From the monthly archives:

April 2009

Clive Crook on Torture: A Second Try

by Henry on April 30, 2009

Since my first attempt to critique Clive Crook on torture seems to have “ended rather badly”:http://clivecrook.theatlantic.com/archives/2009/04/more_on_torture_prosecutions.php, here’s a second go. NB that this post is _not_ an obviation of “the apology below”:https://crookedtimber.org/2009/04/28/torture-schmorture/ for my initial misunderstanding and mischaracterization of his position. That stands – if I screwed up in reading him, I screwed up in reading him, and am perfectly prepared to take my lumps. It is, instead, a reflection of the fact that my perplexity has in part increased as he has sought to explain himself and his position further. I am quite confused about the logical connections that are supposed to pull key parts of his argument together. Now this confusion could be a reflection of my ‘remarkable incompetence’ as a reader, or alternatively of my ‘total lack of good faith.’ Or it could be a result of incoherencies either in Crook’s views themselves, or in his presentation of same. Because I simply don’t get the argument that he is making (and from the evidence of our comments section, at least some others are similarly confused). And I’ll try to present my understanding of it as non-snarkily as possible in the hope that if I don’t use words like ‘reprehensible,’ he won’t continue to suggest that I am an idiotic hack and a disgrace to the legacy of the “blessed Isaiah Berlin”:http://www.georgescialabba.net/mtgs/2001/10/the-crooked-timber-of-humanity.html, if indeed he bothers to reply at all. [click to continue…]

The Failed Conservative Revolution

by fabio_rojas on April 30, 2009

This essay is cross-posted at Orgtheory.net, the social science and management blog. For earlier discussion of this book, with Steve’s responses, click here.

Steven Teles’ The Rise of the Conservative Legal Movement (RCLM) is an important book. It is one of the few studies to thoroughly address the institutionalization of conservative politics. It’s also a well motivated account. Using ideas from contemporary sociology, Teles frames the conservative legal movements as an example of resource mobilization. Winning elections isn’t enough to implement conservative policy. One must create conservative networks and organizations that can be used to fight and win court battles. [click to continue…]

Fabians and Gramscians in law and economics

by Henry on April 30, 2009

One important part of Steve Teles’ story is the rise of law and economics as a major approach to understanding how the law and regulation does (and should) work. Steve has a nice discussion of how law and economics became institutionalized, despite the opposition of various law professors, in two key ways. First, rich donors (and especially John M. Olin) helped support law and economics programs in a variety of law schools around the country (including non-conservative schools such as the Boalt school in Berkeley). Second, Henry Manne built up George Mason University’s Law School as an explicitly libertarian institution.
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Fero, Planet Detective

by John Holbo on April 30, 2009

I’m on this private list (a thing consisting of a set of private tubes or private trucks) on which the question arose: occult detectives? History of? I suppose it starts with Poe (where else?) Some interesting names were suggested. This site was linked.

But, tragically – sinisterly, even – no mention was made of possibly the greatest occult detective of all. Ladies and gentlemen, I give you …

fero

He appeared in a 1940 issue of Jungle Stories, available in this volume [ amazon].

Not to give away the ending, but …

fero2

Fero, Planet Detective:

Turn-offs:
Long walks on the beach
Women

Turn-ons:
Detecting planets
Stamping out vampires of Pluto that have invaded the earth.

Adventures in the quotemines of Oz

by John Quiggin on April 30, 2009

The Australian , commonly referred to as the Oz, is Australia’s only national general[1] newspaper. It’s also been, for some time, a national joke, particularly among bloggers, for its continuous War on Science, particularly as related to climate change, and for its propensity to melt down in response to criticism from blogs and media critics.

Last week, I added a bit of fuel to the fire with a column in the Australian Financial Review attacking the delusional thinking behind claims that the science of climate change is a hoax, fraud or conspiracy, which included the following passage:

While most media outlets give at least some space to these conspiracy theorists, the central role has been played by The Australian. Not only its opinion columnists (with a handful of honorable exceptions) and its editorials, but even its news reporting is dominated by the idea that mainstream science is on the verge of being overturned by the efforts of a group of dedicated amateurs, publishing their findings not in the peer-reviewed literature but through blogs, thinktanks and vanity presses

That looked a bit different when it came out of the quote mine.

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Personal Networks in History: A Bleg

by Henry on April 29, 2009

Help requested – I am frantically writing a paper, and trying to remember where I came across a particular datum from a historian (which was, I think, cited in a more general text – perhaps James Scott’s _Seeing Like A State_; perhaps not) The datum was that peasants in mediaeval societies knew only a very limited number of other people, and that the average peasant in France (or perhaps the UK), would meet only eighty people or so over the course of his/her life. Anyone out there know where this claim comes from?

Maureen Corrigan reviewed sometime CT commenter George Scialabba’s new book What Are Intellectuals Good For? on Fresh Air last night. I’m only about half way through it myself, and am reading in the chaotic way that I tend to read collections (moving randomly between chapters at whim — though to be honest I read just about everything other than detective stories the same way), but I agree with her very positive review so far, especially enjoying the several invocations and discussions of Matthew Arnold whom Scialabba admires greatly. She says:

What Are Intellectuals Good For?, has been published in a beautiful paperback edition by the tiny Pressed Wafer. No one could expect it to be a stealth best-seller. But if you’re at all interested in 20th century thinkers like Noam Chomsky, Dwight Macdonald, William F. Buckley, Ellen Willis and Christopher Lasch to name a few, and in the larger question of whether the world would be poorer if they’d never written a word, then you’ll find Scialabba’s ruminations here invigorating. In fact, just reading Scialabba’s collection will make you feel smarter — even if it’s not clear if that kind of smarts has any direct social utility.

In fact I’d take issue with a little bit of that. It makes me feel stupider, not smarter, but I like books that do that. And I don’t, really, see why it shouldn’t become a stealth best seller. The in-progress CT book event will, no doubt, transform it at least into a stealth pretty-good-seller. (In fact, at time of posting it is #112 at amazon, no doubt somewhat helped by her review).

Legal Conservatives as Closet Gramscians

by Kimberly on April 29, 2009

The first thing to be said is that Steve Teles has written a terrific book.  The Rise of the Conservative Legal Movement tackles a topic of vital importance, is exhaustively researched and documented, and offers thoughtful and nuanced arguments that, for the most part, persuade.  The book also achieves the rarely achievable: it bridges the divide between academia and, for lack of a better term, non-academia, offering a theoretically rich account that draws on historical institutionalism, organizational theory, and the sociology of knowledge, while also supplying much red meat for political columnists and combatants from across the ideological spectrum.  I especially appreciated his desire to pry open the black box of organizational dynamics, looking not only at why the conservative legal movement has had many successes, but how it has done so, with attention thus to the crucial ingredients of money, leadership, luck, and learning that contributed to these successes.  I also learned a great deal about both the conservative legal movement and American politics in the late 20th century. [click to continue…]

Living Life Forwards

by David Post on April 29, 2009

“Life must be lived forwards, but it can only be understood backwards.”1

“One of history’s uses is to remind us how unlikely things can be.2

I have considerably less to say about Steve Teles’ book than the other participants here. That should not be taken as criticism of the book – indeed, I think that The Rise of the Conservative Legal Movement is a terrific book, scholarship of the highest order, and I learned a great deal from it – about the rise of the “LLN” (Liberal Legal Network) in the 1960s and 70s (and in particular about the role that the Ford Foundation, under its then-President MacGeorge Bundy, played in developing that network, about which I knew very little prior to reading this book), about the early failures of the counter-revolutionary attempts (by groups such as the Mountain States Legal Foundation and the Center for Constitutional Litigation), about Henry Manne, and Richard Mellon Scaife, and the Olin Foundation, about the rise of “law and economics,” and about many other people, events, institutions, and ideas that played an important role – at least, Teles has persuaded me that they played an important role – in the rise of the conservative legal movement. [click to continue…]

The Luck of the Irish

by Henry on April 29, 2009

From the “Irish Times today”:http://www.irishtimes.com/newspaper/frontpage/2009/0429/1224245599909.html …

IRELAND IS set for the sharpest fall in economic growth experienced by an industrialised country since the Great Depression, the Economic and Social Research Institute (ESRI) says in a report published today. The institute’s spring quarterly economic commentary estimates that gross national product will fall by 9.2 per cent this year. “Our forecasts suggest that Ireland’s economy will contract by around 14 per cent over the three years 2008 to 2010. By historic and international standards this is a truly dramatic development. “Prior to this the largest decline for an industrialised country since the 1930s had been in Finland, where real gross domestic product declined by 11 per cent between 1990 and 1993,” according to the ESRI.

Curtain Call

by John Holbo on April 29, 2009

Great posts today. Welcome to our guests. But here’s something light, in case you need a break. Found photo, found on Flickr:

kingqueenprincess

Larger version here.

Department and punish

by Michael Bérubé on April 28, 2009

In <a href=”http://www.michaelberube.com/index.php/weblog/comments/1269/”>comments to a post</a> over at my newly-renamed Other Place, a person by the handle of FrogProf directed me to <a href=”http://suburbdad.blogspot.com/2009/04/project-based-education-response-to.html”>this discussion</a> of <a href=”http://www.nytimes.com/2009/04/27/opinion/27taylor.html?_r=2&ref=opinion”>Mark Taylor’s recent (and very strange) <i>New York Times</i> op-ed</a>.  Taylor’s essay is modestly titled “End the University as We Know It,” and the response, from (as it says on the blog banner) a veteran of cultural studies seminars in the 1990’s who has since moved into academic administration, takes apart Taylor’s proposal for replacing departments with temporary topic-clusters with seven-year sunset clauses:

<blockquote>I’m at a loss to explain where all these interdisciplinary experts will get their disciplinary expertise. Yes, a significant part of grad school involves exploring new questions. But another significant part — the part he skips — involves getting grounding in the history of a given line of inquiry. Call it a canon or a discipline or a tradition, but it’s part of the toolkit scholars bring to bear on new questions. Abandoning the toolkit in favor of, well, ad hoc autodidacticism doesn’t really solve the problem. If anything, it makes existing grads even less employable than they already are. I need to hire someone to teach Intro to Sociology. Is a graduate of a program in “Body” or “Water” capable? How the hell do I know? (And even if I think I do, can I convince an accrediting agency?) Am I taking the chance? In this market? Uh, that would be ‘no.'</blockquote>

I agree that Taylor’s proposal is unworkable, but I have a tangential-but-related point.  Challenging the departmental structure of universities (whatever you might think of that project) isn’t the same thing as doing away with <i>disciplines</i>.

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Torture, Schmorture

by Henry on April 28, 2009

I used to put Clive Crook in my ‘disagree with him on mostly everything but basically a decent-sounding and reasonable guy’ box, but not any longer. This “piece”:http://www.ft.com/cms/s/0/4af5dad2-328c-11de-8116-00144feabdc0.html on how (a) we shouldn’t do waterboarding on pragmatic grounds, but (b) it isn’t really torture, is reprehensible.

It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed. … The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.

First off – if prosecuting torturers makes bipartisanship more difficult, then tough shit for bipartisanship. The prospect for actual bipartisan consensus between people who think that torture is a good thing, and people who think that torture is fundamentally abhorrent is obviously rather limited. Crook’s preferred approach of ‘mistakes were made’ is effective capitulation to the pro-torture side. Obviously, torture _shouldn’t_ be a partisan issue, but that it is tells us an awful lot about the shape that the Republican party is in today. Second, his guff about how no journalists or Youtubers have volunteered to be flayed or have their fingers crushed seems to me to be actively disingenuous. According to the “Bradbury memo”:http://emptywheel.firedoglake.com/2009/04/18/khalid-sheikh-mohammed-was-waterboarded-183-times-in-one-month/, Khalid Sheikh Mohammed was waterboarded _183 times_ in March 2003. If there are any journalists or Youtubers lining up to be waterboarded 183 times in a month, I haven’t heard about it. Which suggests (if I’m wrong, and if Clive Crook really believes that what happened to Mohammed was no great sweat, wasn’t really torture etc) that there is a gap in the torture-porn punditry market that Mr. Crook himself can fill, by himself volunteering to be waterboarded 183 times so as to demonstrate that it isn’t really torture, has no lasting effects &c&c. To fit this in with his doubtlessly busy schedule, I’d be prepared to spot him a few ameliorations – perhaps he could do this over a three month period, not be subjected to stress positions, nasty cramped cells or other forms of abuse. And perhaps he could even live-blog the experience for the _Financial Times_ or the _National Journal_ (or, if he wants to go a bit downmarket, do it for reality TV – I’ve no doubt that there would be an audience).

Update: “Clive Crook responds to critics, including me”:http://clivecrook.theatlantic.com/archives/2009/04/more_on_torture_prosecutions.php.

Let me reprise some of the main points from my column on torture prosecutions:

(a) Possibly, torture can succeed in extracting vital information.
(b) On balance, however, torture does not make the US safer.
(c) In any event, it is shameful and wrong.
(d) Waterboarding is torture in the ordinary meaning of the word.
(e) Notwithstanding (d), the law is not as clear as it should be on whether waterboarding as practised during the Bush administration is torture under the law.
(f) Congress could and should have outlawed waterboarding explicitly already. It should do so now.
(g) Because of (e), and because the issue is so acutely divisive in the US, prosecutions under the existing law may serve neither the cause of justice nor the public interest.

Most of the non-abusive emails I have received about this rightly concentrate on (e). They say that domestic and international law on this is perfectly clear. They point out that the US has prosecuted foreigners and its own citizens for waterboarding in the past. A few have referred me to this much-cited paper by Evan Wallach, which I was familiar with before writing the column and which is well worth reading. The author also had a column in the Washington Post summarising his argument.

I acknowledge that I am not well qualified to judge this issue. I am not a lawyer, but I have wrestled with the law on it enough to know that it is far from simple and a matter of dispute among lawyers. As now seems to be mandatory on this and other issues, positions are stated with false certainty and with unyielding moral absolutism. It is necessary to read everything sceptically.

The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred–absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that–to stay within it. As for whether, regardless of domestic law, the international Convention Against Torture mandates prosecution, you have to understand the distinction between treaties that become the law of the land in and of themselves, and treaties that the US adopts, and in effect modifies, with a law of its own. The Convention Against Torture is of this second type. Arguably, therefore, relevant parts of the CAT are not enforceable in US courts.

Incidentally, there is further disagreement over whether the US government has discretion not to prosecute, even if it takes the view that a law has been broken. Some constitutional lawyers say it does not. The administration’s promise not to prosecute interrogators implies that it thinks either the law was not broken, or else that it does have discretion not to prosecute.

If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically. So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods. And I think the same goes for the suggestion being made that culprits up to and including George W. Bush should be prosecuted and if found guilty pardoned. I admit, when I first read that I thought, “Only in America”. We stand on the principle that torture is a crime and will be prosecuted without fear or favour to the fullest extent of the law (with pardons to follow). How’s that for a clear message? But at least the rule of law has been upheld, you might reply. Well, as I have mentioned, the rule of law will also be upheld, according to one school of thought, if the Attorney General exercises his discretion not to prosecute.

As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project–it requires the building of a moral consensus, the changing of many American hearts of minds–and in my view it is best advanced not by prosecutions but by the “look forward” approach Obama first said he wanted to follow.

One last thing. I wanted to draw attention to a blogpost attacking my column by Henry Farrell at Crooked Timber. He says: “This piece on how (a) we shouldn’t do waterboarding on pragmatic grounds but (b) it isn’t really torture, is reprehensible.” This remark is abusive, of course, but that is business as usual. What makes it interesting in a professional scholar and writer on a leading blog is its remarkable incompetence–or, perhaps, its total lack of good faith. I ask you to read the column, or review my summary of it above, and ask yourself how any fair-minded intelligent person could distil my position to those two points.

The name Crooked Timber is I imagine homage of a sort to Kant, who coined the phrase, which is worth thinking about–“Out of the crooked timber of humanity, no straight thing was ever made”–and perhaps also to Isaiah Berlin, the great liberal philosopher, who famously referred to it, and whom I count among my intellectual heroes. Berlin’s hallmarks were open-mindedness, tolerance, civility and loathing of absolutism. Professor Farrell, I’d say you’re flattering yourself just a little.

If, as Crook says here, he did not mean to suggest that waterboarding isn’t torture (and I don’t doubt his word), then I clearly owe him an apology. And here it is. I had taken him to be arguing that waterboarding was opprobrious but not torture in the same sense as crushing of fingers or other methods of torture causing lasting bodily harm, along the lines of the administration memos which made more or less that argument. It would seem that all he was saying was that there was a colourable legal argument to this effect. Obviously, I misread him. I still think that his claim that the desire to prosecute torturers is driven by partisans looking for revenge is manifestly wrong, but that is an entirely separate issue from my basic misreading which he (entirely justifiably) took offence at. My bad, and I’m very sorry for it.

Update 2: see “here”:https://crookedtimber.org/2009/04/30/clive-crook-on-torture-a-second-try/ for a lengthier response.

Bunglers, Egos, and Law vs. Politics

by Mark Schmitt on April 28, 2009

“When we care about something, we waste money on it,” the political theorist Benjamin Barber once told me, an aphorism that came to mind frequently as I read The Conservative Legal Movement in America several months ago. On one level, sure, the book chronicles one of the most successful social and intellectual transformations in American history, and perhaps the only one that did not involve a mass movement. The Law and Economics project in particular had an influence far beyond the legal world, bringing the tools and priorities of neoclassical economics to bear on any question of policy, so that questions such as the appropriate level of regulation in financial markets were answered by the very framing of the question. It was an oversimplification, but not crazy, when someone said to me recently, “I want someone to write the whole story of everything that led to the financial crisis, starting with that whole Law and Economics thing.” [click to continue…]

Law and economics has done well for some straightforward reasons. Most of all, law schools have become more research-oriented over the last twenty years. Publication is more important and word-of-mouth about the quality of publication is more important. Law and economics, which draws so much of its method from economics, has been ideally positioned to benefit from this trend, albeit by a kind of historical accident. [click to continue…]