Maps, Google Earth and Microsoft and Yahoo mapping applications. These photos are taken from space and since space is deemed “public,” the same privacy rights do not apply.

The march of technology!

Opening Everybody's Books

Way back when, I had the experience of being in a union when I worked for Legal Aid. We were all covered by the collective bargaining agreement and so had a fair idea of what kind of money everybody made. During a merger process that was ongoing during my tenure, part of the process involved disclosures of what everybody earned - including the non-union folks from the other organization. Some of those folks were shocked at who made what (and didn't), apparently divorced from concepts of experience, seniority, etc.

That, in a microcosm, is what I expect would happen if the US followed the lead of Sweden, Finland, Norway, and (accidentally) Italy and made the tax returns of citizens public information. It's not a new concept:

Sweden's policy of making tax returns public — as in Finland and Norway — stems from a tradition of open records and transparency in government, except in cases of national security and some aspects of criminal investigations.

'The right of public access to documents is laid down in the constitution,' [Magnus] Graner [state secretary for Sweden's Justice Ministry], says of Sweden's practice since the 18th century.

Making the data public demonstrates the Scandinavian tradition of jantelag, which translates roughly as nobody is better than anyone else, says Veera Heinonen, spokeswoman for the Finish Embassy in London.

'Finland is a very egalitarian country, and it's a very high-tax society, so it provides checks and balances,' Heinonen says.

What's not clear from the article is whether those records truly "public" in the 21st century sense (i.e., on the Net) or just available to anyone who wants to slog through them. I'd be sort of intrigued to see how Roine Stolt or the guys from Beardfish and Ritual are making out.

I can't imagine Americans ever going for that sort of openness.

Albums of the Day

Apple Venus Volume 1 (1999) & Wasp Star (Apple Venus Volume 2) (2000), by XTC: XTC waited seven years before releasing their first post-Virgin album, then quickly followed it with a second and promptly went on hiatus (perhaps permanent) again. For that reason, these two albums are linked by more than name, although they are quite different. Volume 1 is mostly acoustic, with lots of orchestral arrangements, and generally laid back and melancholy. Volume 2, by contrast, bursts out of the gate with a catchy electric guitar riff and never looks back, being hookier, rockier, and generally more up beat than its predecessor. Of the two I prefer the second, mostly because I think the band manages to straddle the fine line between clever and twee without crossing it (as they're wont to do sometimes). But I heartily recommend either.

Giving Darwin His Due (But Just)

Apparently, we're on the cusp of a momentous anniversary. July 1 marks the 150th anniversary of the first public announcement of natural selection, at the Linnean Society in London. That kicks off an 18-month series of observances, including the 200th anniversary of Charles Darwin's birth and 150th anniversary of the release of On the Origin of Species. It's enough to make the IDiots see stars (and some sort of pattern, I'm sure).

While Darwin today is remember as the man who "discovered" natural selection and evolution, he doesn't really deserve all the credit:

But hold on. Does he deserve all this? He wasn’t, after all, the first person to suggest that evolution happens. For example, his grandfather, Erasmus Darwin, speculated about it towards the end of the 18th century; at the beginning of the 19th, the great French naturalist Jean-Baptiste Lamarck made a strong case for it. Lamarck, however, failed to be generally persuasive because he didn’t have a plausible mechanism — he could see that evolution takes place, but he didn’t know how. That had to wait until the discovery of natural selection.

Natural selection is what we normally think of as Darwin’s big idea. Yet he wasn’t the first to discover that, either. At least two others — a doctor called William Wells, and a writer called Patrick Matthew — discovered it years before Darwin did. Wells described it (admittedly briefly) in 1818, when Darwin was just 9; Matthew did so in 1831, the year that Darwin set off on board HMS Beagle for what became a five-year voyage around the world.

What Darwin did do was bring a lifetime's worth of data and to his work and pulled everything together into one coherent theory. As one of the commenters to that post put it:

Like the Wright Brothers with the airplane and Ekert and Mauchly with the computer, he might have not thought of it first, but he established the credibility of the idea to the world.

Indeed. That is that accomplishment that generally gets remembered and is something worth celebrating, even if it slights some of the other pioneers.

Album of the Day

A Ghost is Born, by Wilco (2004): Although I was vaguely aware of Wilco's existence, it wasn't until jedi jawa recommended them (well, a co-worker of his recommended them, actually) that I picked this disc up. Honestly, although I know they're revered in some circles (including by some folks in the prog world), I can't see what all the fuss is about. The tunes here are generally good (the run from "Wishful Thinking" to "Theologians" in particular), but not all that compelling. And don't even get me started on the 15-minute noise fest that is "Less Than You Think."* I know there are fans out there among the WV bloggers - what am I missing, folks?

* And I'm a guy who listens to music that lots of people would label noise!

Throwing Out the Baby With the Entire Damn Ocean

In the modern Web world of discussion forums, blogs, and social networking sites, a lot of you young whippersnappers have never heard of, much less used, USENET newsgroups. USENET newsgroups cover almost any topic under the sun, from the mundane to the esoteric to the completely bizarre. And even though they've sort of been pushed into the background by more recent developments, they still have a lot of traffic and useful info.

Which is why the decision by Verizon to shut down access to USENET for its subscribers is pretty stupid. So why are they doing it? For the kids, of course:

Verizon spokesman Eric Rabe said only a select few newsgroups/discussion groups would be offered to customers going into the future. It appears the decision is in response to political 'strong-arming' from New York State Attorney General Andrew Cuomo who wants strong restrictions on all newsgroups.

Cuomo added that his office had found child porn on at least 88 newsgroups, although that percentage is tiny compared to the over 90,000 newsgroups that exist. 'We are attacking this problem by working with Internet service providers...I commend the companies that have stepped up today to embrace a new standard of responsibility, which should serve as a model for the entire industry,' read a press statement from Cuomo's office.

So, because 0.098% of the groups had some kiddy porn on them, Verizon will block access to all (or most - it's not completely clear) of them. Makes perfect sense. If they were going to restrict access, couldn't it just be, you know, to the ones that actually have illegal content in them?!? Makes perfect sense to me. Since there's kiddy porn on the Web in general, why not just shut down the whole damn thing?

The Luddite Web

Today's New York Times has a fascinating article on Belgian inventor Paul Otlet. Born in 1868, he had some amazing insight for a man born before even electricity was commonplace:

In 1934, Otlet sketched out plans for a global network of computers (or 'electric telescopes,' as he called them) that would allow people to search and browse through millions of interlinked documents, images, audio and video files. He described how people would use the devices to send messages to one another, share files and even congregate in online social networks. He called the whole thing a 'réseau,' which might be translated as “network” — or arguably, 'web.'

* * *

Although Otlet’s proto-Web relied on a patchwork of analog technologies like index cards and telegraph machines, it nonetheless anticipated the hyperlinked structure of today’s Web. 'This was a Steampunk version of hypertext,' said Kevin Kelly, former editor of Wired, who is writing a book about the future of technology.

Otlet’s vision hinged on the idea of a networked machine that joined documents using symbolic links. While that notion may seem obvious today, in 1934 it marked a conceptual breakthrough. 'The hyperlink is one of the most underappreciated inventions of the last century,' Mr. Kelly said. 'It will go down with radio in the pantheon of great inventions.'

Otlet began work on his plan - he and associates created a database of 12 million index cards and accepted research requests from around the world on various topics. But a withdrawing of support from the Belgian government and World War II killed it.

Still, that's pretty neat, huh?

Hearts Break at All Ages

Last week, Slate had a story that was both heart breaking and angering at the same time. Long story short: Two elderly residents from a nursing home began to fancy each other. So, they did what people who fancy each other do and started having sex. Although official policy frowned on such relationships, almost everyone agree that the lady and gentleman involved were the better, healthier, and happier for it. Everyone, it seems, except the gentleman's son, who vocally objected and, eventually, moved his father to another facility.

Mixed in among the issues related to the ability of older folks suffering from dementia and their ability to consent to sex, there are two bits of info that really stand out.

The first, which is the angering bit, is the behavior of the gentleman's son, who was motivated not so much by a valid concern about his father's heath, but a mixture of "eww, old people fucking!" and concerns about his inheritance:

Bob had repeatedly proposed for all to hear and called Dorothy his wife, but his son called her something else—a "gold digger"—and refused to even discuss her family's offer to sign a prenup.

This is an expectation I've never understood - why do people who might be in position to inherit something someday turn that into a sense of entitlement? Maybe it's because I've never really expected to inherit anything of great value, but it pisses me off when people lay claim to the goods of others. Assume Bob spent lavishly on Dorothy and junior was left without an inheritance - why is that a problem?

The tragic part of the story, however, lies in the effects of the breakup and the effects of a debilitating mental condition:

Finally, Bob's family decided to move him and insisted that neither he nor Dorothy be told in advance. No one in either family was there the morning Bob's nurse hustled him out the door. Later, the manager called his son and asked if there was any way Dorothy might come and visit just briefly, to say goodbye.

* * *

After that, Dorothy stopped eating. She lost 21 pounds, was treated for depression, and was hospitalized for dehydration. When Bob was finally moved out of the facility in January, she sat in the window for weeks waiting for him. She doesn't do that anymore, though: 'Her Alzheimer's is protecting her at this point,' says her doctor, who thinks the loss might have killed her if its memory hadn't faded so mercifully fast.

I think the tragedy of that speaks for itself.

Oopsie (Redux)

The kerfuffle over Ninth Circuit Chief Judge Alex Kozinski's not-so-private Web server continues, with some interesting developments. Patterico has been doing yeoman's work keeping up with things. See here for a collection of links on the story, including lengthy posts from Kozinski's wife and Cyrus Sanai, the disgruntled attorney/litigant who snooped out the server and tipped off the LA Times.

I continue to think this is much ado about not much (Kozinski's wife makes some good points about how the Times misled and distorted the type of material at issue), but I doubt it will simply go away.

Album of the Day

Quadrophenia, by The Who (1973): The second of Townshend's Who rock operas, Quadrophenia is a bit more sprawling that Tommy and a bit more adventurous, as well. In addition to a fairly audacious concept (each of the band members represent one part of the main character Jimmy's fractured personality), Townshend uses a broad sonic pallet (synths, horns, sound effects) to set the mood. The songs themselves are some of The Who's most powerful - "The Real Me," "5:15," and "Love, Reign O'er Me" among them. The late monster rhythm section of Keith Moon and John Entwistle rule this album, from the very get go (Entwistle's bass licks on "The Real Me" kicks my ass every time). Over time, Quadrophenia has become my favorite of Pete's big idea albums.

The Rest of the World's Biggest Race

Here in the States, the biggest auto race of the year is the Daytona 500. It used to be the Indy 500, but that was back in the days before the open wheel split. As far as the rest of the world is concerned, however, the biggest single race of the year is probably the 24 Hours of Le Mans, which has its 76th running this weekend.

As the BBC explains, the scene is set for a titanic battle between the three factory Audi R10s and the three Peugeot 908 Hdi-FAPs (which occupy six of the top seven spots on the starting grid). All are diesel powered. In the Euro-based Le Mans Series, the Peugeots have had the measure of the all-conquering Audis, but the lone Peugeot at Sebring succumb to mechanical failures. Who knows how things will shake out?

Browsing the Web I stumbled across a great resource for this year's race, for both Le Mans beginners and vets. From Ultimatecarpage.com, it's a Le Mans 101 on the different classes, as well as a spotter's guide for every car in the field. Study it well before the flag drops at 8:30 Saturday morning on Speed (for a while)!

Album of the Day

Victor, by Victor (1996): Victor was the solo project by Rush guitarist Alex Lifeson. Along with Geddy Lee's My Favorite Headache, it's th only solo projects to emerge from the Canadian trio's 30+ year career. The contrast between the two is interesting and goes to why Rush fandom tends to favor Geddy's disc. Victor, except in a couple places ("Promise" and "Start Today," with Lee-like vocals from Lisa Dalbello), doesn't sound a whole lot like Rush. It's layered with programmed synths and percussion. For a guitar player's album, there's not a whole lot of show off soloing (the title track doesn't have any guitar on it at all!). It's also fairly dark, angry, and cynical, from a lyrical standpoint. All of those are reasons why I really like the album, but why I think most Rush fan's prefer Geddy's disc - it's much more Rush-like and accessible.

UPDATE: The "Victor" of the title track is a 1937 poem by W.H. Auden that serves as the lyrics for that song. Prowling around the web, I found this interesting analysis of the poem and the album. A quote from Lifeson about the project:

Although 'Victor' the poem is very, very long, I condensed it for the song. It really caught the essence of what the record was about, dealing with the dark side of love and how it can push you to do things that are pretty horrific. So, it seemed to suit the record quite well.

I'd agree with that.

FURTHER UPDATE: OK, having read the whole analysis now, it's not quite as interesting as I suspected. The critic takes what Lifeson said about "Victor" (that it was a late on addition to the album), throws it out, and then promptly bashes other songs on the album for not fitting the concept he wants to impose on them. I'm not persuaded, but what do I know?

Oopsie

A little free career advice, kids: if you're the chief judge of a federal Circuit Court of Appeals and you have a predilection for non-standard porn, don't keep your stash on the Internet. Amazingly, Alex Kozinski, chief judge of the Ninth Circuit, has been outed as a porn fiend because of a stash discovered on his personal website. Even more amazingly, the outing came while Kozinski was sitting by designation as a trial court judge in a Los Angeles obscenity trial, which has now been put on hold.

So what, exactly, was on the judge's website (now deleted - sort of)?

In an interview Tuesday with The Times, Kozinski acknowledged posting sexual content on his website. Among the images on the site were a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. He defended some of the adult content as 'funny' but conceded that other postings were inappropriate.

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

While the whole thing is amusing to an outsider, I think Kozinski may be getting unfairly attacked.

For one thing, many folks (see the comments to the LA Times article) seem to be under the impression that the material on the judge's site came from the evidence presented at the obscenity trial. That's not the case and, at this point, nobody has alleged that what Kozinski was hosting was obscene (legally, anyway). Some of it sounds well beyond the bounds of traditional porn, but that isn't necessarily criminal.

For another, the charges of hypocrisy that oftentimes accompany these public sex scandals don't really apply here. Yes, Kozinski is a GOP Reagan appointee, but he's cut more from the libertarian wing of the GOP than the religious right wing. So this isn't a situation where a vocal morals crusader rails publicly about the evils of sex and drugs while privately smoking meth with transvestite hookers.

Having said all that, put the sex part to the side for a second, and I have serious questions about Kozinski's ability to deal with the realities of the 21st Century. How many times do people have to say it:

NOTHING IS PRIVATE
ON THE INTERNET

Shouldn't someone who deals with federal criminal statutes dealing with computers, kiddy porn, and the like be aware of something like that? Jeez.

Support from Unlikely Quarters

Now that Barack Obama is the presumptive Democratic nominee, he and his advisers are busy trying to win enough support to get in the White House next year. There's one group that looks to be giving Obama's campaign unlikely support, at least, well, "immoral" support. Via Dave at Orcinus, the Southern Poverty Law Center's Hatewatch reports that white supremacists are hoping for an Obama win in the fall:

It’s not that the assortment of neo-Nazis, Klansmen, anti-Semites and others who make up this country’s radical right have suddenly discovered that a man should be judged based on the content of his character, not his skin. On the contrary. A growing number of white supremacists, and even some of those who pass for intellectual leaders of their movement, think that a black man in the Oval Office would shock white America, possibly drive millions to their cause, and perhaps even set off a race war that, they hope, would ultimately end in Aryan victory.

See the linked article for direct quotes. I'd rather not sully the Ranch with their bilge.

I do love how Dave poses this obvious question:

Of course, none of them seem to have considered the prospect of what will happen if an Obama presidency succeeds -- which, I guess, should be expected, considering their blind spots.

Blind spots indeed - where's Clayton Bigsby when you need him?

Free Speech Takes a Hit in Canada, Too, Maybe

Since I've been blogging a lot about free speech issues lately, I thought I'd pass along this story from today's New York Times, contrasting the US stance on "hate speech" with other Western democracies, using a pending Canadian case as a catalyst:

A couple of years ago, a Canadian magazine published an article arguing that the rise of Islam threatened Western values. The article’s tone was mocking and biting, but it said nothing that conservative magazines and blogs in the United States do not say every day without fear of legal reprisal.

Things are different here. The magazine is on trial.

Two members of the Canadian Islamic Congress say the magazine, Maclean’s, Canada’s leading newsweekly, violated a provincial hate speech law by stirring up hatred against Muslims. They say the magazine should be forbidden from saying similar things, forced to publish a rebuttal and made to compensate Muslims for injuring their 'dignity, feelings and self-respect.'

As the article explains, the US is an outlier in the West for valuing free expression over communal/societal harmony.

Our theory goes that it is both dangerous to allow the state to regulate speech because it might offend someone's "dignity, feelings and self-respect" and that the best antidote to hateful speech is more speech (the "marketplace of ideas"). Their theory goes that a modern democracy must maintain an "atmosphere of mutual respect" in order to ensure participation from all segments of society.

Those theories are products of different legal traditions and national histories and I can understand where the Europeans and Canadians are coming from. I can't help thinking, tho', that given the impossibility of enforcing respect and the dangers of chilling legitimate (if vulgar, hateful, or just plain stupid) speech that we tend to get the better of the argument.

Some Kind of Assholes

Honestly, beyond one acclaimed documentary, I don't have a whole lot to say about Metallica - metal's not really my thing. But I am aware of their penchant for looking like complete assholes every now and then when it comes to the Net. Take this latest incident, for example:

Here's the scenario: internationally known heavy metal band with long history in the business invites music critics in London to listen to six tracks off the band's forthcoming album. Those critics then write reviews based on what they've heard. Despite the total lack of any non-disclosure agreements and the fact that the band must have known what it was doing, its management then contacted the blogs in question and asked them to take down the reviews.

The band's excuse is that the tunes were "rough mixes" that weren't really finished - which begs the question of why play them for outsiders in the first place!

As I said, this isn't the first time the band has warred against the Net:



Ah, good times.

Album of the Day

Live at the Murat, by Umphrey's McGee (2007): The theory is that jam bands are really in their element playing live and that studio albums can't match the groovy goodness of a live show. Why do I find just the opposite to be true? The couple of Phish studio albums I have I enjoy quite a bit, but the live stuff I've seen/heard leaves me cold. I picked up a cheapo used offering from post-Dead outfit The Other Ones (largely due to Bruce Hornsby's presence), which promptly bored me to tears. And with UM, similarly, it's the studio albums that really get me going. This two-disc set, recorded in Indianapolis, is perfectly OK, but it doesn't stick with me. Most of the tunes - even the ones I know from studio discs - run together in seamless endless jams. I dig what's happening at the time, but nothing is left behind in my brain. I had a similar reaction to one of their live DVDs I Netflixed last year. Maybe I'll change my mind when/if I ever get a chance to see them live in the flesh.

Religious Nut or Performance Artist?

OK, I like a news story about a good book burning as much as the next guy (it's reignited a story idea I've been hashing out, too), but when the leader of the festivities presides over the "International House of Prayer," could it all be just a joke? Let's hope:

'It is allowed for Harry Potter to be taught in our schools, but not the Bible,' International House of Prayer pastor James Crawford said during the Shreveport Regional Unity of Faith Revival.

That is one reason pastors from several denominations and races ripped pages from 'Harry Potter and the Sorcerer's Stone.' Those and pages from a pornographic magazine were put into a burn pit and set afire as praises bellowed from the congregation.

Does this loon actually think that the Potter books are taught in school as anything other than fiction and/or literature? They can use the Bible the same way, you know. They just can't teach that it's true . . . just like the Potter books (or The Grapes of Wrath or King Lear, for that matter!).

But, again, I suspect this might be some sort of performance art piece, when things like this get written:

The book burning and revival also marked the meeting of a diverse group of ministers, including Elliot McPhatter, of Total Deliverance Church, Young Doo Kim, of the Shreveport-Bossier Presbyterian Church, and John Valdez, of Bossier City Four Square Church.

Wow, four different fundy ministers, that's quite diverse! Reminds me of the line from The Blues Brothers:

Elwood: What kind of music do you usually have here?
Claire: Oh, we got both kinds. We got country *and* western.

If I laugh, it's not so frightening that this sort of thing is happening in the 21st Century.

UPDATE: Check out the comments to the linked article about this event. Some of the participants and Rev. IHOP himself show up. It's surreal.

More Congressional Buffoonery

Remember the "Zone of Death" I blogged about last month? The author of those law review articles, Brian Kalt, has an update of sorts, as reported over at Volokh. It involves the federal courthouse in Texarkana, which actually straddles the state (and Circuit) line between Texas and Arkansas: some of the courtrooms are in Eastern District of Texas and the Fifth Circuit, while others are in the Western District of Arkansas and the Eighth Circuit.

Unlike the Zone of Death issue, when Congress was alerted of the potential problems, it acted. But it might as well have done nothing. Read the whole post at Volokh for the details, but as Kalt concludes:

In other words, there was a scheduling problem with criminal trials at the federal courthouse in Texarkana. A solution worked its way through the labyrinthine legislative process; Congress found out about the problem and took decisive action. The solution didn't actually affect the problem at all, but hey, at least it was decisive.

Your tax dollars at work!

Album of the Day

UK, by UK (1978): A few years before Asia took the prog supergroup idea and drove it off a cliff, UK did it right. Taking the rhythm section from the last incarnation of King Crimson, Frank Zappa's keyboard player (armed with the latest in analog synth polyphony), and guitarist from Soft Machine/Gong/Tony Williams Lifetime, UK belted out an exceptional set of prog during the height of the punk avalanche. More jazz influenced than the trio follow up (which I also enjoy a great deal), the debut album puts everyone through their paces in the complex instrumental bits. Add in John Wetton's trademark vocals and Eddie Jobson's sweeping synth and violin and you've got a unique and never replicated slice of proggy goodness.

On Folks Who Sell Drugs

Over at Volokh this week, criminologist James Q. Wilson is guest blogging this week about imprisonment issues. In the comments to this post, and then more in this post and the comments, some folks grapple with the idea that a large chunk of our prison population is made up of non-violent drug offenders. Some say this is a "myth" and argue that people just don't get sent to prison for simple possession of drugs these days. Others maintain that it's a bit more complex than that, with which I agree.

In my, admittedly limited, experience people who end up in prison for drug crimes basically fall into four categories.

First, there are the simple possession folks. I agree that, in our district at least, very few people are prosecuted for simple possession, at least initially. Where simple possession kicks in, however, is when people come out of prison on supervised release. The supervised release statute provides for mandatory revocation (and shipping them back to prison) for simple possession. Given that some Circuits, including the Fourth, conclude that use=possession, simply testing positive for, say, cocaine can send someone back to prison. So, no, simple possession as an underlying offense may not get you sent away, but it will get you there on the tail end.

An exception to that is crack cocaine - simple possession of more than five grams of crack gets you the same mandatory minimum five years that distribution of more than five grams does.

Second, there are folks convicted of possession with intent to distribute. Here's where things get fuzzy with the "possession won't get you sent to prison." Generally, intent to distribute is inferred solely from the amount of drugs you have on you when the police arrest you. If you're a heavy user, who might buy in bulk (just like at Wal-Mart, it costs less that way), you may get tagged as a dealer. It's a tough inference to rebut, given the lack of solid testimony that can be presented on the issue (either from the defendant, obviously trying to exculpate himself, or from other users). So, while the law draws a distinction between "simple possession" and "possession with intent," the intent often comes down more to prosecutorial discretion than any bright line conduct of the defendant.

Third, there are people who are dealers, who deal in order to support their own habits. In other words, they're junkies trying to score the best way they know how - by selling to other junkies. That group, I think, encompasses most of the drug defendants we represent. They generally aren't violent, at least in terms of their drug sales (domestic violence often goes hand in hand with addiction, tho'). They aren't living a glamorous lifestyle. They're simply surviving as best they can.

Fourth, and finally, are what you might call the professional dealers - think Antonio Barksdale and crew from the first season of The Wire. They aren't users, they're organized criminals in the classic sense. They may use violence to protect their product, or not. This groups is what most people think of when they hear "drug dealer" and is the stereotype of crack offenders that the DoJ presented during the Guideline reduction debates. Of course, that stereotype was thoroughly debunked by the Sentencing Commission. This group is probably the smallest of the bunch, aside from the simple possessors.

So, by my experience, the theory that the prisons are full of non-violent drug offenders is true. Are there exceptions in all four groups? Absolutely. But they are just that - exceptions. The harm to society that the mine run of defendants do is significantly less than the harm done by locking them away in cages for absurdly long amounts of time.

Legalism at Euro 08

Remember during Chief Justice Roberts's confirmation hearings when he repeatedly analogized the role of a judge to that of an umpire or referee? I never thought that analogy was particularly apt, for lots of reasons. But one that popped to mind yesterday is the different in time frames involved in making decisions. A judge - particularly a Supreme Court Justice - doesn't need to decide anything on the fly. She can ponder, reflect, send the clerks out to research arcane cases, and then make a decision, sometimes months after the case is submitted.* A ref, on the other hand, has to make a split-second decision, have an almost instant recall of all the rules in order to make it right, and make the decision, even if it goes against common sense.

Yesterday was the opening day of games in the "Group of Death" in Euro 08. After a stupor inducing scoreless draw between Romania and France, Holland put three past Italy for a somewhat surprising result. The first Dutch goal has been the subject of a lot of debate, as the goal scorer appeared to be clearly offside. Here's what happened:



You can also see it from every angle (literally) via BBC Sport's Virtual Replay.

Note how, when clearing the ball, the Italian keeper runs into one of his own players, who falls out of bounds. The goal scorer clearly only had one Italian player between he and the goal - the keeper - which makes him offside, right? That's certainly what the TV pundits thought. A horribly blown call.

Only it wasn't. As UEFA has since clarified, the officials got it right:

UEFA General Secretary David Taylor was reacting to claims from some quarters that Van Nistelrooy was standing in an offside position when he scored the first of the Netherlands' goals in their 3-0 win. 'I would like to take the opportunity to explain and emphasise that the goal was correctly awarded by the referee team,' he said. 'I think there's a lack of understanding among the general football public, and I think it's understandable because this was an unusual situation. The player was not offside, because, in addition to the Italian goalkeeper, there was another Italian player in front of the goalscorer. Even though that other Italian player at the time had actually fallen off the pitch, his position was still relevant for the purposes of the offside law.'

Basically, if you leave the field of play without the ref's permission, you're still counted for offside purposes. That interpretation of the FIFA Laws of the Game keeps defenders from being able to play attacking players into an offside position just by stepping over the end line. But it's applied very rarely and is counter-intuitive: how can a player who isn't on the field of play be part of the play?

It's a very legalistic reading - one that the ref and his assistants made correctly in the heat of a major tournament game between two of the top teams in the world. Let's see the SCOTUS folks do that!

Speaking of goals, there was no doubt about the legitimacy of the second Dutch goal:



End to end in seconds, with the decisive cross delivered by the same player who cleared the defensive line 100+ yards away. That, my friends, is why it's the beautiful game.

*Am I a tad miffed that we're still waiting for a bunch of big SCOTUS cases to be decided this term? You bet!

Should Trials be More Interesting?

Law can often be dull. Contrary to popular entertainments, trials are often dreadfully dull. What you miss on TV or the big screen, for the sake of dramatic tension, are all the foundation questions and mechanical evidentiary things that are important to the record, but put the jury to sleep. With that in mind, should the lawyers involved - particularly the prosecutors - take care to make sure the jury stays interested in the proceedings?

They might want to take heed of this odd trial implosion in Australia, where three months and $1 million worth of work went down the tubes because of Sodoku:

In the District Court in Sydney, Judge Peter Zahra discharged the jury after hearing evidence from two accused men, one of their solicitors and the jury forewoman, who admitted that she and four other jurors had been diverting themselves in the jury box by playing the popular numbers game.

* * *

She said four or five jurors had brought in the Sudoku sheets and photocopied them to play during the trial and then compare their results during meal breaks.

She admitted to having spent more than half of her time in court playing the game.

I have no idea how Australian law works, so I wonder if the mid-trial meltdown will preclude a retrial. I also wonder if, aside from the article's assertion that:

There is no offence under the NSW Jury Act for playing games or being inattentive to a degree that causes a trial to be abandoned.

the jurors can be held in contempt of court? Surely shirking your duty in the box is akin to trying to lie your way out of it (which rises to the level of contempt, IIRC).

That all being said, if it takes three months to try a drug conspiracy case, odds are for the retrial you need to either (a) throw some things out to streamline or (b) jazz things up to keep everybody's attention!

Album of the Day

Allied Forces, by Triumph (1981): Triumph is one of those bands that I really liked when I was younger but never really made a dent in my CD collection (see also, Journey). In fact, for a long time, this was on the only Triumph album I owned on CD. Given that history, I am, perhaps, a little more charitable than the reviewers at PA are. Yeah, some of the tracks are write-off hard rock numbers, but some of the others are quite good, "Magic Power" and "Fight the Good Fight," in particular. No longer a real favorite, but definitely a guilty pleasure.

How Do You Serve a Secret Society?

On the front page of today's Gazette was a story about one of the stranger lawsuits I've seen in a while. A man is suing the West Virginia arm of the Freemasons for, well, basically not being nice to him:

According to the lawsuit filed May 30 in Kanawha Circuit Court, Charlie L. Montgomery and Charles F. Coleman II, both officers of the Most Worshipful Grand Lodge of Ancient, Free and Accepted Masons of the State of West Virginia Inc., summarily threw Frank Joseph Haas out of the Masons for fabricated reasons.

* * *

As Grand Master, Haas tried to make the organization's policies less discriminatory and racist and more in line with the U.S. Constitution and the state's public policy, the suit contends.

'Haas' goal was to make Masonry more tolerant, friendly, decent and accepting of everyone regardless of nationality, race, religion or disability,' the suit states.

* * *

In response, Coleman, who succeeded Haas as Grand Master, 'almost immediately unilaterally entered various edicts rendering the progressive proposals voted on and adopted by a majority of Defendant Grand Lodge null and void,' the suit claims.

* * *

Eventually, Haas was ambushed and given the 'Masonic death sentence' at a November 2007 meeting called by Montgomery at Haas' home lodge in Wellsburg. Montgomery dressed him down in front of his longtime fellow members, including his father.

'[Montgomery] took charge of the meeting and summarily, arbitrarily and unlawfully expelled Plaintiff Haas and another individual from Masonry after lecturing, berating and belittling them,' the suit reads. 'Montgomery's ranting and outlandish attack on Plaintiff Haas were based on trumped up allegations that were false and untrue.'

I will say, from a legal standpoint, there may be a defamation claim there. The dissemination of false information to others - even a fairly insular group - could make that claim.

As for being kicked out of the group - isn't that the point of secret societies? That they have complete control over their own memberships? Granted, my knowledge of the Masons is basically limited to Monty Python sketches (see below), The Simpsons, and nutty conspiracy theories, so maybe they're not so secret anymore.

Buyers' Remorse for Medical Marijuana

Today's New York Times has a long article about the collateral consequences of medical marijuana laws in California. Specifically, the law is creating space of ol' fashioned dealers to operate more freely:

Medical marijuana was legalized under state law by California voters in 1996, and since then 11 other states have followed, even though federal law still bans the sale of any marijuana. But some frustrated residents and law enforcement officials say the California law has increasingly and unintentionally provided legal cover for large-scale marijuana growers — and the problems such big-money operations can attract.

'It’s a clear shield for commercial operations,' said Mike Sweeney, 60, a supporter of both medical marijuana and a local ballot measure on June 3 that called for new limits on the drug in Mendocino. 'And we don’t want those here.'

I think there are two points worth mentioning in response to this backlash.

First, as one medical marijuana proponent in the article points out, any system is going to have its abusers and the key is not to those abusers destroy the entire system.

Second, as is evident from the article and elsewhere, marijuana is a plant that can be grown damn near anywhere by damn near anybody. Converting it to a final usable product is a whole lot simpler than, say, cocaine and a whole lot safer than, say, methamphetamine. Given the ease of production, it's foolish to think that law enforcement will ever be able to effectively deal with it.

Legalize. Regulate. Tax. That's the solution.

Album of the Day (Special Edition)

Wine and Pickles, by Mike Keneally (2008): A break from the regular A-Z pattern to pimp out the latest offering from musical genius, multi-media artiste, and overall good guy Mike Keneally. This is "the album I didn’t know I was making over the last ten years," a collection of alternate versions, songs cut from prior albums, and bits of stuff taken from here and there (including Mike's days composing for the late CourtTV). It's mostly unreleased and mostly very cool. I'm particularly enjoying the cut-from-Dog version of "Li'l," with its very Umphrey's McGeeish opening, the original version of "Backwards Deb" (from Dancing), and the extended version of a favorite from Dancing, "Skull Bubbles." A very nifty collection for Keneally fans of all ages!

Your Weekend Soccer Fix

Yeah, I know, you didn't think you needed it, right? Too bad, here it comes.

First up, the European Championship (aka Euro 08) kicks off this weekend in Switzerland and Austria. It's the biggest national team tournament outside of the World Cup and is somewhat less predictable, IMHO. In 1992, Denmark was brought in as a last minute replacement for Yugoslavia (then undergoing civil war) and walked away with the title. Last time out, in 2004, Greece stunned everyone by winning the title, beating hosts Portugal in the final (for the second time). This tournament has created a little controversy due to co-host Austria's automatic bid in light of their pathetic footballing history:

For all those fans seemingly delighted to be staging the event there are plenty more naysayers anguishing about the right of Austria, 92nd in the Fifa rankings, to stage the tournament.

An online petition has even urged Austria's national side to withdraw from the tournament, arguing that 'it cannot be denied: the performance of the Austrian team is an insult to your sense of aesthetics as well as to what you expect from this sport'.

Austrian graphic designer Stefanie Schoeffmann has also produced a range of clothing bearing the slogan 'hosted by losers', a less than upbeat take on the official "hosted by friends" tournament theme.

The Goal blog at the New York Times is on the case, with previews of each of the four groups: A (including Portugal and the Czech Republic), B (friendly neighbors Germany and Poland - again), C (the "Group of Death," including Holland, France, and World Cup holders Italy), and D (Spain and Greece). TV coverage on the ABC/EPSN family in the United States, starting Saturday morning.

Secondly, a heartwarming tale (also from the New York Times) about a kid living his dream in MLS. Jorge Flores won a Spanish-language TV contest that gave him a tryout with MLS side Chivas USA. Not only did he win the contest, he won a spot on the club roster and has become a fixture in the US's youth international sides. He'd scored goals in three straight games before last night's shutout against Red Bull NY. Given our lack of attacking flair at this point, I hope Flores's Cinderella story continues for a long time.

90 in the Shade!

Since I'm well down on the totem poll in the courthouse family, I don't get to park in the garage in the basement (only 2 people in my office are so blessed, IIRC). So I park in the building across the street, which at least keeps the car out the weather and provides some measure of temperature control. After work today, I trudged across the street and fired up the Heart of Gold, which informed me that it was 90 degrees outside. That's in the shade of the parking building (it was 94 by the time I got home). In other words - it's pretty damn hot out there! And no signs of a break for several days.

Just for the record, are all the yutzes who made cracks about how global warming must be a scam during a cold snap last winter going to have a come to Gore moment in the middle of a heat wave? I somehow doubt it.

Album of the Day

Psychoderelict, by Pete Townshend (1993): Since I blogged about this album last year, I had a chance to Netflix the DVD of a live performance Pete did in back when the album came out (the DVD just came out in 2006), complete with actors handling the main speaking roles. Musically, it's great - several tunes get stretched and jammed out - and it's visually cool, but the acting is depressingly wooden. Which is a shame, because I think staged that way it would reach a broader audience, which is really deserves.

It's Over - Isn't It?

I thought that once the final state primaries took place this week, the Democratic presidential quagmire would fall into place. I sense that it is, but it's sure looking weird. TalkLeft has a copy of the email that Clinton sent out to supporters today, which sets out a speech for Saturday in which Clinton will throw her support behind Obama and focus on defeating the GOP in the fall. But she doesn't use the word "endorse" & the girlfriend has heard that Clinton is merely "suspending" her campaign and will not release her delegates. I hope that doesn't pan out - the quicker we resolve this situation definitively, the better.

And now, some Genesis:



"Los Endos" - I certainly hope so.

New Bling for Charm City

Baltimore is about to get some statuary to celebrate a favorite son - Frank Zappa. Well, he should be a favorite son, anyway:

Most Baltimoreans are aware of their hometown's claim on Edgar Allan Poe, H.L. Mencken and John Waters, but fewer know that Zappa, who made more than 50 records between the late 1950s and his death in 1993, was born in Baltimore, the son of immigrants from Sicily.

His family lived in the 4600 block of Park Heights Ave., then moved to Edgewood in Harford County. Zappa's father, a chemist and mathematician, had a job nearby at Aberdeen Proving Ground. They moved to California when Frank was 10.

You can see a bit of the 15-foot sculpture here. It's a copy of a bust that is located in Vilnius, Lithuania.

Album of the Day

Human Interest Story, by 3rDegree (1996): I've written about this album several times before (including in the ancient 95.62% Text Web Page days), so I won't rehash that stuff here. Instead, I'll give a free plug - after more than a decade, the band is back with a new album, Narrow Caster, which you can (and should) order from their web page here. There's also a new live DVD/CD package taken from a couple of post-reunion concerts. Way back when I first reviewed the album, I said:

Having said that, this album was a pleasant surprise. I have no idea what happened to the band since the release of this album. The web site listed on the CD doesn't exist anymore, so I don't know if they are even still around. I hope so, because I'd like to hear what they did after this release.

Guess I'm about to find out!

Hey, We're Not All Sister Shaggers After All

In the wake of Dick Cheney's lame attempt at humor the other day at West Virginia's expense, Slate's "Explainer" finally dispels the notion that we're just a bunch of inbred hicks:

How'd West Virginia get a reputation for inbreeding?

Exaggeration-prone outsiders. In the 1880s and 1890s, writers such as Mary Noailles Murfree and John Fox Jr. traveled across Appalachia, looking for 'local color,' and overstated the degree to which mountain populations lived in isolation. During the same time period, missionaries reported pervasive ignorance and poverty, with large families living together in ramshackle cabins. The notion of widespread inbreeding was at least in part the result of crude assumptions about how these isolated forest people might have been perpetuating their communities.

It's true that, through the 19th century, transportation networks developed slowly in the rugged, westernmost portion of Virginia (incorporated as West Virginia in 1863). The area was never entirely cut off, but many people lived in remote 'closed communities' with little incoming or outgoing migration. Research on intrafamilial marriage in such enclaves is slim. In 1980, anthropologist Robert Tincher published a study titled 'Night Comes to the Chromosomes: Inbreeding and Population Genetics in Southern Appalachia,' based on 140 years' worth of marriage records. He concluded that 'inbreeding levels in Appalachia … [are neither] unique [n]or particularly common to the region, when compared with those reported for populations elsewhere or at earlier periods in American history.'

There you go. We're the victims of baseless assumptions of outsiders trying to make a buck. Typical.

Album of the Day

Not as Good as the Book, by The Tangent (2008): When it comes to "special edition" promo ideas, the new Tangent album has a good one. Rather than include a bonus CD or DVD of demos, outtakes, or live performances, the special edition of Not as Good as the Book comes with . . . a book! A sci-fi novella, in fact, written by Tangent leader Andy Tillison. I haven't read it yet, but from what I remember it involves the Yes album Relayer and the destruction of the Earth. If it's as good as the music particularly the title track and the epic "Four Egos, One War," I'll enjoy it greatly, although I already know what is "not as good as the book," at least.