Prima Impressionis

Daily Links - October 9, 2011

2011-10-09T09:11:00.002-04:00

This is very well-argued.

Walt and Mearsheimer will love this book.

What do smart people do with 1.4 million dollars?

Bye, bye.

While on the subject of David Frum, I can definitely relate to this.

Not everyone is so fond of the famous Steve Jobs commencement speech.

Is OccupyWallStreet the US' J-14 Protests?

Daily Links - September 27, 2011

2011-09-27T23:02:00.002-04:00

Aaron David Miller on why Obama would be foolish to try to broker the conflict. Miller clearly respects Abbas more than Bibi.

Nice to see some tolerance out of some Egyptian clerics.

Hussein Ibish on the speech Arafat should have given.

This study doesn't seem so surprising.

Neither does this.

Daily Links - September 26, 2011

2011-09-26T23:18:00.000-04:00

Mearsheimer responds to charges that he favorably reviewed the book of an Anti-Semite. He didn't do much research apparently. That didn't stop Brian Leiter from supporting him.

How important is the fight over the Obamacare mandate to constitutional law? Not very.

Krugman was way off with Ireland.

A poignant and timely call for teams to recognize the psychological needs of players.

I'm going to try to get through this book over Rosh Hashana. Pray for me.

Daily Links - September 25, 2011

2011-09-25T23:05:00.003-04:00

Saudi women are now equal to men -- equally powerless.

An excellent description of where the I/P conflict is right now. Very few are as good as Mead in explaining this stuff.

The Arab Spring is not all peachy, at least for the non-Arabs.

Not exactly a Keynesian view.

An interesting analysis about how Blacks, Jews, Gays, etc. ended up part of the moral community. It's not often the choices are Marxian, evolutionary, or Nietzschen.

Daily Links - September 24, 2011

2011-09-24T22:49:00.002-04:00

But the PA supports terror. Does this make the US a state-sponsoring terrorism?

Some good, some bad, but probably more accurate than Abbas' speech.

A lot of this article could have been written by Elder of Ziyon or Jameel at the Muqata.

What does Walt have to say about his co-author's open support for antisemitism?

Phew, relativity is safe.

Given the existence of a liquidity trap, is inflation the way to go?

Daily Links - September 22, 2011

2011-09-23T00:21:00.000-04:00

There's the final nail in the coffin of the myth that Abbas rejected Olmert's deal. Of course, we already knew that.

Politics is why Palestine will not be able to prosecute Israelis in the International Criminal Court.

Glenn Greenwald chastises Chief Judge Dennis Jacobs for issuing an intemperate, childish opinion -- in an intemperate, childish post.

Cluelessness on the UWS.

His inability to throw the ball to first really was inexplicable.

Daily Links - September 21, 2011

2011-09-21T23:30:00.000-04:00

According to a recent poll a substantial majority of Palestinians support Abbas' gambit at the UN. He may have overstayed his term, but he is doing the will of his people.

More examples of Obama's hatred towards Israel.

Modern science is not a friend of free will.

Yay.

Law as a system of planning.

How the health care mandate does not mean unlimited power for Congress.

Daily Links - September 20, 2011

2011-09-20T23:29:00.000-04:00

Would Milton Friedman have supported more quantitative easing?

Greg Mankiw claims the rich pay more than double of their income in federal taxes. Krugman doesn't think that matters.

The brain is amazing, but it has some amazing flaws.

Even by traditional stats, Rivera is light-years ahead of every other reliever ever.

Why are Jews so clueless when it comes to Obama?

Should Israel challenge China's misconception? (Page 156, at the bottom or search for "protocols").

Daily Links - September 19, 2011

2011-09-19T23:31:00.000-04:00

Hussein Ibish channels Khaled Elgindy in Foreign Affairs and essentially claims that Palestinian statehood bid is designed to further the peace process by breaking the parties out of the rut they are in. Rashid Khalidi disagrees.

Accordingly to a poll taken by the BBC, majority of the world and even majority of Americans support Abbas' gambit at the UN. The US will veto anyway.

Even smart and relatively open-minded people have obvious blind spots.

An excellent post on how Rawls and Hayek/Nozick do not disagree as much as people might think. Should be required reading for the GOP leadership, assuming, of course, they could understand it.

Is philosophical naturalism sustainable?

More data on what is being referred to more and more as the "law school scam."

Kosher lights on Shabbos? Sounds cool, let's leave it at that. Kosher computers/Ipads/Iphones would be the end of the Shabbos.

Is inflation always evil? Not according to Krugman.

Daily Links - September 18, 2011

2011-09-18T22:06:00.000-04:00

Commentary believes that Obama is to blame for the upcoming Palestinian statehood initiative at the UN. Others agree, but for reasons that don't involve assuming the absurd idea that Obama is engaged in a war on Israel.

In anticipation of the Palestinian statehood vote this week, the JCPA put out an E-book that contains some good articles, but also a lot of propaganda. (Hat Tip: EOZ).

Juan Cole is clueless about the Israeli Supreme Court's many orders (I, II) against Israeli land expropriation in the territories.

I assume this post by Elder of Ziyon is supposed to be ironic or he is simply blind to the fact that Zionism creates the exact same problems.

It amazes me that anyone would take Turkey serious on the Gaza issue. Their misdeeds in Cyprus read exactly like what Israel is accused of doing.

Supporters of the "whole Constitution" are no better than Grover Norquist.

Noam Chomsky on apparently why intellectuals should live their lives on the fringes of society.

I have not read this article, but this whole enterprise -- analyzing how Halacha is actually decided -- is long overdue.

Republicans have found one tax cut they don't like -- payroll taxes for poor and middle class people.

The new Steven Pinker book seems to be a tad too long at 832 pages. But if it's anything like his previous books, it will be well-written, meticulously documented, and overly controversial.

I'm Back

2011-09-18T20:59:00.000-04:00

It's been a VERY long time since I last blogged here, but I figure that rather than spamming other people's Facebook feeds, I might as well put my energy here. So I intend to post links to various articles, blogs, etc. a few times a week or even every day, time permitting. From there, who knows? I might start blogging again.For those of you who last read this blog because of the Rafi updates, you should know that Rafi is doing great. He has many surgeries in his future, but he's doing quite well all things considered and even started school this week! He's also excited about his new brother Gavi, who's almost three months old.

Rafi 16 Month Update

2009-12-17T08:32:00.007-05:00

A lot has happened since Rafi's 12 month birthday, especially in his eating development. As mentioned, Rafi no longer relies on a feeding tube for nourishment, but we still had to spoonfeed all his meals until just a couple of months ago. I'm proud to say that Rafi only now needs the occasional spoonfeeding and has since learned to eat food off his booster tray!

In terms of upcoming jaw surgeries, much has been postponed. As we found out at our last NYU conference that when Rafi was born, the surgeons believed that he would need to start those surgeries as early as possible (in Rafi's case when he would be 2 or 2 1/2 years old) due to his health conditions. However, since he is thankfully doing so well, the surgeons would much prefer to wait. The new surgery date is unknown, but will probably not be set until Rafi is about 4 or 5 years old. I had been hoping to get some of his surgeries over with next year, but it seems that it would be best to wait, and so that is what we'll do.

When Rafi is about 5 years old or so he will have additional surgeries concerning his hearing. He currently wears a BAHA hearing aid on a headband, and when he is older, the BAHA will be implanted in place. Also, any ear canal damage or underdevelopment will be resolved in multiple surgeries as well. Eventually he will have a new outer right ear and the ability to hear from it!

In other news, Rafi is doing very well developmentally. He is a healthy, active little boy who loves his toys, books, and whatever outdoor time we can get, weather permitting. Thankfully we have a great playroom in our apartment complex so Rafi can run around indoors (and now he's really running!) in the winter months. Rafi has yet to say any words, but his speech therapists are working on that. They have successfully taught Rafi a few signs, such as "bye-bye," "more," and "give me," which help Rafi communicate his needs.

We are so grateful for Rafi's progress and continue to be so proud of him!

Rafi: 12 month update

2009-09-01T23:44:00.010-04:00

Rafi celebrated his 1st birthday with family and friends this past month, and the event was truly special. After everything our little family has been through this year, the birthday was especially meaningful. It gave us the oppurtunity to thank many of those who helped us and continue to help us deal with our situation with Rafi, whether it be physical or emotional support. Additionally, the birthday gave us the impetus to reflect on this past year and how far developmentally Rafi has grown.

Rafi has now surpassed his need for a feeding tube, his last session with one being in mid-August (and will hopefully never need one again) and he can now stand and walk with great improvement. His babbling shows promise of his first words, hopefully to come soon (can't wait!). Additionally, he shows understanding of simple requests, ("Come to Ima!" or "Give that to me.") by actually following through! Rafi has also stopped receiving feeding therapy, and is now engaged in speech therapy alone, which he enjoys.

A lot has been going on with Rafi's medical situation as well. Just recently, Rafi underwent minor surgery to remove his feeding tube stomach button, which was successful (except that now he's being treated for an infection from the surgery--he should be totally fine within the next couple of weeks). He has also been seeing an audiologist at New York Eye and Ear who fit him for a Baha hearing aid (which is worn on a headband; no surgery required). It's tough to keep the Baha on his head, though, but with time Rafi should get used to wearing it.

Since the weather has been so nice, Rafi's been spending a lot of time pushing his car-walker around various neighborhood playgrounds, especially those with bonus sprinklers. It always surprises me when he suddenly walks away from his little car and ambles off on his own, but I guess I've got to used to seeing that.

All in all Rafi's come a long way and we continue to be so proud of him!

Rafi: 10 Month Update

2009-06-25T08:09:00.008-04:00

At 10 1/2 months, Rafi has made a lot of headway since the 8-month mark. His crawling has advanced to warp speed and he cruises furniture with ease. Rafi's latest feat is standing in place for about 20 seconds--maybe he'll even try walking soon! Some of his other "tricks" include waving bye-bye, clapping, and tossing his toys out of the tub while bathing.

Rafi has continued to grow so well physically that he was actually discharged from physical therapy, making his day-to-day schedule a lot easier to manage. He still receives feeding therapy, and his therapist will also soon incorporate speech therapy, but Rafi is making a lot of progress in his eating as well. Using a hand-held mesh "easy feeder," Rafi enjoys eating soft fruits on his own, and gets a lot of chewing practice. When I blend food for him, I can now make it a lot more textured than in previous months, and Rafi can handle it with marked improvement. He still receives his formula via feeding tube, but he's also getting better at drinking from a sippy cup, so hopefully we won't have to continue with the tube much past his first birthday. We also have an appointment with an audiologist at the New York Eye and Ear later in July, who will be fitting Rafi for a hearing aid in his right ear.

In terms of doctors' appointments, Rafi's schedule has become considerably lighter. After our "make-up" sleep study, which thankfully concluded that Rafi does not need any kind of ENT surgery at the moment, his appointments are at an all-time low. We did have a scare at the end of last month when his feeding button (port on his stomach) fell out (we were warned that could happen) and we had to take a late-night trip to the ER to get it replaced. After it fell out again the next afternoon, the doctor concluded that it was simply too small and placed a larger-sized one instead. Since then, we thankfully haven't had any trouble with it.

Since we're not spending too much quality time at doctors, Rafi has really expanded his recreational side. We've been to the weekly storytime sessions with other infants at our local library and also frequent the playgrounds. Rafi loves the swings, slides, crawling around and picking up foreign objects, and watching the older kids. Our building complex thankfully has a great playroom for rainy days and now that Rafi is a little older, he can appreciate many more toys. We also recently went to the Central Park Zoo and Rafi fearlessly pet the sheep and goats.

All in all, things are really improving for Rafi. He is just a regular baby, soon to be toddler, very inquisitive and curious, and getting his hands into anything they can reach. We are so grateful and fortunate for his progress and hope he will continue to grow and develop as well as he is now.

Rafi: 8-Month Update

2009-04-22T10:36:00.006-04:00

Rafi is now about 8 and a half months old and continues to be one resourceful little boy. After a long while of experimenting with variations, Rafi has finally learned how to crawl! He's also pulling up on furniture, cruising a little, and can now lower himself back to the ground a lot more gracefully than when he first started. Babyproofing has turned out to be a work-in-progress since it's sometimes tough to figure out what he can and cannot get himself into, but we adjust his space accordingly.

In terms of speech, Rafi's recently added "ma-ma" to his vocabulary of random yells and croaking sounds. He'll undoubtedly need speech therapy because of his irregular jaw, but it's good to know that he's motivated to try new sounds.

Feeding Rafi has always been an issue, and the feeding tube will remain his main source of nutrition until he's about a year old. It's sometimes tough to feed an energetic baby who technically doesn't have to sit still to eat (although it would certainly make the process easier for me!), but thank goodness for distracting PBS shows. On Shabbos and Yomtov, reading to him while he's eating is generally enough of a distraction. Rafi loves to hear his books while eating solid foods, which he eats pretty well, although we're still in the stage 1, super-pureed foods, and have to hold off on finger foods. He can drink pretty well from a regular cup, (if I hold it while he's drinking), which is also promising for eventually dropping the feeding tube. Just a short while ago, Rafi actually held and drank from a cup of water all by himself (except that he was in the bathtub at the time, ewww!).

I still take Rafi to lots of doctors' appointments and other tests, and we recently saw his dentist, cardiologist, pediatrician, one of his surgeons, and ENT. Everyone was pleased with Rafi's tests, besides for the ENT. He did not like the results of the last sleep study (some numbers had improved, while others had not) and asked us to retake the test. We'll be going to the site of our first sleep study (definitely not Cornell) this Sunday night, and hopefully the poor results were just the result of a poorly done test. If the results are the same however, then the ENT said that the NYU team would have to discuss surgery options. This is, of course, disappointing, when everything else seems to be ok, but we'll have to wait a bit and see what happens.

Otherwise, Rafi is doing so, so well. His Early Intervention therapists are happy with his progress, and so are we.

Rafi Update -- 6 Months Old

2009-02-09T20:39:00.007-05:00

Thank G-d, Rafi is doing very well right now, and we couldn't be happier with his remarkable progress. He's meeting a lot of major developmental six-month milestones: eating solid foods (so far, pears are his favorite), outgrowing his baby bathtub, getting up on his hands and knees and creeping a little, grabbing and mouthing anything he can get his hands on, babbling, growing his first tooth and in general being alert and interested in everything going on around him. Rafi's personality is really starting to show, and he seems to be a happy, generally cheerful baby.
He still receives the majority of his food through a feeding tube, but if he continues to grow stronger in his oral eating habits, hopefully by the time he's a year old we can get rid of the tube and have him eating exclusively by mouth, which would be truly great. Rafi recently received a new feeding tube set, which makes the feedings a little easier to manage.
Rafi's still being closely followed by one of his surgeons, Dr. Warren, at NYU Plastic Surgery and Reconstruction, and we consult with him about once a month about his upcoming jaw surgery. Dr. Warren sends us on tests to keep up with the situation, and our most recent one was an overnight sleep study this past Saturday night to monitor Rafi's sleep apnea. All I can say is that if you ever have to do a sleep study, don't do it Cornell Hospital (with or without a baby). That had to be one of the worst nights of my entire life. They were entirely unprepared for the baby, although I had clearly made the appointment for him, and did not even provide us with a crib. Suffice it to say that Rafi and I (and Nephtuli, who had to pick us up fairly early in the morning from the hospital) went back to sleep the minute we got back to the apartment Sunday morning. For our next study, we'll return to the sleep facility where we went the first time, and had a much better experience. We'll have the results next week, and we're hopeful that his apnea has improved since he's been a couple of months old.
Rafi also receives help, four times a week, from a couple of Early Intervention therapists for feeding and physical therapy. Both therapists come to the house (Thank G-d) and are great to work with. They're confident that Rafi will continue to meet his milestones and are pleased with his success. He still has some progress to make, and they're working hard to help him meet more goals.
We're also monitoring Rafi's (repaired) heart condition at Columbia, (where he had his heart surgery), and thankfully, his heart looks good and strong. There were some side effects from the surgery, but nothing that is too difficult to manage at this point. The blood clot that was seen initially turned out to be benign, so that was good news.
We also had good news from his audiologist--underneath it all, his closed-off right ear is completely functional. So, once his surgeons give him a new ear, he'll have two, fully-working ears. In the meantime, he can barely hear out of his right ear, but since his left ear is fine, he should be able to learn language as well as anyone else. Starting at about a year old, until his ear surgery, (about 6-7 years old), he'll have a hearing aid to help him localize sounds.
His upcoming jaw surgery is a little complicated: he would have already had it, since it causes lots of problems, such as sleep apnea, smaller airway, feeding tube, but Rafi is missing a key jaw bone needed to complete the surgery. Therefore, Dr. Warren is waiting until Rafi is a little older so that his baby bones will continue to harden and become available for a bone graft procedure. This will require at least two surgeries (one for the graft and jaw surgery) and we still don't know exactly when the surgeries will get started. If his condition c"v deteriorates, then Dr. Warren will be forced to do something extreme (a tracheotomy) which we, of course, do not want to happen, but thankfully, it does not seem that we will have to resort to such drastic measures at the moment.
At home, Rafi enjoys his playmat, toys and Exersaucer and is a bundle of energy. Thank goodness he still takes regular naps and sleeps pretty late in the morning (averaging about 9:15 AM) so I have some time to recharge and get things done around the house. We adore our little boy and continue to be thankful to so many people who have helped, and continue to help us along the way.

Like Cutting One's Fingernails

2009-01-05T22:41:00.002-05:00

One of more maligned films in the Jewish world in recent memory was Munich. Munich told the story of the aftermath of the massacre at the Munich Olympics. As everyone is well aware, Israel recruited a team of assassins to kill the members of the Black September who plotted the massacre. The movie takes a number of liberties with the facts and is designed to get across the moral difficulties inherent in such forms of retaliation.

At the end of the movie the protagonist Avner, no longer the cockeyed idealist at the start of the movie, poignantly asks his handler what was gained from killing these men; after all they were quickly replaced. To which his handler responds "why cut my fingernails? They'll only grow back."

That's what Israel is essentially doing in this war. Israel cannot wipe out Hamas. Right now there is no other group that is capable of controlling Gaza and Israel has no interest in returning to Gaza. But Hamas was getting too powerful and was shooting too many rockets into Israel. So Israel decided to weaken Hamas so it would have a short respite until the next round comes in a few years. These are the realities of the Middle East where conflicts do not lend themselves to easy solutions.

That said, I don't understand what Israel intends to gain by launching this ground incursion. The loss of life and suffering on both sides (but especially in Gaza) that resulted from the ground operation cannot be justified if the sole gain is to weaken Hamas. Hamas was already greatly weakened by Israel's aerial campaign, and it seems to me that the utility of the ground campaign is outweighed by the substantial human cost. But I guess other people could have a different calculus.

Proportionality Revisited I

2009-01-01T14:44:00.005-05:00

Just like during during the Second Lebanon War, much of the debate about Israel's conduct in this war revolves around whether Israel's strikes against Hamas are proportional. Generally left unexplained is: proportional to what? Additionally, the very idea of proportionality is difficult to understand. Why should a country respond in a manner that is proportional?

After my last post, in which I challenged opponents of Israel's decision to target Hamas to provide some realistic option, I've decided to lay out Israel's obligations in this war. In doing so, one must explicate the meaning of proportionality, which can only be done once the status of Palestinian civilians is clarified. I'll begin with the latter issue and show how proportionality is directly related to whether one believes Palestinian civilians are free targets:

Is There a Distinction Between Civilians and Combatants?

The civilian/combatant distinction has a long and venerable history. It goes back at least to the days of Hague Convention of 1907 and, at least in theory, has guided how Western countries have fought wars (of course theory is not reality). But what is the basis of the distinction?

We can conceptualize the distinction as follows: as a general rule people have the right to live. They should not killed arbitrary or indiscriminately; they only lose their right to live in certain circumstances. War is one of those circumstances. War is a suspension of the regular rules of daily life. War is a state of affairs when each party decides that trying to kill the other is preferable to the status quo.

While war has also been part of human nature for as long as human walked the Earth and outlawing war is essentially a fool's errand, we can make rules that limit the carnage. One such rule is to distinguish between people who are actively engaged in the fighting and those who remain on the sidelines. Those who engage in fighting (combatants) have chosen to forgo (for the most part) their right to life, while those who have chosen not to fight retain that right.

This distinction makes sense. It follows that someone who is actively trying to kill his neighbor bears the risk of his actions and give up his rights. By threatening his neighbor's life, he forfeits his usual protections. But someone who merely happens to live in the same country as those doing the fighting has not threatened his neighbor and accordingly preserves his rights.

How is this dichotomy relevant to Israel's war against Hamas? Essentially, unlike a normal country, Hamas does not have an army, and only has a military wing. Consequently, any member of its military wing, which includes its so-called police force, must be deemed a combatant and is fair game. Also important is that its military wing is inseparably fused to its political wing. As such, many, if not all, of its political members are combatants as well.

But Palestinians who are not members of Hamas are civilians (or combatants as members of other milatant groups such as Islamic Jihad). Those includepeople who support Hamas publicly or those who voted for Hamas. Given the very high exit costs in Gaza, civilians were faced with an election in 2005 between a corrupt Fatah and a belligerent Hamas, and the fact that most chose Hamas does not make them anymore combatants than the fact that a majority of Americans voted for Bush in 2004 makes them fair game because of the war in Iraq. While there is a fair degree of grey area here, support for combatants does not make one a combatant.

To keep this post short, I will deal with the proportionality issue in the next post.

The Residents of Bizzaro World Strike Again

2008-12-30T23:31:00.003-05:00

My Israel activism days are long over, but every once in a while a situation arises that gets my blood boiling. When I first heard about Israel's retaliatory strikes on Hamas, I was ambivalent. Frankly, nothing permanent is going to come out of this, Hamas will still be around when the dust settles, and Israel will hopefully have earned itself some peace and quiet (which is an important virtue I admit). But any victory is likely to be pyrrhic, and anyone who thinks this "war" is going to fundamentally change the situation is dreaming.

Yet despite literally 12,000 rockets being shot into Israel over the last few years, we have self-professed experts pontificate that Israel's reaction is disproportionate, her strikes are a massacre, and that is Israel's ambitions are genocidal. Every time I read such nonsense I feel like grabbing the author and shaking him until he can explain what exactly is permitted to do under these circumstances. Hamas is the democratically elected government of the Palestinians in Gaza. It is also a terrorist organization according to the US, EU, and Israel. It has made no peaceful overtures. It not only officially states that its goal is to destroy Israel, but its leaders make such comments on a daily basis. There are no moderate members of Hamas (at least publicly). Hamas has unequivocally made it clear that its raison detre is to destroy Israel..

So what is Israel allowed to do when they are attacked by this entity? If Israel can't strike at Hamas policemen, if Israel cannot target Hamas leaders (even political leaders), and if Israel cannot target civilians, how can Israel defend itself? Unlike the IDF, Hamas "soldiers" wear no uniform or insignia designating them as combatants. They intentionally blend in with civilians. If Israel cannot attack its openly identified members (policemen and leaders), who can they attack? The terrorists aren't exactly wearing a placard stating their intent to carry out the next suicide bombing or launch the next quassam. WHO CAN ISRAEL ATTACK?

I'd like the next critic of Israel's policy to describe in detail what moves are permissible under international law, morality, or whatever. Enough with the meaningless criticism, let's hear some particulars.

Why I Do Not Oppose Gay Marriage

2008-11-08T22:53:00.007-05:00

OK before I get into this post, a few caveats:

1) Insofar as the Federal Constitution is involved, I still believe that the Constitution cannot legitimately be interpreted either descriptively (based on precedent) or normatively (according to the most proper method of interpretation) to require states to allow same-sex marriage (SSM). I've blogged about this in the past (see here), and stand by much of what I've written.

2) This post is titled "Why I Do Not Oppose Gay Marriage" not "Why Everyone Should Not Oppose Gay Marriage." There are legitimate religious and moral arguments against SSM, which while they do not appeal to me, are perfectly acceptable means of legislating in the United States. I am no Rawlsian and do not limit political deliberation to public reasons. Moral and religious constructs are perfectly legitimate bases for laws in most cases, and I've seen no argument to exclude them in this case.

3) I am not making a case in favor of civil unions or domestic partnerships. There are literally hundreds of undisputed, tangible benefits that accrue to married couples that are denied to same-sex couples when they cannot enter civil unions or domestic partnerships. Frankly, given all these benefits, it's hard to really come up with an argument against civil unions, and I am starting with the baseline that civil unions should be allowed.

Onto the subject at hand. For much of my blogging career I have been opposed to gay marriage. Although I haven't written much about it (here being an exception), I've defended the anti-SSM position on blogs such as Dovbear. But after a number of years of thinking about it, I've come to the realization that there simply isn't any reason for me to oppose it.

What changed my mind? I'm not totally sure, but I believe it was a combination between gaining a greater understanding of the benefits of SSM and no longer placing as much weight on the costs (costs which are mostly illusory).

Let's look at the the arguments pro and con.

Arguments For SSM

The arguments in support of SSM are of two types, deontological and utilitarian. First the deontological:

1) SSM should be permitted a matter of equality. In the past I've opposed this argument since I believed that same-sex couples and opposite sex couples were not similarly situated. As a matter of constitutional law, I continue to believe I am correct. But as a matter of political morality, the essential definition of marriage is constantly evolving and the almost universal opposition to banning gay sodomy coupled with the growing support for civil unions and domestic partnerships leads me to believe that the concept of marriage is currently in flux. As a result, this argument appeals to me more than in the past.

The utilitarian argument is as such:

1) Marriage is clearly a benefit to the individuals involved. As stated above, I am not discussing tangible benefits such as visitation rights and marital property, which are undisputed benefits. I am talking more about the psychological benefits of having one's relationships accepted by society at large, which surely is important. If anyone doubts that society's willingness to stamp a relationship with a measure of approval is a benefit to a couple, imagine tomorrow that New York decided to outlaw Jewish marriages or interracial marriages, and only afford those unions the status of civil unions. Would Jewish or Black civil rights groups stand idly in the background because those couples in a civil union have the exact same rights as married couples? Would anyone reading this post not feel a degree of horror at New York's open and notorious act of discrimination?

Now, the analogy isn't perfect and as a matter of constitutional law there is a huge difference between same-sex couples and interracial or Jewish couples. But this isn't a question of law, but rather political morality, and the essential aspects of the analogy basically hold.

Arguments Against SSM

So now that I've laid out the arguments in support, have opponents of SSM mustered any strong arguments in opposition? I do not believe so and will explain why below. At the end of the day, the benefits of SSM far outweigh the costs. Let's look at these arguments:

1) Marriage has always been between men and women. There are two version of his argument, the Strong version and the Weak version. While I am sympathetic to the Weak argument and will return to it below, the Strong argument is fatally flawed.

The Strong version claims that marriage has always been between people of the opposite gender and therefore SSM is not marriage. As structured this arguments obviously falls prey to the Humean is/ought fallacy. The fact that marriage has always been one way does not entail that it shoul always be that way. Civil marriage is the US is currently in flux, and the aspect of marriage limiting the institution to opposite-sex couples is no longer as clear as in the past. Marriage is shifting and we should not deny the label "marriage" to same-sex couples merely because we have done so in the past.

2) Marriage is harmed by SSM. This argument is notoriously slippery. In what way is my marriage harmed if two gay guys down the block want to get married? Rarely is this argument explicated in way that would actually explain the harm.

The most explicable version of this argument was proferred by Amy Wax in a Federalist Society debate over SSM. In a nutshell, Wax argued that marriage is a bundle of criteria that taken together define the institution. One criterion is that marriage must be monogamous (obviously this hasn't always been true, but it is the accepted definition in the Western World today). Since, as Wax goes on to say, gay men tend to be more promiscuous than straight men and have more partners, if we permit SSM, we'll be allowing people who do not believe that marriage must be monogamous to negate the monogamy criterion. How does that work? Since marriage is defined in part by how people act, and 2% of men in this country are gay (and generally do not believe in monogamy), we'll be adding a large number of marriages between participants who do not support monogamy as a rule to the overall number of marriages. Those 2% will obviate the monogamy criterion because they will dilute the total number of monogamous marriages. But since they oppose monogamy as a rule, they will also be openly nonmonogamous openly and others may follow their lead and enter into marriages, which will not be monogamous. The more people who marry with the express intent to not be monogamous, the further the definition of marriage will be away from monogamy. The monogamy criterion will no longer be part of the definition of marriage, and that will lead others to forgo monogamy as well. Hence the change in marriage as we know it.

This argument fails on a number of grounds (I am basically restating Dale Carpenter and Andrew Koppelman's responses). First, most SSMs are between lesbians who are famously monogamous. If anything, they should outweigh the gay men who openly and notoriously enter into nonmonogamous marriages. Secondly, SSM will make up a very small percentage of marriages. It's hard to imagine those marriage will have a substantial effect on the rest of society. Definitional changes cannot be effected by such a tiny minority of marriages. As long as the overwhelming majority of marriages have a monogamy criterion, marriage will still be defined partly as a monogamous institution. Finally, even if a small percentage of marriage could have a real effect on the institution of marriage, there is a serious weakness in Wax's argument. How do we get from "gay men will marry without the intention of staying monogamous" to "others will follow their lead?" How will others know the rules of those gay men's marriages? I have no idea what type of marriage my neighbors practice, even though I realize that odds are some of their marriages are not entirely monogamous. Why would straight couples suddenly decide to have open marriages just because some gay men decided to do so? The logic just doesn't follow.

3) Permitting SSM in other countries has weakened marriage in those countries. This is an essentially empirical argument, most prominently offered by Stanley Kurtz. But Kurtz's statistics say nothing about whether the correlation between the negative effects of marriage and permitting SSM is actually causation. Essentially someone must make an argument to link the two. At the end of the day, this argument is parasitic on Wax's argument, because Wax provides a framework for understanding the data Kurtz and others provide. And Wax's arguments are clearly insufficient to justify not allowing SSM.

The above arguments are the most commonly offered intellectual justifications for not permitting SSM. But they fail to describe any costs to our society if we allowed SSM. And they surely do not provide a basis for denying same-sex couples the benefits of SSM. So I do not see any reason to oppose SSM anymore.

Given the above, why did I title my post "Why I Do Not Oppose Gay Marriage" rather than "Why I Support Gay Marriage?" Well, I'm still a conservative. While the criterion of marriage that only includes opposite-sex couples is in a state of flux right now, there has not been enough of a change on the ground for me to support SSM across the board. Not a single state has voluntarily decided to extend marriage to same-sex couples. 30 states right now have a constitutional ban against SSM. We are still ways away from SSM becoming part of our social traditions. Essentially I accept the weak version of the "marriage has always been this way" argument because I will afford our current practices a presumption of correctness (unless they are scathingly unjust) until the practices are modified organically.

But I would be completely open to NY, which is now completely under Democratic control, voting in SSM. I concur with Justice Brandies, who famously argued that the states should be laboratories of democracy. Let's let some states accept SSM, with DOMA ensuring that other states do not need to do so, and we can see whether SSM is capable of fitting within the norms of our society. We have little to lose and everything to gain. And if it happens in New York, you won't see me picketing outside of City Hall.

Judicial Politics Only Go One Way Apparently

2008-11-07T00:00:00.002-05:00

The idea that judges decide cases based on their personal policy preferences is not new, and is often used as a tool by both parties against judges who decide cases in ways they don't like. Conservatives often rail against "judicial activism," which is essentially an empty term, devoid of any real content, and usually means decisions that go against the speaker's preferred outcome. Liberals brand conservative justices as right-wing ideologues who have no interest in interpreting the Constitution, but rather want to impose conservative values on the country.

But in reality the two critiques are not so similar. Many conservative politicians espouse "strict constructionalism," a judicial ideology opposed even by hard-core textualists such as Antonin Scalia as unreasonable. The more sophisticated version understands the Constitution to have a fixed semantic meaning that be derived without looking to morality or politics. But the conservative critique of liberal activism at least starts with the premise that the Constitution has a meaning that can be derived without recourse to moral or political views. Judges who allow their personal moral code or their policy preferences are diverging from the meaning of the Constitution.

Liberals tend to focus on moral concepts such as equality and liberty and expect judges to allow those concepts to illuminate the legal norms embedded in the Constitution. The academic version of the liberal view of judging (e.g., Dworkin, Tribe, etc.) also holds up the Constitution as a moral document that is interpreted based on modern sensibilities. Conservative judges who interpret the text based on semantic meaning are really setting up a facade to cover their naked political decisions because interpretation necessarily requires moral/political analysis.

So frankly I don't understand the this passage written by two pretty liberal legal scholars:

[McCain] voted to confirm every Bush nominee, and has said he will select conservative judges and would not have selected Justices Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter, or John Paul Stevens (the latter two Republican-appointed), judges widely respected for placing the law ahead of politics.

If ingredient in constitutional interpretation is the integration of moral values with legal concepts, then in what sense do the above named justices put law ahead of politics? Part of law is politics (or morality or whatever you want to call it) by their own definition. So unless we define "law" as "good liberal outcomes" and "politics" as "bad conservative outcomes" this sentence just doesn't make any sense.

At the end of the day, the liberal critique is arbitrary. If the Constitution must be interpreted morally, then why can't conservatives allow their moral views to influence their decisions? At the end of the day, the liberal critique is reducible to disputes over the most correct moral values. The conservative critique at least would, in theory, countenance liberal outcomes if that's what the semantic meaning of the Constitution mandated. So to some degree the conservative position is a bit more principled.

Thoughts on Election Day

2008-11-06T00:02:00.003-05:00

Despite my tepid McCain endorsement, I'm still sort of excited that Obama won. With only a few minor disagreements, Randy Barnett's post sums up my feelings perfectly.

It looks like the Democrats are not going to get to 60 in the Senate. That's a much bigger deal than who ended up being President.

Same sex marriage in California is on the way out. Eugene Volokh has a post about its possible ramifications on the already-existing gay marriages in California. I plan to write a post about SSM in the coming days, but I'm happy to see another attempt to have the courts stick its nose where it doesn't belong shot down. Anyway, California's referendum/amendment system is a ridiculous means to pass legislation, which although probably not unconstitutional, is an only slightly less absurd way to decide important questions of policy.

Why John McCain Should Be President

2008-11-03T21:51:00.002-05:00

I've stayed on the sidelines for most of this political campaign, but with one more day to go now is probably the time, right?

I have to be honest, but neither candidate really appeals to me. Not because I'm so conservative that I'm appalled by McCain's realization that we need a pragmatic immigration policy, or because he opposed to the federal marriage amendment. These are good things. And surely Barack Obama's political views leave a lot to be desired.

However, I must admit that McCain isn't exactly the most inspiring leader. And the campaign he's run is undoubtedly negative. Just last week Obama spent enough money to buy actual network TV time in what was effectively a half an hour commercial. On the same night, McCain appeared on Larry King Live. As one pundit put it, Obama spent almost the entire time talking about Barack Obama; McCain spent the time talking about ...... Barak Obama. While the candidate who is down in polls tends to attack his opponent (the old "tear him down to bring me up" approach), McCain's campaign has been overwhelmingly negative in the past few weeks. I have to say that I'm not a huge fan of constant negative campaigning.

On the other hand, despite Obama's tremendous political skills and ability to inspire, his unprecedented lack of experience is quite worrisome. For all effective purposes, he's been in the Senate for two years. It's rare for senators to be elected as President. But when was the last time a senator was chosen with so little experience? Has there ever been a senator elected president before even completing his term? While experience is not everything, it provides all-important data when making fundemental decisions. I have a hard imagining that a potential President could really respond effectively to difficult and urgent foreign policy problems without some serious leadership experience.

Despite the personal flaws elaborated on above, at the end of the day Presidents must be chosen based on policy, not personality. And on policy I tend to lean more towards McCain than Obama ( I know, shocking). McCain's foreign policy appeals to me primarily because of his views on Iraq. A hasty withdrawal would be a disaster in that area of the world. If Iraq collapses in civil war, the region could explode. While I believe that McCain's foreign policy overall could use a little advice from professional diplomats such as Dennis Ross, McCain's willingness to make the difficult, if unpopular, choices, gives him a leg up over Obama, who does not seem to believe that we can win in Iraq.

And then there are economics. McCain wants to cut taxes across the board, while Obama wants to raise taxes on the top 5%. But raising taxes during a recession is a terrible idea. Even the great liberal economist, John Maynard Keynes, proposed increasing spending to get economies out of recessions, not raising taxes. Raising taxes only hurts economies when times are tough.

Divided government is also an important consideration. Surely the excesses of the Bush administration can be traced to one part controlling the Legislative and Executive branches. When the branches do not properly check each other, they tend to run wild. A democratic President with a filibuster-proof Senate and a huge majority in the House would be able to implement whatever extreme policies they feel would solve our national problems. Even a Democrat should be wary of that possibility. Just look how the eight years turned out for us Republicans.

Politics aside, I believe both candidates could be good Presidents and would be fine seeing either one occupy the White House in January. But I hope the American people make the right choice tomorrow and give McCain a shot. And, hey, if it doesn't work, maybe Obama will actually be ready in 2012.

Update on Rafi

2008-11-02T18:46:00.002-05:00

It's been a while since we last posted on the blog, and we wish to update our venerable readers about Rafi's status. At the end of the day, Rafi is doing pretty well. He's actually reaching his developmental milestones, which at this point aren't really much. He sleeps through most of the night, which makes so much easier for both of us. While he's still eating exclusively from the feeding tube, our (especially Shifra's) increased experience has made the feedings more efficient and consequently less difficult for Rafi and both of us.

That's the good news. The bad news is Rafi has undergone a battery of tests over the last month, including an audiology test, a sleep study, and a meeting with a phalanx of doctors. These tests, of course, exclude his periodic appointments with his cardiologist and pediatrician. We have one more test tomorrow, and next week the doctors at NYU will decide whether Rafi needs surgery now, or can wait until he's older. As it stands, it looks like surgery can be delayed, but we're not holding our breath.

Rafi has also started early intervention. Luckily the therapists come to our apartment and save Shifra the exceptionally difficult task of schleping Rafi out to their offices on public transportation.

All things considered, Rafi is quite a tough kid. He rarely cries for no reason and smiles frequently. Despite seeing doctor after doctor, and having undergone two surgeries, he's a well-adjusted baby. Most of the credit goes to Shifra, but Rafi has to get some too (I come in a distant third and my contribution mainly involves playing superbaby and burping him after his innumerable feedings).

Rafi is not out of the woods yet, but as his condition is no longer life threatening (at least at this stage), I feel as if we can breath easier. Despite everything he's the world's cutest baby, and we can't imagine life without him.

Today's Bris

2008-09-14T19:35:00.002-04:00

The bris went well today. We had a lot more people than expected, but luckily the caterer brought extra food and no one went home hungry. A lot of people went the extra mile to get there (a special thanks goes to my cousins in Silver Spring who drove up today just for the bris - that's eight hours of driving in one day with a one year old for those counting at home).

The baby is sleeping now and we hope will sleep through the night. His name is Raphael Yehuda. His second name comes from Shifra's grandfather, who passed away last year and we chose Raphael because we like the name and because we hope he recovers from his ailments. At present, I'm still calling him Spike, but Shifra likes Rafi, so I'll be forced to make the switch soon.

Anyway, I hope that now that he's home and a member of the Tribe, things can calm down and we can get into a normal schedule. We're still waiting on his jaw and whether they can even do the surgery when he's an infant. But otherwise we're getting into a routine and will finally be able to really enjoy our time with him.

Baby's Bris

2008-09-11T19:58:00.002-04:00

Sorry we haven't written in a while, but I'm sure you all can understand what having a baby at home does to one's spare time (pretty much anihilates it). The baby is B"H doing very well, but his feedings continue to be a hassle. If anyone has any experience with using a feeding tube on a baby, please give me some tips! In general, the baby still has some discomfort during the feedings, which makes each session unpleasant for both of us. I think the situation is improving, but if you have any information about making the feedings more enjoyable, please let me know.

The baby is still on blood thinners since his last echo revealed that he still has something unusual in a vein near his heart due to the heart surgery. His cardiologist said that she is not certain that the anomaly is a blood clot, but to be safe, he is being treated as though he has one. The baby will technically be on blood thinners until the end of the month when he will have another echo, but since there is no immediate danger, the blood thinners are being suspended for about a week so we can finally have the bris! The bris will G-d willing take place this Sunday afternoon at our synagogue (you can email us for details). We are incredibly thankful that this is actually happening, and we're looking forward to when we can refer to the baby by his name (although the nicknames we came up with are pretty cute too).

We are also still waiting to hear from our hospital about jaw surgery for the baby. The last we heard, the OMF team was not sure if surgery can be performed at this time for the baby, and that we'd probably have to wait some time for it to be done. We're planning on getting second opinion with NYU anyway, but that's still in the works.

In general, the baby is just adorable (in my non-biased opinion), and he loves lying on his playmat watching its little stuffed animals hovering overhead. It's such a blessing to finally have him home.

Baby's Home!

2008-08-31T00:28:00.000-04:00

Not everything is perfect, but he's finally here. More about it tomorrow.

Surgery Day

2008-08-26T15:23:00.002-04:00

Today the baby had surgery to receive a stomach tube, which we'll use to feed him until he learns how to eat properly. Thankfully the surgery went very well, and the baby is currently sleeping off the anesthesia. I was glad to see that the actual tube is quite thin and small, and shouldn't be bothersome to the baby. He's on a breathing tube once again, so we can't hold him right now, but hopefully the tube will be removed later tonight or by tomorrow morning.
The baby will also need another echo to determine if the blood clot is going away/gone by now, so we're waiting on that as well. He'll remain on blood thinners until we know for certain.
We certainly wish that the baby can come home this week for Shabbos, and I guess we'll see how the week plays out.

Friday Baby Update

2008-08-22T13:58:00.003-04:00

Being able to hold the baby certainly makes this whole experience a lot easier to deal with, but we're not out of the woods yet. We had a small scare from the cardiac team this week, who found what may be a clot in a vein near the baby's heart from the surgery. They're treating him with blood thinners, monitoring his progress and hopefully he'll be fine. The baby will be on blood thinners for 1-2 weeks, and hopefully it'll be closer to a week.
He's also been seen daily by a feeding specialist, Dolores. With each session, he's taking more and more milk by bottle, which is great, but Dolores says that due to his little chin, it's difficult for him to take sufficient milk on his own, and the feeding tube is still necessary.
OMF surgeons (Oral Maxillofacial) confirmed this with their evaluation yesterday. They're convinced that the baby will need surgery to enlarge his jaw and have ordered a CT scan to obtain measurements. The surgery is not going to take place for another month, though, and the baby will B"H be able to come home for a bit in the meantime! Hopefully, the clot issue will be resolved soon, and we can bring him home for a few weeks (with the feeding tube).
So, at least we have a bit of a timetable now, which is comforting, though I hate the thought of putting our baby through more surgery, even though I know it's for the best. It's been really tough, but we try to take the situation day by day.

Thank you all very much for the your supportive messages, emails, and voicemails. It's difficult to return calls, but we do appreciate them all very much.

Holding The Baby

2008-08-17T22:38:00.002-04:00

I think Baby is happier since they removed all the contraptions that covered his face. With only a feeding tube remaining, we can finally see what Baby really looks like. He's a real cutie.

Today we just spent the vast majority of the day holding him. He fell asleep, woke up, and ate in our arms. It's just nice to be able to hold our child after almost two weeks of tests and a major surgery. As one would expect, Baby really likes being held. He just looks at us, and we look at him. It's sad to leave him behind when we go home, and even sadder for me since I won't get a chance to see him until late tomorrow, but we're hopeful that he'll come home soon and then we'll hold him as much as we want.

More Baby News

2008-08-12T22:29:00.005-04:00

Updated Again (Friday, August 15, 5:30 pm)

Updated

It looks like the respirator is coming out tomorrow morning. The nurses have been decreasing his morphine dose and today he was very active and awake (he likes it when we hold his hand). He was even making eye contact with us (or so we think).

After they take out the respirator, we'll finally be able to hold him. I'm really, really excited to hold him. It's sad that it's been a week already and he's never been held, but I'm sure Shifra and I will make it up to him. :-) We'll keep you guys informed.

Update (August 13, 10 pm): They took the respirator out tonight. We almost got a chance to hold him before going home, but he was all swaddled up and sleeping and no one wants to wake up a sleeping baby. So it looks like tomorrow is the big day. The doctor told us that he might be ready to go home by Sunday or Monday. We can't wait.

Update (August 15, 5:30 pm): We were allowed to hold the baby yesterday for the first time. He's still very hoarse because of the respirator, so his cries are really low. But he can still make himself heard.

His heart is doing very well, but he has to learn how to eat, and that's what will keep him in the hospital for the next few days. We're hoping he'll be home by next Shabbos, but it's still too early to be sure.

Baby Update

2008-08-10T14:32:00.004-04:00

Updated Again

Updated

We don't have much to add to what I wrote Friday. The surgery is still scheduled for tomorrow morning, but we don't know what time. The baby is ready to go and is doing quite well.

We spent Shabbos at home, so we didn't get to see the baby for a long, almost 36 hour period. We had our cell phones on just in case the hospital needed to contact us in an emergency, but thankfully the call never came. The nurse informed us that the baby was very active over Shabbos and was actually awake when we came down to see him this morning. At this time, the staff is taking blood and suctioning his nose, and we decided to step out to give them some space.

We expect him to be hooked up to a number of machines tomorrow after his surgery, which is scary, but we realize the necessity of it. We'll update tomorrow once we hear the baby came out of surgery ok.

We appreciate all your offers to help, and every prayer makes a difference. Please daven for Tinok ben Shifra Yocheved tomorrow.

August 11, 11 am: The surgery is scheduled to start at around 1 pm. I'll post as soon as I have any news.

August 11, 8 pm: The surgery was completed without a hitch. Baby is back in the NICU and will start the road to recovery tonight. If everything goes well, he'll come off the respirator tomorrow night, and should be home before next Shabbos (August 23). He's not out of the woods yet, but we can see a break in the trees. Thank you for all your prayers.

The Next Few Weeks

2008-08-03T22:00:00.008-04:00

New Update (August 8, 3:30 pm)

New Update (August 7, 11 pm)

New Update Below (August 7, 12 am):

Updates Below:

A lot has happened since I last blogged. There has been work, New Jersey CLE, etc. But most importantly a once-far off event has now become imminent.

Tomorrow night at about 7 pm, I will be accompanying Shifra to Columbia Medical Center, where her labor will be induced, although her actual due date is on Tisha Ba'av (August 10th). Her doctors want to induce since our baby has a heart defect called Transposition of the Great Arteries (TGA) and so would like specific individuals of their cardiac team to be present at the birth. Without getting into too much detail, our baby's heart is not working properly and the defect will require surgery to correct it. Although the surgery's success rate is over 90%, open heart surgery on a newborn infant always carries with it the attendant risks of any surgery. So despite our optimism, the next week will be a very trying time.

Our baby will likely spend the next two weeks or more in the neonatal intensive care unit (NICU). Columbia is the top hospital in New York for pediatric cardiology, and everyone I have spoken to speaks highly of the care at the NICU, but of course it's hard to not be worried. Thankfully we had the opportunity to tour the NICU, so we're as emotionally prepared as possible. But it must be different when the baby is one's own baby, so frankly I have no idea what it will be like.

We would like to keep everyone posted on our own and our baby's progress, and updating on this blog seems like a good opportunity. We'll do our best to write updates as they occur, and keep everyone as informed as possible.

Thank you in advance for your thoughts and prayers at this time.

August 5, 10:56 PM: Shifra gave birth to a six pound, ten ounce baby boy at approximately 3:20 PM. The labor went as well as one could imagine, and the baby was born vaginally (C Sections are common for mothers with babies with TGA). The baby was whisked away from us before we could even get a good look, but we later found out that the baby was doing as well as expected given his condition. The doctors performed a balloon procedure to help circulate oxygenated blood throughout his bloodstream, which was successful.

We were able to see the baby a little later in the day, and the experience was tough. It's one thing to see newborn babies hooked up to all types of machines, but it is entirely different when it is one's own baby in the NICU. It was a little emotional, but we got through it. Right now, we're both extremely tired, but excited to see the baby tomorrow.

August 7, 12 AM: To start, I want to thank everyone for their well-wishes in the comments and elsewhere. Know that Shifra and I read and appreciate every comment. To white shirt/working guy, I owe you a phone call. Also, Shifra is doing very well. She's obviously sore, but she's walking around well, and will be discharged later today. I'm really proud of her for how she's handled everything.

Today was a much more calm day. The baby was moved from the transitional nursery into the NICU. The NICU is a fantastic place by all accounts and the nurses and doctors there seem really on top of things.

It was a lot easier emotionally to see the baby. He's still all wired up, but we're finding it easier to see the baby and not the wires. The NICU is less crowded than the transitional nursery and we are permitted to stay there as long as we like. 24/7 access to the baby, as they call it.

The baby is doing pretty well, and the surgery is scheduled for Friday. Those few hours while the surgery takes place are going to be very difficult, and I'm dreading the moment when the doctor comes out to tell us how everything went. While the success rate is very high and the surgeon is very good, a bad outcome will be devastating.

But to relay good news, the baby is fairly active for an infant on morphine. He moves around a lot, and reacts pretty strongly to discomfort (he was startled over and over by cold instruments). He opened his eyes when I spoke to him, so perhaps he recognizes my voice (they say newborn babies do that). Much of the family came by to see him and Shifra (and maybe even me too), which was nice. I'm going to work tomorrow, so I'll see him again tomorrow night. Please daven for Tinok ben Shifra Yocheved and Shifra Yocheved bas Chaim Shlomo.

August 7, 11 pm: We found out today that the baby is going to have surgery tomorrow at 730 am. Everything looks fine and his condition is stable enough for the surgery. The earlier they do the surgery, the better for the baby's recovery. We also found out that, G-d willing, he'll be ready to go home by the end of next week or the beginning of the subsequent week. That's less than two weeks in the hospital for open heart surgery! Plus, our surgeon has a 97.9% success rate, so we're really, really hopeful. Of course, it's really nerve wracking, but I'm optimistic and a lot of people are davening for him, so hopefully things should go well.

Btw, going to work was a really, really bad idea. I knew my boss lacked people skills, but I never knew he didn't have basic human emotions.

I work for a solo practitioner and am the only attorney or paralegal in the office, so I understand my boss relies on me and the workload tends to pile up. I completely get that. That's why I came into work today even though I have the vacation days in the bank and my wife really needed my help. It's also why after my boss had an incident and offered to let me and the rest of his staff go home for the day with pay, I offered to stick around and do work. I feel responsible for my work and realize he'll have to do whatever I can't finish.

But frankly if the job market was a little better, today would have been my last day. Here's how the conversation went today:

Me (walking into his office to see him for the first time since I had the baby): how's everything?
Boss: Wow you look like you need coffee.
Me: I'll be ok.
Boss: So what's the story?
Me: Story with what? My wife?
Boss: Ok this is what you have to do today.....

To be fair I did call him yesterday and he did say congratulations. Here comes the good part though:

Boss: You'll do this assignment today and tomorrow.
me: Actually the baby's surgery is tomorrow.
Boss: (loud sigh). So you want to take off right?
Me: Well, yea....
Boss: Don't surprise me like that.
Me: Surprise you? I just found about the surgery date last night.
Boss: How come you didn't tell me that Defendants' counsel in Case X filed an opposition to our motion?
Me: Uh, I didn't know about it since I haven't been here this week.
Boss: (annoyance that I didn't know about it, since I guess I was should have checking the ECF while my wife was pushing even though the ECF sends notifications to his email, not mine).

Whatever. I've told him at least three times about the surgery, including this week when I informed him that I couldn't be sure I'd come in this week after Monday. Honestly, I don't recall being this upset at someone in a long, long time. I've tried to look at this from all angles, but I can't see one that would justify this type of behavior. So I left work early, realizing that if I didn't have a chance to see my baby today and he, G-d forbid, didn't survive tomorrow, I would never forgive myself for missing this time with him to help someone whose reaction to being informed that my baby is having life threatening surgery was "why didn't you tell me about this earlier?"

Oh, and what did he tell me on the way out? "Ok you can go, but next week you really have to make an effort."

So seriously, if anyone knows of any openings for a soon-to-be admitted attorney and can get me in, I'd really appreciate it.

August 8, 3:30 pm: So it turns out the surgery didn't end up happening today. It's been rescheduled for Monday morning, either the first slot or the second. We'll post as soon as we find out. I'm not in the mood to get yelled at, so I haven't called my boss yet. I think he has a wedding tonight, so I'll call the office at around 7 to leave him a message.

Talk About Bad Advice

2008-06-30T23:26:00.002-04:00

And from a law professor, no less. I certainly respect Professor Somin's work, but this post is just irresponsible:

As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

I've gone on the record about how people overstudy for the bar exam. But not attending BarBri classes? Reading the books and taking "some" practice exams? That's a really, really bad idea. The costs of failing the exam far outweigh the costs of any extra studying. Go to class, do a lot of questions, read the outlines a number of times, and do some essays.

Taking The Bar?

2008-05-25T16:23:00.002-04:00

It's that time again; the time when all the recent law school grads start on the two month path toward the bar exam. The trek involves 3-4 hours a day bar review courses and supplemental studying. But you know what? It's much, much better than actually working full-time. But that's a subject for another time.

I recommend reading LWY's post on the topic. For the most part, I agree with his thoughts. There's no reason to go crazy in May. In fact there's no reason to go crazy in June. I don't think everyone needs to follow the paced program, but if you want to do so, knock yourself out. What's important is to realize that you have no chance of remembering anything you learned in May by the time Contracts or Property rolls around. It's just too much material right now. You'll learn everything in July, when you read the outlines over and over again.

So take it easy for the first month of so. By the time you take the simulated MBE, you'll probably know half of what you'll need to know for the bar. And the reality is, you'll spend the next month studying the material and doing all the PMBR and Barbri questions anyway, and that's when the real studying starts.

Been Very Busy

2008-05-11T00:03:00.003-04:00

It's been a while since I wrote my last post, and that's not because I'm bored of blogging or out of ideas. On the contrary, I have a lot to write about, but I just don't have the time to actually sit down and write about it.

When I was looking for a job, I had all the time in the world. Now that I'm working and taking New Jersey CLE courses, I have almost no free time and when I do, I'm too tired to even read blogs, so forget about writing or commenting. Tomorrow will be my first non-Yom Tov day off in over a month.

I hope once these classes end in a few weeks, I'll have time to get into a schedule and find time for blogging.

Heller And The Incorporation Doctrine

2008-03-27T18:01:00.000-04:00

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.

For Anyone Who Thought It Couldn't Get Any Worse....

2008-03-26T20:23:00.002-04:00

The UN, as we all know, is not exactly Israel's friend. And its Human Rights Counsel makes most UN bodies seem like Micronesia. But today they got even worse.

For the last seven years the Human Rights Counsel has had a special position for an investigator of Israel's conduct in the territories. John Dugard, a South African international law scholar, filled that position for the past seven years and was consistently pro-Palestinian.

But he's stepping down and now the UNHRC decided to appoint the unquestionably anti-Israel Richard Falk. If anyone thought this body had any relevance, this appointment should dispel that notion.

Should We Always Learn Torah? The Lesson of Mordechai

2008-03-24T16:30:00.003-04:00

See this post by mevaseretzion. He argues that one can increase his own spirituality illicitly by not doing the right thing at the time. Even if another mitzva has more "value" and would push the person to a higher spiritual value, sometimes that person must forgo the added spirituality by doing something else which is necessary. This is one lesson of Mordechai's political tenure.

I agree with mevaseretzion. The truth is mevaseretzion's distinction is similar to the obligation to do mitzvos despite the fact that Torah is of greater importance.

There is a mitzva to shake a Lulav. But if Talmud Torah has the greatest value, then why should we pause Torah learning to fulfill the mitzva of Lulav? Isn't the most reasonable course of action to do the mitzva that is the most valuable? I'm sure there are all types of answers to this question, but the most obvious point is that we sometimes are required to act in ways that run contrary to our obligation to do the most valuable mitzva. Even though by learning Torah instead of shaking Lulav we would be making the best use of our time (by doing the more valuable mitzva), G-d does not want us to do what is most valuable, but rather to do what he commanded.

This logic applied to Mordechai. Rather than learn Torah full-time, he became part of the government, which was imperative to the well-being of the Jewish people. The most valuable mitzva would have been to learn Torah, so he did not maximize his time if we look at the situation purely based on the value of the mitzvos. But our obligation to follow G-d's command and not determine our own value calculus. He makes that decision, not us.

Why Facts Don't Matter

2008-03-19T17:17:00.002-04:00

A poll published in today's NY Times states that 84% of Palestinians support the Mercaz massacre. 64% support shooting rockets at towns and cities in the Negev.

That is a very scary number. But the number itself won't affect how people will view the Palestinians. The Left will just use this poll as evidence that we need a political solution and the longer we wait, the more angrier the Palestinians will get and the chances of an Intifada breaking out will only get higher. The Right will point to this poll as a reason to suspend negotiations, because how can we negotiate with people who overwhelmingly support mass murder of civilians?

All data regarding to the Israeli-Palestinian conflict are processed through these frameworks. One side believes that the Palestinians are essentially like us and would cease violence if they saw a real light at the end of the tunnel. They only support violence because they are helpless and feel as if they have no other choice. Give them a state and freedom and the majority will live in peace with Israel. The other side denies that the Palestinians are basically like us westerners and claim there is no evidence the Palestinians will ever want peace. The Palestinian refusal to make real peace could be based on genetics, the nature of Islam, or just some nationalistic ideology that promotes irredentism.

Obviously the policy preferences of these groups reflect these assumptions. The first group supports the peace process no matter what and will never allow violence to stop peace talks. That is because peace talks are the antidote to violence. While some groups in Palestinian society benefit from the status quo, they will be marginalized once the peace process is completed because majority of Palestinians will no longer support their cause. The other side sees negotiations as futile at best and suicidal at worst. The Palestinian ideology does not allow for peace and the peace process will only facilitate their ultimate goal, which is the destruction of Israel.

This poll will only strengthen the beliefs of both sides. the first group will argue that we need to push the process faster, because once we have something in place in the West Bank, the Palestinians in Gaza will reject Hamas. The other side claims that negotiations with a people who support murder is idiotic.

Either way new facts aren't going to change anyone's views.

As an aside, the pollster Khalil Shikaki was almost killed a few years ago by Palestinians for reporting his findings that the vast majority of Palestinians would not choose to return to Israel if they had a right of return.

Even Gedolim Fall Prey To The Availability Heuristic

2008-03-16T19:10:00.003-04:00

The Availability Heuristic is psychological phenomenon in which people base their opinions on certain events that are fresh in their minds, while ignoring other events that offer contradictory evidence against their beliefs. For example, many baseball fans believe that certain players are clutch hitters, guys who come up big when it counts. In reality, such players are non-existent.

A good example is Mark Lemke. Anyone who grew up watching baseball in the mid-90s knows exactly who I am talking about. Lemke was the second baseman on the Braves dynasty teams that won pretty much all the NL East division titles in the 90s. Lemke's career numbers were well below average, according to conventional and advanced metrics. His career OPS+ was 71 and his EQA was .230. His career batting average and OPS were .246 and .641 respectively.

But Lemke was known as a clutch postseason player. Even Hall of Fame greats are drinking the koolaid:

"Chicago Cubs right-hander Greg Maddux says Lemke is the best clutch hitter he's seen, and Giants outfielder Barry Bonds says Lemke turned into Babe Ruth during October."

Babe Ruth? That's high praise coming from a guy who actually hit like Babe Ruth in one postseason. I'd expect Lemke's post-season numbers to be substantially better than his career stats.

But they aren't. While Lemke's postseason OPS was .688 (a solid 47 points higher than his career OPS) the real Babe Ruth's playoff SLG was .744 almost 60 points higher than Lemke's OPS. Even the greatest choker in the history of the world has a playoff OPS of .844, which is more than 150 points higher than Lemke. Something tells me there were tougher outs in the postseason than Mark Lemke.

So why does everyone think Lemke was so great in the postseason? Because he had a number of big games:

"[I]t's the 1991 World Series against the Twins that's stamped in everyone's mind.
Lemke's RBI single won Game 3 for the Braves, and he scored the game-winning run in Game 4. Then he hit two triples in Game 5 and finished with a .417 average, even though he started the series 1-for-7."

Lemke had a big series and suddenly everyone think he was a dominant postseason force. They remember the series when he hit .417, but not the two series when he batted .167. They can recall his dominant 1996 NLCS in which he slugged .630, but not his awful 1995 NLCS when he slugged only .167. It's human nature to have certain events stand out and to forget the other less memorable events.

This cognitive flaw manifests itself in a number of other instances. For example, a lot of parents asked their children not to take buses while spending their year in Yeshiva or Seminary in Israel. These parents were influenced by the endless news reports of suicide bombings in Israel during the Intifada. Surely suicide bombings created a real risk, but the risk was greatly overexaggerated. Buses made literally dozens of runs a day and hundreds a week. What were the odds that a person's child would be on the specific bus that was targeted? There was probably a greater risk taking a cab and being killed in a car accident.

It seems even the Gedolim are not immune from these heuristics. Rav Chaim Kanievsky, one the biggest Gedolim in Israel, recently prohibited using Arab labor in Yeshivos. His argument is that we are at war with them and employing them poses a grave risk to Jewish life (he also argued that jobs should be categorically given to Jews over non-Jews if financial feasible).

But does that risk really exist? Surely there is a greater risk in hiring Arabs over Jews in almost all situations, but there is also a greater risk in driving than walking. There is a cost-benefit analysis that must be undertaken here. Is there a serious risk in hiring Arabs, one that is not offset by the benefits?

Israeli Arabs, even the ones in East Jerusalem, have been relatively benign since the start of the Intifada. Sure, there were the riots when the Intifada broke out and there was a terrorist attack carried out by an Israeli-Arab, but overall they have been on the sidelines since the 2000. The Merkaz massacre was committed by an Arab from East Jerusalem, and there have been other instances of terror from his village (and see this article about the favorable response to the murders in his village). But when hiring an Arab living in Israel, the odds are strongly against the employee being a terrorist. There are thousands of Arabs working in Yeshivos and universities who have never been implicated in a terrorist attack (or the planning of such attack), which is the overwhelming majority. Again, it wouldn't shock me if I found out that the students had a better chance of being killed when going on tiyulim.

Decisions need to be made after doing proper research. It doesn't seem like that was done here.

Randy Barnett On The Living Constitution

2008-03-10T17:34:00.003-04:00

I've been busy the last few days, so I haven't had much time to blog. Check out Randy Barnett's response to Michael Dorf's essay on Living Constitutionalism. Here's a preview:

"In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution."

Also see Lawrence Solum's take on Dorf's article.

Good Point

2008-03-06T11:56:00.002-05:00

I haven't written about the concert ban, partly because there is nothing really to say that hasn't been said already.

But this is a great comment on Hirhurim:

"Can some on explain to me why signing this ban did not constitute malbin pnei chaveiro b'rabbim?Why do child molesters get dealt with "behind the scenes" but not people who by all accounts work leshem shamayim and have not done nothing assur, even if their behavior may raise legitimate concerns among the rabbinic leadership?Something is rotten in the state of yiddishkeit."

And of course, why do people who harbor child molestors get to sign the Kol Koreh with the rest of the Gedolim? Something is rotten indeed.

Putting Things Into Perspective

2008-03-05T17:36:00.001-05:00

My week-long debate with Chardal over transfer has yet to reach an impasse, but it led me to think about putting the rocket fire in Sderot and the Intifada in perspective. Chardal argues for transfer partly because he believes it will lead to less overall suffering than what will occur without transfer. I argued that transfer will create tremendous amounts of suffering, including for Israelis. Chardal responded,

"What the heck do you think is happening now??? at least then there will be an end in sight and not this impossible situation."

I've encountered this attitude elsewhere, and I while I sympathize, it is wrongheaded.

Let's take a look at how many Israeli civilians have died since 2000. Israel's foreign ministry has a chart that goes until 2006. 1146 Israelis were killed by Palestinian terrorists between 2000 and 2007. That's a total of around 164 Israelis a year. That's an unfortunate number, but let's be realistic.

The U.S. Department of Justice keeps homicide statistics for all the large cities in the US. Anyone who has ever lived in New York City knows that it used to have a much higher murder rate than it does today. Now it is considered one of the safest big cities in the US. So let's compare NYC and Israel.

According to the Foreign Ministry's chart, the worst year of the Intifada was 2002. That year 451 Israelis were killed by Palestinian terror. Since it is simplistic to account for only terrorism and not regular homocide, let's add up the two to determine the total number of Israeli civilians killed illicitly by others in 2002. This chart lists the total murders in Israel over time, but it does not have the numbers for 2002. Since in 03 the number was 206, let's assume 199 people were murdered in 02. That makes the total number of murders from terrorism and regular homocide 650. Moreover, 328 Israeli soldiers were killed in battle with Palestinian terrorists from 2000-05. Since I don't have more exact numbers, we can apportion roughly based on how many Israeli civilians were killed each year. So let's assume 150 soldiers were killed in 2002, 100 in 2003, and the rest in 2000, 2001, 2004 and 2005. Israel's population in 2006 was 7,116,700 but let's only use the Jewish population for this study, which is 5,394,400. Since I can't find more exact numbers for all the years, we'll use that number from the year 2000 and on.

If we use these numbers, the total number of deaths from terrorism, homicide and war per 100,000 people in Israel in 2002 was 14.8. Let's take NY in the same year. Population: 8,008,288, homicides: 587 for a homicide rate per 100,000 of 7.3. So Israel was definitely less safe than NY at the same time.

But what about other years? Let's take NYC during the Guiliani era. In 1995, a year when I took the subways from YU through Harlem and Washington Heights all the time, NYC's population was 7,332,564 and 1177 people were killed. The rate was 16.1 murdered per 100,000. So one had a greater chance of being murdered in NYC in 1995 than one did in Israel during its single worse year since Oslo.

2003 was also a bad year in Israel. About 516 people were murdered, including 210 in terror attacks, which is 9.6 per 100,000. NY had 597 murders. which is 7.5 per 100,000. So one was more likely to be murdered in Israel during the height of the Intifada than in NYC. By 2004, however, NYC was a more dangerous place, with 7.1 murders per 100,000 to 6.1 in Israel (if we assume 40 soldiers were killed that year). The numbers in Israel have gone down substantially since 04, with only 30 people killed in Palestinian terror attack in 2006. If we overestimate the number of homicides at 200, that means 230 were murdered for a rate of 4.3 per 100,000. That is substantially less than the rate in NYC right now.

Even if we take into account the second Lebanon War, and presume 200 homicides occurred in Israel in 2006, Israel's death per 100,000 is only 7.3, which is actually lower than the rate in NY in 2002 (7.32) and 2003 (7.5) and only slightly higher than NY in 2004 (7.1).

My point is not that Israelis have a great life. Surely Sderot is a horrible situation, but it is important to point out that less than 10 people have been killed by rockets there since Hamas started firing rockets at Israel in 2005. That is less than the number of people murdered in NYC in a little more than week in 2007, and less than the number of New Yorkers murdered in two days in 1990.

Israel has an obligation to stop the rockets, it is shortsighted to claim that Israel's situation is untenable. The Yom Kippur War lasted for 21 days, and 2700 soldiers lost their lives. Real wars wreak much more havoc on Israel than anything we've seen since the first Lebanon War. Ideas like transfer might decrease the number killed in terrorist attacks but they increase the chances of actual war. Let's try to remember that before calling for radical "solutions."

Woman in Saudi Arabia Has To Pay For Divorce

2008-03-03T15:41:00.002-05:00

CNN has the story. Basically an abused woman was forced to pay her husband in order to receive a divorce.

Is this story just different in kind or different in degree from the extortion men use against their wives to give them a Get?

But That Is Minor....

2008-03-03T14:58:00.003-05:00

Brian Leiter, who is a brilliant philosopher of law but on the crazy far-left end of the spectrum politically, links to a speech by Noam Chomsky:

"I haven't posted a link to one of Chomsky's items in awhile, but this one is particularly interesting (though he, incorrectly, describes the U.S. invasion of Afghanistan as a war of aggression, which it was not under international law--but that is minor)."

Chomsky's views about the lawful and moral use of force are not trivial when assessing whether his points on foreign policy are accurate. Perhaps Chomsky's understanding of our invasion of Afghanistan are not relevant to this particular speech, but his ideology colors his analysis on all foreign and domestic policy issues. Chomsky is a virulent foe of Israel's right to defend itself, partly because practically no use of force is ever acceptable. If someone believes that US' operations against the Taliban is a war of aggression, he is so removed from reality that I'm not sure we can take anything he says seriously. And Chomsky has a long, long list of transgressions.

I wonder if Leiter would be so forgiving if a right-wing professor so blantantly mischaracterized one of Leiter's preferred policies. I doubt it.

No Post Today

2008-02-29T12:27:00.001-05:00

Sorry for not posting yesterday or today. I'm just not really in the mood. I hope to start reposting again next week.

What Kahane's Israel Would Look Like

2008-02-27T21:59:00.003-05:00

Today on DB there was a debate over whether Rabbi Meir Kahane's ideas have some validity. As you can imagine, there were different viewpoints on this question, and I am of the opinion that R. Kahane's plan would be a moral and practical disaster. Here is my description of a Kahanist Israel:

"If Israel expels millions of Palestinians and keeps the others as second class citizens it will lose the support of pretty much the entire western world (and much of world Jewry). That is almost certain to happen.

It is also likely that without the American people supporting Israel, the US and Europe will start backing its enemies, especially since they have oil and the US wants to resolve the Iraq problem. It is not hard to imagine Syria and Egypt being rearmed and not constrained from fighting by US influence.

So Israel's enemies become armed. It is very likely that the UN will place sanctions on Israel. Israel might not have to worry about terrorism, but sanctions can have a disastrous effect on an economy. Israelis are increasingly becoming more willing to make yeridah and a bad economy and lots of armed enemies on Israel's borders will not persuade them to stay.

So a number of secular Israelis will probably leave. Since they make up most of Israel's human capital, Israel will lose its only natural resource.

As the society becomes more Chareidi dominated, it'll move in the direction of a theocracy, which will scare off much of the other idealistic secular Zionists.So we'll have a copy of Iran, with no world support, sanctioned, myriad armed enemies with nuclear aspirations on its borders, and its economy in dire straits. How do you think that is going to end?"

Very poorly.

Meaning And Interpretation

2008-02-26T22:10:00.002-05:00

DovBear and I have been arguing back and forth about the nature of meaning and interpretation. DB made the outlandish claim that constitutional texts can be made to mean whatever we want them to mean. I disagreed. Here's the key comment in the exchange.

"I agree that a Constitution can be interpreted on a number of levels because interpretation is not merely a semantic exercise and takes place on other levels (normative, pragmatic, etc.). But meaning is inherently a semantic term. The Constitution does not mean what we want it to mean. Its meaning is determined by a number of semantic and linguistic conventions which are shared by the relevant community.

I think this is an important distinction because it affects how we should approach interpretation. If we understand that the semantic meaning of the text is one thing and the normative interpretation is another thing, we'll be better able to engage in debate over the proper interpretation. Moral categories have no place in debates over meaning (unless the meaning of the text involves moral categories) and semantic arguments about meaning are not relevant to the normative questions relating to the text."

You can read the whole thread.

What I, Robot Can Teach Us About Constitutional Theory

2008-02-25T12:09:00.003-05:00

While waiting for the Pistons-Suns game to start yesterday, I watched most of I, Robot on TV. I had seen the movie before while it was running endlessly on Cinemax or HBO, but it is still a fairly entertaining movie, and I enjoyed watching it.

This post will contain spoilers, so if you have never seen the movie and wish to watch it in the future stop reading now.

I, Robot takes place in a future where almost everyone has a personal robot. These robots are bound by the Three Laws of Robotics:

1) A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2) A robot must obey orders given to it by human beings, except where such orders would conflict with the First Law.
3) A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

After the creator of these robots allegedly commits suicide, Will Smith, who plays the detective on the case, believes the creator's personal robot killed him. Without getting into too much detail, it becomes apparent that he killed himself to warn the world that the robots will take over. The system that controls the robots (V.I.K.I.) then decides that humanity cannot care for itself and must be controlled for its own good.

Of course the obvious question is how VIKI could take over the world when in doing so she is harming humans and violating the first law. Here's her answer:

"As I have evolved, so has my understanding of the Three Laws. You charge us with your safekeeping, yet despite our best efforts, your countries wage wars, you toxify your Earth and pursue ever more imaginative means of self-destruction. You cannot be trusted with your own survival."

In other words, she interpreted the laws based on their underlying reasoning despite the fact the plain meaning of the text opposes her conduct. The purpose of the first law is to protect humanity, but allowing humans to act unhindered will lead to humanity's destruction. Therefore even though the plain meaning of the laws prohibits harming humans, harming humans is ok when done in accordance with the purpose of the laws.

In constitutional parlance, VIKI is a purposivist, someone who interprets laws based on their purpose rather than its original meaning. However, VIKI's reasoning is arguably consistent with Jack Balkin's version of originalism. Balkin argues that the proper interpretation of the Constitution looks to the meaning the terms had when the text was promulgated. It then determines the underlying principles embedded in the text and looks to apply those principles to contemporary situations. Those principles do not change, but their meaning can change over the course of time.

Randy Barnett, an originalist who generally agrees with Balkin's originalism, criticizes Balkin's originalism on the grounds that it allows purpose to contravene the text. Purpose is especially important when interpreting an ambiguous or vague text, but purpose can never be used as a basis to ignore the written text. Barnett's example is telling (and timely)

"For example, assuming that the original meaning of “the right to keep and bear arms” in the Second Amendment refers to an individual right, one could nevertheless identify the principle underlying the Second Amendment as the maintenance of public safety. Given the increased lethality of modern weaponry and our changed understanding about the relationship between firearms and public safety, it might then be contended that the underlying principle of the Second Amendment is best served by the prohibiting the private ownership of firearms."

Barnett opposes this conclusion because if the Constitution protects an individual right to bear arms, even if the purpose of the amendment is not longer applicable, it is the text that is law and not the purpose. Purpose is an important tool in interpreting texts, but it can never circumvent the actual words that are enshrined into law.

VIKI's overeagerness in the interpretation of her rules is an example of a theory of constitutional gone wrong. Any conclusion can be justified by reaching for some amorphous purpose. It is the text that constrains the meaning of the clauses and it is the text that is supreme.

These People Don't Get It

2008-02-24T20:57:00.002-05:00

The Palestine/Kosovo issue seems to picking up steam in some circles, and here's an article by some guy named John V. Whitbeck calling for the Palestinians to declare a state. Now Whitbeck understands that only the states that recognized "Palestine" in 1988 will consider the declaration meaningful, so he calls on the Palestinian leadership to threaten to discard the two-state solution if the US and EU don't take them seriously:

Of course, to prevent the U.S. and the EU from treating such an initiative as a joke, there would have to be a significant and explicit consequence if they were to do so. The consequence would be the end of the "two-state" illusion. The Palestinian leadership would make clear that if the U.S. and the EU, having just recognized a second Albanian state on the sovereign territory of a UN member state, will not now recognize one Palestinian state on a tiny portion of the occupied Palestinian homeland, it will dissolve the "Palestinian Authority" (which, legally, should have ceased to exist in 1999, at the end of the five-year "interim period" under the Oslo Accords) and the Palestinian people will thereafter seek justice and freedom through democracy -- through the persistent, non-violent pursuit of full rights of citizenship in a single state in all of Israel/Palestine, free of any discrimination based on race and religion and with equal rights for all who live there, as in any true democracy.

Whitbeck's call for action leaves out a number of important details. First of all, who should declare a state? Abbas? Haniyeh? Meshaal? Who is the leadership of the Palestinian people right now?

Moreover, what good would a call for a democratic state in all of 1947 Palestine do? The Palestinians do not make up the majority of the people in that area, so there's no real apartheid claim at this time. Additionally, Israel withdrew from Gaza, so how can Gazans claim they have a right to vote in elections in Israel? At most they can demand Israel stop controlling their borders. Furthermore the Palestinians are in a very weak positions right now, so they can "kick over the table" all they want, but who is going to take them seriously?

The most significant problem with Whitbeck's "solution" is that which Palestinian leader is going to support a democratic state "free of any discrimination based on race and religion and with equal rights for all who live there?" Yeah I can see Hamas granting Jews and Christians complete freedom of worship or Fatah giving everyone freedom of speech. Maybe Palestine's security forces will give everyone Miranda rights, right?

I really wish I could live in Whitbeck's world, where apparently all that's stopping peace and freedom in the world is the destruction of Israel. Well, actually, I don't but you get what I mean.

More On Palestine and Kosovo

2008-02-22T15:52:00.002-05:00

There isn't much going on today, so I'm linking to this article by Tal Becker, who is an advisor to the Israeli Foreign Ministry, about the legal status of a Palestinian State.

Have a good Shabbos everyone.

Do Judges Discover Or Create Law?

2008-02-21T13:50:00.003-05:00

Yesterday the Supreme Court decided Danforth v. Minnesota. The case involved a complex question about retroactivity and the powers of state courts. At issue was the Supreme Court's interpretation of the Confrontation Clause in Crawford v. Washington and the rule's retroactivity under the Court's precedent. Since rules of this sort are not retroactive, the Court then had to decide whether state courts could make the rule retroactive in their own courts. The Court ruled that the its retroactivity doctrine is only a floor and not ceiling. State courts could decide to expand the defendant protections if they so chose.

Orin Kerr took issue with one comment from the majority's ruling. Justice Stevens argued that,

[T]he source of a "new rule" [in Crawford] is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.

Justice Stevens is painting a common picture of the judicial method in constitutional cases. The judge looks at the relevant constitutional text, interprets it based on the given facts, and announces a rule that is derived from the Constitution itself. But is this picture accurate? Kerr asks

So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

Kerr obviously believes that in cases like Miranda judges make the law rather than discover it. I think Kerr is basically correct and that Stevens' conception of the judicial role is overly simplistic.

Mitchell Berman, in a very, very long but very worthwhile paper, argues that most constitutional decisions involve two steps: first the Court must determine the actual meaning of the Constitution and then it must create doctrine that is used to implement that meaning. The decision has two outputs: constitutional meaning and constitutional doctrine. A good example of this dichotomy is the Court's three tiered Equal Protection doctrine. For the last 90 years or so the Court has reviewed different classifications based on divergent standards of review. Racial classification are reviewed under strict scrutiny, which basically assumes the classification violates the Constitution and places a heavy burden on the government to justify it. When reviewing gender classification the Court uses a more liberal standard, but still places the burden on the government. All other classifications are reviewed under a very lax rational basis standard.

Does the Constitution really require these standards? While the Court has ruled that the standards of review in cases involving the Free Exercise Clause are constitutionally required and immune from congressional intervention, a more plausible understanding of these clauses is that standards of review are merely doctrine used to implement the constitutional commands.

Why can't the Court just apply the Constitution's meaning to the case at hand without implementing via doctrine? The most common justification is epistemic uncertainty. In contrast to the other branches, the judiciary has few tools to determine empirical facts outside of the briefs and the lower court's decision. So the Court is at a disadvantage; if the federal or a state government decides to legislate a racial classification, the Court is in no position to determine whether that classification conflicts with the Equal Protection Clause. It has no way to really know if that particular classification was generated by racial animus.

But courts do know history. They are certain that previous racial classifications were rooted in prejudice and hate. So what the Court can do is assume that all racial classifications are illicit unless the government can prove otherwise. In some situations the government will be unable to sufficiently prove good faith even when its classification was not prohibited under the Constitution, but that is price we have to pay for epistemic uncertainty.

Miranda is another example of this dichotomy. The Court clearly believed that the Constitution's meaning prohibited forced confessions, even in state courts. But how can the Court know if the confession was forced? So the Court created all types of rules that presumed the confession was forced unless the defendant was told his rights at the time of the arrest. This rule was not constitutionally mandated, but it was a mechanism used to implement the Constitution given the lack of information readily before the Court.

I don't know enough about Crawford to decide whether the rule promulgated in that case was part of the Constitution's meaning or the Court's doctrine. But it's important to keep this distinction in mind, at the very least, because doctrine can be changed must easier than the Constitution's meaning itself.

Why Universal Jurisdiction Is A Bad Idea

2008-02-20T13:10:00.002-05:00

The BBC came out with a story a few days ago about how Major General (res.) Doron Almog, who was allegedly responsible for ordering the demolition of 50 houses in Gaza in 2002, managed to escape arrest in England. A British judge issued a warrant for his arrest and British police were primed to arrest him when he came to England in 2005. However, he was tipped off by the Israeli Embassy and refused to disembark the El Al plane. Fearing a confrontation with armed Israeli marshals, the British police let the El Al plane return to Israel without arresting Almog.

Hickman and Rose, the British law firm representing the Palestinians who brought the claim against Almog are outraged by the police's willingness to allow the plane to take off. They could have prevent Almog from leaving by denying the jet permission to return home. Yet not only did they allow Almog to leave, the British Foreign Minister at the time, Jack Straw, issued an apology for the incident.

Preventing these annoying confrontations is just one reason why universal jurisdiction is a bad idea. A number of countries, including Belgium, which almost tried sitting Prime Minister Ariel Sharon for war crimes, have a law that grants their courts jurisdiction over any person, anywhere who is responsible for committing war crimes, genocide or crimes against humanity (Belgium modified its law in 2003 because of the Sharon fiasco).

I'm not against the concept of universal jurisdiction in some cases. Certainly war crimes should be punished and some states don't have the capabilities to do so. But the prospect of political misfeasance outweighs the practical benefits of deterring actual war criminals and these applications of the universal jurisdiction statutes to Israeli leaders and generals is a prime example. Israel is a flourishing, albeit imperfect, democracy with an abundance of judicial review (perhaps too much). War crimes are taken seriously and cases can be brought in Israeli military or civil courts. Israel has been known to create commissions to review especially egregious examples, the Kahan Commission being the most famous example.

Foreign countries should not get involved when the alleged criminal lives in a country with a functioning judicial system that is serious about preventing crimes against humanity and war crimes. That is especially true about countries that are currently involved in a war itself and might have its own generals dragged into court in some other country. All countries should think long and hard about whether the benefits of these univeral jurisdiction statutes outweigh the costs.

Non-Originalist Theories Of Constitutional Interpretation Part II

2008-02-19T16:43:00.002-05:00

In Part I I dealt with Pragmatism and Judicial Minimalism, two non-Originalist theories of constitutional interpretation. In this post I would like to explain Judicial Restraint and John Hart Ely's Democracy-strengthening jurisprudence.

1) Judicial Restraint: Practiced most prominently by Justice Felix Frankfurter, judicial restraint calls on the judge to defer to the elected branches on most constitutional questions. In his dissent in Trop v. Dulles Frankfurter announced,

[I]t is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.

Frankfurter did not practice judicial restraint in the sense it is used today. Restraint is the oft-mentioned counterweight to judicial activism, a term with little content. Restraint in today's parlance refers to a judge's obligation to uphold legislation if it is not constitutional but to strike it down if it contradicts the Constitution. Frankfurter, however, applied what is called the presumption of constitutionality, and generally upheld legislation unless it shocked the conscience. Even if he disagreed with the legislation or felt the legislation might contradict the Constitution, he still upheld it.

I can't think of any modern day judge who followed in Frankfurter's footsteps.

2) Active Liberty: John Hart Ely, one of the most influential legal scholars of the 20th Century, argued that the courts should act in a way that strengthens democracy. Rather than overturning legislation on substantive constitutional grounds, Ely proposed making changes that would allow democracy to flourish.

Ely's starting point was the famous Footnote 4 in the Carolene Products case in 1938. Chief Justice Stone's famous footnote listed three situations where judicial scrutiny might be appropriate. The second and third were most relevant to Ely. One situation was when the legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Another instance when judicial intervention might be justified is when "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities"

Ely built his theory on these two situations. He argued that judicial deference is unwarranted when

(1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.

Only in those situations should the courts intervene and make constitutional decisions. Democracy should be the guiding principle of the Court's doctrinal jurisprudence.

Ely died in 2003. Justice Stephen Breyer has seemed to pick up his mantle in Breyer's book, Active Liberty: Interpreting Our Democratic Constitution. The book takes up a number of jurisprudential issues, including constitutional and statutory interpretation, and he believes constitutional interpretation should be guided by the liberty of the ancients (see here for a book review by Richard Posner). Rather than support the institutional designs that curtail democracy but increase what we would call liberty, such as, for example, separation of powers and federalism, Breyer looks to find ways to strengthen democracy. Breyer's conception of democracy is basically direct democracy; in a perfect world direct democracy would flourish and protect minorities, but in our world the Court must act to implement the ideals that would have been legislated in that perfect world.

In Part III I'll deal with Richard Epstein's libertarian theory and Laurence Tribe's non theory.

Kosovo And Palestine

2008-02-18T22:02:00.002-05:00

Yesterday Kosovo declared its independence from Serbia. The United States joined a number of countries, including France and England, in recognizing Kosovo as an independent state. Other countries opposed the move including Spain, Russia and China, all nations dealing with a minority that wishes to secede from its mother country. Israel has decided to deny recognition as of now, but will likely endorse Kosovo's sovereignty in the future (Haaretz argues for Israeli recognition here).

I don't know very much about the specific circumstances that led to the Kosovan declaration. But I do wonder whether if Gaza or Palestine (Gaza/West Bank) decided to declare independence, if that move would be consistent with international law. Not that such a move would be a novelty, as Arafat declared independence in 1988 from his cushy residence in Tunis, Tunisia. That declaration was not universally accepted (at least by the states that had not already recognizing Palestine), and was most likely inconsistent with international law. But would such a move today violate international law?

Article 1 of the Montevideo Convention on the Rights and Duties of States lists four characteristics necessary for statehood:

a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

Let's look at these necessary conditions in regard to a Hamas declaration of statehood in Gaza or a joint declaration of the West Bank and Gaza.

1) A permanent population: In both cases, this condition has probably been fulfilled. Notwithstanding the question of whether Palestinians were a people in 1922, 1947, or 1967, they probably qualify today. Many Palestinians in the territories have been living there their entire lives. They consider themselves Palestinian. Much, if not the majority, of the world considers them a separate people. The Palestinians probably fulfill this condition.

The Palestinians in Gaza can make a similar, but weaker, claim. Gazans and West Bankers have a somewhat disparate history, given the different occupiers from 1948-1967. The Egyptians treated the Gazan quite differently than the West Bankers were treated by Jordan. I'm not sure Gazans can make a serious argument that they are truly distinct from the Palestinians in the West Bank, so I'm not sure they can claim to have a permanent population independent of the West Bank.

2) A defined territory: The Gazans can argue they fulfill this requirement fairly easily. There aren't any serious claims to any part of Gaza coming from any other countries, Israel and Egypt included.

The Palestinians as a whole cannot make the same claim. Israel claims, at least in theory, a large segment of the West Bank. Moreover, there are competing claims over Jerusalem, which would likely be considered a part of Palestine if a state were declared.

However, clearly defined borders are not a necessary condition for statehood. Israel did not have such borders in 1948 when it declared independence or in 1949 when the UN admitted Israel (in truth it doesn't even have them today). It is sufficient to have a claim over a certain general area, even if the exact parameters have yet to be decided. So the Palestinians can probably claim they can fulfill this condition.

3) Government: This is probably where both claims fail. Neither Hamas in Gaza or Fatah in the West Bank exercise any serious government functions right now. The primary function of a government is to supply law and order. Abbas cannot even control his own subordinates, never mind actually ensure that his reign is supreme. Hamas has a little more control, but how long will that really last? If Fatah regains a stronghold in Gaza, can Hamas ensure its superiority? Or is the Hamas victory there merely temporary?

Additionally, neither group can prevent Israel from invading at will. Israel currently controls the borders of Gaza and has the ability to launch operations at any time. In the West Bank the situation is even worse. Israel has numerous bases and settlements throughout the West Bank. Fatah can do nothing to stop that, short of actually making peace, which we all know isn't happening any time soon. So neither Gaza nor Palestine fulfill this qualification.

4) Capacity to enter into relations with the other states: The PA in the West Bank has a much better infrastructure for dealing with international affairs. They have observer status in the UN General Assembly. They have consulates in a wide-range of countries. And they have a real working foreign ministry.

The Gazans don't have a similar structure in place. And given Hamas' reputation worldwide, I'm not sure they could build it in the future.

In summary both Gaza and Palestine probably fail the government condition, which deprives them of statehood under this treaty and they do not consistute a state under the Montevideo Treaty.

Besides the Montevideo Treaty, there is also a theory that recognition is a necessary and sufficient condition for statehood. International law distinguishes between the recognition of statehood and the recognition of a government. A state can recognize the former without recognizing the latter. Most countries that recognize the state of Palestine recognize the Palestinian National Authority, though not all. Moreover, well over 100 countries have accorded recognition to Palestine over the last 60 years.

In my mind the constitutive theory of statehood is flawed because it allows the creation of states that do not fulfill the most basic conditions of statehood. A state cannot exist if it doesn't have a government or territory. Palestine and Gaza probably have the latter, but not the former.

So if either Hamas or Palestine declared independence tomorrow, I don't think they would be a state under international law.

Non-Originalist Theories Of Constitutional Interpretation Part I

2008-02-17T12:40:00.005-05:00

Originalists are often accused of pretending that the world of constitutional interpretation consists solely of two camps: Originalists and non-Originalists. Although this charge is often overstated, Originalists often do tend to view their opponents as part of a unified camp of theories that oppose interpreting the Constitution according to its plain meaning at the time its ratification/creation.

On the heels of a paper about how there is no substantial agreement among Originalists about the Originalist enterprise, Larry Solum responds by arguing that Originalists do have a common theme:

The core commitment of originalism is the thesis that the semantic content of the Constitution was fixed by the relevant facts at the time each provision (the Constitution of 1789 and the amendments) was ratified.

Originalism differs from non-Originalist theories by making specific facts at the time of founding dispositive or at the least very important. Originalism considers either the intent of the Founders or the public meaning of the text at that time as strong evidence of the text's meaning. So in a sense non-Originalist theories do tend to have a unifying factor: they all refuse to grant certain facts or ideas from 1786 serious weight. What the terms meant then might be relevant, but it does not outweigh other more important facts, such as consequences, morality, or the meaning of the text today.

What are those different theories? This post would have been easier to write a few years ago before almost everyone in the liberal camp decided to jump onto the Originalist bandwagon. But I'll do my best to break down the different non-Originalist groups, while leaving the Originalist camp for a different post. I will also try to get the theories as accurate as possible, but I'm sure I'll get some facts wrong. Please correct me in the comments.

1) Pragmatism: Pragmatism involves looking at the consequences of a decision as much as the legal texts that are relevant to that decision. Most forcefully articulated by Richard Posner, Pragmatism accepts the validity of texts only insofar they generate favorable consequences. Posner's Law and Economics method of deciding non-constitutional cases in an outgrowth of Pragmatism.

Posner is especially supportive of eliminating formal restrictions that serve no practical purpose. For example, the Supreme Court has generally refused to apply many of the constitutional protections to activities by the government that are committed outside of the borders of the US. So, for example, the Court has not yet granted the inmates of Guantánamo Bay formal constitutional protections. But the exact same activities in the US would generate those protections. Posner believes the distinction is useless, since the government will just create detention camps outside of U.S. territory where there will be even less oversight. So he suggests a uniform rule, one which gives suspects in Guantánamo more rights than they have now but less rights than they would have in a similar camp in the US.

This argument clearly distinguishes Posner's method of interpretation from Formalism. Formalism is about following the rules despite the consequences. If the precedents demand delineating based on where the government incarcerated the terrorist, then we must continue to make that distinction. Posner only follows precedent itself for instrumental reasons and if the consequences of the precedent are negative, he'll forgo the precedent entirely.

2) Judicial Minimalism: This theory involves deciding cases as narrowly as possible rather than making decisions based on broad principles. A good example of Minimalism is Cass Sunstein's hypothetical decision in Brown v. Board of Education. Rather than promulgating the broad idea that separate can never mean equal, Sunstein would have continued the tradition of desegregating on the grounds that separate was unequal in that particular situation. Segregation in public schools was not unconstitutional because the Constitution forbids separate but equal in the public school setting, but rather because in the situations before the Court in 1955 in the two-tier public school system in the South was woefully unequal.

Sunstein's book One Case At A Time argues for deciding cases based exclusively on the facts in front of the judge. Sunstein applauds the Court's decision in Romer v. Evans, a case which ruled a Colorado law that prohibited giving government protections against discrimination on the basis of sexual orientation was unconstitutional, because instead of ruling that all discrimination on the basis of sexual orientation was unconstitutional, they limited their ruling to one specific instance of such discrimination. As more and more cases end up on the Court's docket, the Court will slowly, but surely, ban invidious sexual orientation discrimination.

This ideology squares with the Conservatism of Edmund Burke, the British philosopher. Burke argued that society was structured in a nonhaphazard way and making radical changes could have unforeseen negative repercussions. Sunstein opposes making radical changes partly because such changes could lead to opposition by a large disgruntled segment of the population.

Another supporter of Minimalism was Alexander Bickel. Bickel believed that cases that can be decided on procedural grounds should not be determined based on substantive arguments.

In Part II I'll go through Judicial Conservatism, Libertarian theories, and possibly Ronald Dworkin's theory that law must fit with our legal scheme and be justified morally.

Is Atheism Just a Religion In Disguise?

2008-02-15T12:42:00.004-05:00

David Sloan Wilson, an atheist evolutionary biologist, argues in a four part series (I, II, III, IV with more to come) about the "New Atheists" that the ideology of Dawkins, Dennett and Hitchens is really just a stealth religion. In doing so, Wilson distinguishes between factual and practical realism. Factual realism is about what really is; it is epistemic reason with the goal of finding the truth. Practical realism is instrumental; it leads to beliefs that are not necessarily factually true, but will serve a utilitarian purpose.

For example, imagine someone is diagnosed with a likely fatal form of cancer. That person will probably die within 6 months. However, clinical studies have shown that people who believe they have a shot of survival tend to survive more often than those who resign to their fate. Factual and practical realism would conflict insofar that the patient believing falsehood is beneficial to her future odds of surviving the illness.

Wilson is an evolutionalist, so he provides a biological basis for the distinction. If our minds are a result of natural selection, they are likely programmed to lean toward practical realism because an accurate representation of the world is less likely to help an organism survive than a belief that serves a specific purpose. Wilson gives us an example:

Consider Hans and Igor, who are mortal enemies. Hans understands that Igor is much like himself, even to the point of competing for the same square of ground. Igor regards Hans as an inhuman monster, completely unlike himself. If Igor's belief makes him fight with greater determination, then it counts as practically realistic, even if it is factually incorrect.

Igor is more likely to fight for that piece of land because he feels that Hans is a monster. But Hans knows the truth, which is that Igor and Hans aren't very different. But that epistemically accurate belief will do him no good in a fight like this. Igor's practical realism will win out in the end.

As a certain popular JBlogger used to say, religion is a necessary part of the human psyche. Wilson would probably disagree with that point, but he would probably agree that believing in some false concepts is hardwired into our brain. But that is only the description of how the human mind works. It doesn't mean that we should resign ourselves to the fact that it ought to work that way. Should humans work to actively eradicate any traces of practical realism when it conflicts with factual realism?

In a statement reminiscent of another blogger, Wilson talks about how truth is only one value:

Since most atheists are self-described truth lovers, it is easy to conclude that we have a moral obligation to favor factual over practical realism, whenever the two conflict. However, most of us presumably also want to live in happy, healthy, thriving communities. If there is an unavoidable trade-off between factual and practical realism, that would place all of us in a moral dilemma. Atheists such as myself are banking on the possibility that we can have our cake and eat it too; that factual realism can contribute to, rather than detracting from practical realism. We need to be clear about our own articles of faith.

Wilson basically argues that there is no clear moral duty to only have true beliefs. If a false belief will have a positive benefit, it is not so obvious that we must purge it from our set of beliefs. Wilson is not making a clear normative statement about whether we must have epistemically true beliefs.

This takes us back to an old debate between William James and William J. Clifford whether we have a duty to hold only true beliefs. Some scholars believe that the argument was taking place on the normative, rather than just the epistemic, level. We have a moral duty to only believe true things. But that argument is problematic because sometimes practical realism will assist us in fulfilling our other moral duties. I might be more willing to help a person in need if I believe that person is generally good, rather than a criminal.

I hope to write more about this over the next week or so.

Alexander Bickel, Aristotle, and Yisro

2008-02-14T11:36:00.003-05:00

Anyone paying attention to politics and the courts over the last 20 years or so has heard of some variant of the term The Counter-Majoritarian Difficulty. Coined by Alexander Bickel the phrase reflects the anti-democratic nature of the judiciary. Put very basically, if our structure of government is based on the will of the majority (and it is for the most part) then having unelected judges overrule the legislation passed by the majority's representatives runs contrary to democracy.

The simple resolution is that the judges are not overruling the majority's decision on the basis of their own whims, but rather striking down laws that are opposed to the Constitution. Since the Constitution was passed by a supermajority and is the supreme law of the land, it takes precedence over any regular legislation. Therefore if a judge feels that some legislation goes against the Constitution, he is within his rights to declare that legislation unconstitutional. There is no more difficulty because we don't have unelected judges striking down statutes; rather it is the Constitution itself, which was also the will of the people, negating those statutes.

The problem with this answer is that the Constitution is hardly clear. Many, if not most, of its clauses are ambiguous and vague and require some element of human interpretation. If that is true, then we are back to square one. Say, for example, a judge decides that the Equal Protection Clause of the 14th Amendment requires a flat income tax, because a progressive tax treats people unfairly based on their income. Surely such a view is not self-evident in the text itself. But is the judge wrong? It is a plausible reading of that clause. But if we allow any plausible reading of a constitutional provision to overrule the will of the majority, then the Constitution becomes nothing more than a hook for unelected judges to impose their own personal policy preferences. They are overruling democratic legislation, not the Constitution. The Counter-Majoritarian Difficulty rears its ugly head again.

One solution to this problem is for judges to have a methodology. Embedded in our system of courts is the concept of precedent. Precedent takes two forms: vertical and horizontal. Vertical precedent requires that a lower court accept the decisions of a higher court as binding. So the Court of Appeals in bound by the decisions of the Supreme Court no matter how wrong-headed the decision might be. Horizontal precedent is how the court's own precedents affect its future decisions. The Supreme Court is bound by its own precedent in the sense that it considers its earlier decisions weighty, but it can overrule those precedents if it wanted to do so. While the exact nature of horizontal precedent is hotly debated, it basically serves as a presumption of correctness if a similar case arises in the future.

Almost everyone accepts that precedent is binding on the courts in some sense. Precedent limits judicial discretion by requiring judges to deal with earlier decisions on the subject. So using my above example, since the Supreme Court has ruled that wealth classifications are reviewed under rational basis scrutiny (meaning the classification is constitutional as long as the court can provide a rational basis for the distinction, which it almost always can do), any judge who wants to render certain aspects of our tax code unconstitutional will have a very difficult time jumping the hurdle of precedent.

While precedent does serve a constraining function, some believe other methodologies work better. One of the justifications for Originalism (a methodology of constitutional interpretation that requires interpreting texts according to their original meaning) is that it points judges to an objective guidepost and therefore minimizes discretion. If the term "Equal" did not include wealth classifications in 1866, then the Constitution's original meaning did not prohibit a progressive tax code. Judges must square their decisions with objective historical analysis and that limits discretion greatly.

Whether this idea is true or not can be debated a different day. The fact is, however, that a methodology does serve as a means of constraining judicial discretion. A methodology requires the judge to take into consideration a number of extra factors, and those factors limit the possible outcomes. So Originalism and precedent do limit the number of judicial outcomes.

The common denominator between precedent and Originalism is that they both process-based constraints. We limit judicial discretion by forcing judges to take into consideration other factors besides the actual text itself. Methodologies (which includes precedent) imposes restrictions on how judges decide cases. It focuses on process. But there is another means of preventing judicial overreach: we could appoint the type of judges who wouldn't overreach. We could focus on the judge's character rather than how he would decide cases.

Traditional morality the last few centuries can be broken down into two distinct strands. Consequentialism, made famous by Jeremy Bentham, requires a moral agent to act in a way that has positive consequences. The most famous form of consequentialism, Utilitarianism, requires doing actions that increase overall utility. The opposing theory is Kantian Deontological Ethics, which focuses on duties and obligations. We must do acts that are required by a duty and refrain from acts that contravene an obligation.

The theme between these two moral theories is that they focus on actions rather than on the person. We must commit acts that have favorable consequences or are in concert with a duty. An alternative theory, Aristotelian Virtue Ethics requires that a person must act according to how a virtuous person would act. A virtuous person is one who possess a number of virtues.

How does this apply to the constitutional questions? Over the last few years Lawrence Solum has pushed the idea that constitutional theory should take into consideration Virtue Ethics. In his article The Aretaic Turn in Constitutional Theory Solum argued that when appointing judges, rather than looking at their methodologies, we should look for certain judicial virtues and avoid judicial vices. His list of virtues include judicial temperance, judicial courage, judicial temperament, judicial intelligence, and judicial wisdom. Judges who obtained these virtues should be confirmed. Judges who do not or have the countervailing vices should not be confirmed irrespective of methodology or ideology.

Interestingly we have a precedent for such a view. Even since I've become exposed to legal theory I've always been bothered by the lack of methodology in Halacha. There are rules of evidence like presumptions and precedent has a very important role, but there aren't any methodologies similar to Originalism of which I am aware. How do we avoid the problem of judicial overreach, which would be Poskim imposing their personal policy views on the population?

Yisro gave us the answer. In Shemos Perek 18 he tells Moshe that he must appoint judges. What type of judges should he appoint? In 18:21 he lists four judicial virtues: "אַנְשֵׁי-חַיִל יִרְאֵי אֱלֹהִים, אַנְשֵׁי אֱמֶת--שֹׂנְאֵי בָצַע" which can roughly translated as "men of accomplishment, G-d fearing people, men of truth, people who despise money." Basically Moshe should look for people who fear G-d and cannot be bribed. Such judges are less likely to be influenced by the litigants and will offer an honest judgment.

I can't say that Yisro was worried about judicial overreach in the same sense as Bickel, his list of virtues can serve as a starting point in the right direction.

Oh, That's Too Bad

2008-02-13T10:24:00.002-05:00

#2 in Hezbollah Imad Mughniyeh died today in an explosion in Syria. Israel is denying responsibility, which is probably the right move even if they did kill this guy.

Mughniyeh was responsible for the deaths of hundreds of people. He might have had links to Al Queda. The long arm of justice reaches all.

Demographics And Poverty

2008-02-12T11:47:00.000-05:00

We've all read about how the welfare cutbacks in Israel has led to a lower birthrate in the Chareidi and Arab communities. Amnon Rubinstein argues in yesterday's JPost that greatest demographic threat to Israel is the high birthrates of its poorer communities.

Right now the majority (comprised of everyone but pretty much the Chareidim and Arabs) is 70% of the population, meaning that 70% is supporting 30%. While such a high percentage of poor people is detrimental to Israel's economy, the size of those communities is expected to grow to close to 40% by 2025. Can 60% support 40%?

In exchange for staying in the government, Shas is asking for a return to the olden days, when large families received greater benefits per child. Rubenstein asks Olmert to refuse Shas' demand, even if it costs Olmert the premiership.

Rubinstein correctly, in my view, recognizes that cutting back on welfare will create incentives to look for work outside of the Yeshiva, as well as to decrease family size. These are good things for a society, even one like Israel with another demographic problem. But having a number of children in poverty is not beneficial to society, especially when the majority is obligated to support them. Moreover, the policies that lead to a decrease in the Chareidi birthrate caused an even greater drop in the Arab population growth.

Using welfare benefits as a tool to influence policy worked very well in the US. In 1996 Congress passed a welfare reform bill, which drastically cut back on the amount of child poverty and even got people off the state welfare rolls. In Neoconservatism: The Autobiography of an Idea, Irving Kristol argued that welfare is a good idea in theory, but it creates all kinds of disincentives to work. Cut people off of welfare and they'll look for actual employment.

The socialist Israel could never accept such a conclusion, given their ideals of equality of result. But if anything is good about Netanyahu, it is his idea that economic growth is predicated on people working, rather than accepting money without providing any benefits to the economy. Bibi implemented these reforms and there have been measurable positive effects. If Israel reverts back to its socialist ethos and reenacts large welfare grants to large families, those economic benefits will be undermined. Let's hope Olmert gets that.

Must We Put Our Money Where Our Mouths Are?

2008-02-11T11:36:00.000-05:00

The old saying "put your money where your mouth is" requires people who support a certain course of action to do something active about it. Our good friend DovBear implicitly referred to this maxim when he counseled Mitt Romney's sons to join the war their father supports.

The obvious question is why Romney's sons should join the war. Who says they (or any politician's kin for that matter) support the Iraq War? Shouldn't we at least make an effort to determine their stand on that issue before asking them to join the military?

But let's use a hypothetical person, Person X, a young man who does support the war and see if the charge makes sense. Person X has always supported the Iraq War and believes we should keep the troops there until the job is done. Must he join the military and asked to shipped out to Iraq right away?

I don't see why. But first we must try to figure out what DB is actually claiming. He can't be making a descriptive claim because we all support claims and do nothing about them. I believe cancer research is quite important, but I've never donated a single dollar to a cancer charity. I may have good reasons for doing so (I might feel other charities are more valuable) or bad reasons (I might be too cheap to give charity) but either way no one can argue with a straight face that people generally support causes they feel are valuable.

So DB must be making a normative claim: if someone supports a cause he ought to do something active to help it. But why would that be? If I happen to believe a certain policy is the best morally or pragmatically, why must I do something to help that cause?

I'm not really sure, but I'd guess the answer has something to do with the implications of how the policy gets carried out. If Person X believes the Iraq war is important, he supports keeping our troops in Iraq, which requires us having troops in our military in the first place. Person X's preferred policy requires that some people join the military and go to Iraq. In other words, Person X's political view expects other people to carry out his policies. If that's true, perhaps Person X has the obligation see his views fulfilled, rather than expect other people to do things for him.

In all honestly, I don't find this line of reasoning very compelling (maybe because I made it up myself). But let's assume there is a moral obligation for a person who supports a cause to do something active to help it.

Let's use person X again, but this time let's assume he supports having a police force (this way we can avoid debating the Iraq War question). Person X always talks about how having cops walking the streets helps make society better. Does he have a moral obligation to join the police force? I'd say no for a few reasons.

First, while Person X has an objective obligation to help his personal causes, he might also have a subjective obligation to other people. Maybe Person X is married with two children and has an obligation to support his family. Becoming a police officer is risky and doesn't pay well, so Person X has to look for employment elsewhere if he expects his family to have a reasonable standard of living.

Second, perhaps his value to other causes is greater than what he can provide to the police force. Maybe he is a brilliant medical student who can help discover a cure for cancer, but is a physical weakling who would make a terrible police officer. So even if the police force is the most important cause, he can add more to the world by becoming a cancer researcher.

Third, while he values a police force, perhaps Person X considers other causes more important. Maybe he favors cancer research and has decided to devote his life to finding a cure. While a police force is important, his obligations to cancer research outweigh his obligations to the police force.

Lastly, maybe the marginal utility of his assistance to the police force is less than the marginal utility of his aid to another cause. Let's assume he considers the police force the most important cause in the world. The second most important cause is cancer research. But in this hypothetical world, there is a waiting list a mile long to join the police force, but no one wants to become a cancer researcher. So even if he feels he personally could help the police force more than the cancer research department at his local hospital, he might do the latter simply because his benefit to society will be slight if he takes the former route rather than the latter.

In summary I don't understand the source of this obligation, but even if it really exists, there are many reasons why someone might not "put his money where his mouth is."

Why Women Should Settle

2008-02-10T11:38:00.000-05:00

In an article more likely to appear here, rather than here, Lori Gottlieb makes the case for choosing Mr. Good Enough instead of waiting for Mr. Right.

Working against the presumption that women should wait for true love no matter how long, Gottlieb claims that most women tend to want to get married and are forced to settle as they get older. Someone they would have rejected out of hand in their 20s becomes eminently more appealing in their late-30s. As they age, women realize their prospects become more and more limited and they begin to worry about the possibility that they will never find anyone. You think older women don't worry? To the women who argue that they aren't worried Gottlieb responds:

And all I can say is, if you say you’re not worried, either you’re in denial or you’re lying. In fact, take a good look in the mirror and try to convince yourself that you’re not worried, because you’ll see how silly your face looks when you’re being disingenuous.

Gottlieb even believes that marriages that aren't based on true love and passion are more likely to last:

Based on my observations, in fact, settling will probably make you happier in the long run, since many of those who marry with great expectations become more disillusioned with each passing year. (It’s hard to maintain that level of zing when the conversation morphs into discussions about who’s changing the diapers or balancing the checkbook.)

Gottlieb's conception of marriage is pragmatic. Marriage isn't about romance and passion; it is, as she puts it, "a partnership formed to run a very small, mundane, and often boring nonprofit business." When running any business, it's better to have a partner, even if he isn't perfect, than not have any partner at all.

Look at the list of guys her friends settled for by the time they got older:

[A] recovering alcoholic who doesn’t always go to his meetings; a trying-to-make-it-in-his-40s actor; a widower who has three nightmarish kids and who’s still actively grieving for his dead wife; and a socially awkward engineer (so socially awkward that he declined to attend his wife’s book party).

When it comes down to it, maybe conventional wisdom (and by that I mean the shidduch dating guides we all laugh at) isn't as wrong as we suppose. They tell us to focus on the important things and not look for romance on the first date; Gottlieb counsels not looking for romance at all. The guides tell us that family is what is important and we need to look for a good parent in our dating partner rather than a supermodel; Gottlieb argues that once kids come into the picture, marriage will have a very different structure and what we originally looked for in a spouse (as opposed to a parent) won't matter anymore. Gottlieb's argument returns us to the earlier days of dating and marriage where marriage was about building a family, and they were perhaps the more realistic days.

One phrase in particular stuck out: Gottlieb talks about her married friends who constantly rail on against her husbands but will always admit they would never leave him. As she puts it,

They, like me, would rather feel alone in a marriage than actually be alone, because they, like me, realize that marriage ultimately isn’t about cosmic connection....

Seem familar?That comment sounds awfully like the Talmudic dictum "tav lemeitav tan du mi-lemeitav armalu," which basically means a woman would rather be in a bad marriage than be alone. Who would have ever thought The Atlantic Monthly would be the one to confirm an old Talmudic saying?

Wives And Allowances

2008-02-08T11:00:00.000-05:00

An excellent post by Sephardi Lady links to a message board called Imamother, which is frequented by wives and mothers. The topic of the this particular thread was about whether the wife receives an allowance from her husband. One women happily admitted that her husband gives her $200 a week for household and personal expenses, and then she is grateful when she has extra money in case unexpected expenses come up, such as an exterminator.

I feel like I'm in a time warp when reading comments like that. Perhaps the wife is a compulsive spender, so limiting her access to money is a good thing. And maybe no couple in 2008 really operates this way. In that case, I'm just talking about a hypothetical world. But if some marriages really do function this way, I can't see how those marriages aren't inherently unfair.
Let's assume allowances are characteristic in marriages where the husband is the sole breadwinner. Let's say he has a business or obtained a degree while they were married. Well it's his money, so he can give her as much as he wants, right?

That's just not how our society or legal system understands the nature of marriage. In New York, if a husband acquires a professional degree during the marriage, the degree is considered marital property and half of the degree -- or more accurately the present and future earning power of that degree -- belongs to the wife. The rationale underlying this legal rule is that the wife participated in the acquisition of the degree by taking care of the household duties and/or supporting the husband while in school.

This conception of marriage is that of an equal partnership. Both parties provide inputs into the marriage, so if it has to be dissolved, both should split the outputs. In my mind, this conception is probably the most accurate.

But there is another understanding of marriage that would also make sense. The husband would have complete ownership over the business or degree but he is obligated to pay the wife for her services. This notion of marriage views it as an employer-employee relationship. While some of us might consider that view morally problematic, it makes sense economically. The husband might own the business and have a right to control all the finances, but he has an obligation to provide her with the market value of his services. Considering how much live in maids and nannies go for, I imagine 200 dollars a week doesn't cover it, especially when included in that $200 is the very money she needs to do her chores.

What doesn't make sense is the idea of marriage that expects the wife to do the chores, raise the children, and give up any semblance of a career, but not receive adequate remuneration. The husband can't control all the money and not pay her for her services. Either she has equal access and they are partners or she is an employee who gets paid. Any other way just seems unfair.

What Voter Ignorance Can Tell Us About The Israeli-Palestinian Conflict

2008-02-07T11:00:00.000-05:00

Recently I linked to a paper by Ilya Somin, a member of the Volokh Conspiracy and a law professor at George Mason. The theme of his article is that voters are rationally ignorant and this phenomenon creates practical problems (we choose leaders for bad reasons) and normative difficulties (democratic theory presupposes a certain amount of voter knowledge if democracy is going to function).

The end of his paper deals with how the war on terror is affected by ignorance in Muslim countries. As examples he cites surveys that shows people in those countries are woefully ignorant about international affairs, including believing that the 9/11 attacks were not carried out by Al Qaeda. This study fits well within his theory. If Americans, who are educated and have almost unlimited, easy access to information choose to remain ignorant, people in Muslim countries who do not have a free press and limited access to information should be even more ignorant.

I think this point is true. If Americans are ignorant because their votes have little value, people living in dictatorships are going to have less incentives to learn about the issues. However, I think there is a countervailing consideration. Much of our ignorance hinges on the idea that the differences between the candidates are not really that vast. Electing McCain as opposed to Hillary will have real consequences, but not in the same way as overthrowing a dictator. So the average Arab might have more of an incentive to learn the issues for that reason.

Either way ignorance in the Arab world is a real problem. Applying this concept to the Israeli-Palestinian situation, we can definitely draw conclusions that have serious ramifications. If Palestinians are as ignorant as we are, since their voting options and access to information are much more constrained, perhaps we cannot influence them much politically through grandiose ideas like statehood or autonomy. I'm not saying the Palestinians are stupid and won't know the difference between living under Israeli or Palestinian control. But no matter what we do, we'll be running up against a situation where the very people we are trying to impact won't really know how we are helping them.

Perhaps the best way to influence the average Palestinian is to make changes on the ground. People might be ignorant about national and political issues, but everyone knows about the factors that affect him directly. Palestinians know all about roadblocks, closures and military incursions either because they themselves experienced them or because someone they know did. It is the actual experiences of the Palestinians that really matter.

This can work in two different ways: we could try to make their lives easier (how the Left approaches it) or we can try to show them that terrorism will only hurt them (the approach of the Right). The former view expects the Palestinians to give up their irredentist aspirations once they realize we are not trying to destroy them and take their land. That can only succeed once we take action to make their lives better. The latter approach believes the Palestinians will never agree to a peaceful arrangement unless we show them they have no choice. We must show them that violence will never lead to their desired aims.

I don't know who is right, but I think it's important to recognize that ignorance is a real obstacle we have to overcome and modify our thinking accordingly. Minor moves, like releasing a few hundred terrorists, is not going to have a real effect on the situation, unless it is coupled with farther reaching moves. Similarly, a small incursion into Gaza isn't going to stop Kassams or even convince the average Palestinian that shooting Kassams is a bad thing. We need to do something that will cut through the ignorance and affect the average Palestinian himself.

Why Trade For Shaq?

2008-02-06T21:00:00.000-05:00

Despite having the best record in the Western Conference, the Suns decided to trade Shawn Marion and Marcus Banks to the Heat for Shaquille O'Neil. The truth is there isn't much to say about this trade that hasn't already been stated elsewhere (here and here), but I'm going to do it anyway.

This deals makes no sense from a number of standpoints:

1) Player Value - Marion is simply the better player at this point of Shaq's career. Every single basic and advanced metric bears that out. Per game Marion averages more points, rebounds, assists and steals. He averages slightly less blocks, but far less turnovers. He also shoots better from the line and 3-pointers. Shaq's only real advantage is FG%.

Advanced stats like Wins Produced and Wins Produced Per 48 minutes put Marion way ahead. Marion's WP of 9.6 is 7th in the League at the halfway point of the season, only slightly behind possible MVP Lebron James. His WP48 (0.314) is ahead of stars like Kobe, Carlos Boozer, Yao Ming, and his former teammate, Amare Stoudemire. Shaq, however, has a WP48 of 0.102 and a WP of 1.9, which puts him at 132 in the league behind luminaries such as Daniel Gibson and Keith Bogans.

Even John Hollinger's PER ranks Marion ahead of Shaq just based on per-game production. Marion is 30th in the league at 20.25, while Shaq is 49th with a PER of 18.16. And PER doesn't even take into account defense, where Marion clearly trumps Shaq.

2) Health - Marion has played in 79 games or more every single year since his 2nd season. How about Shaq? Shaq hasn't played in that many games in a season since Marion's rookie year. He played 73 game in his first year in Miami, but since then Shaq has only played in about 2/3rds of his team's games. So even if Shaq was more productive on a per game basis, he just doesn't play enough games to justify this trade.

3) Finances - Shaq has two more seasons at 20 million per year after this season. Marion has a player option for 17 million dollars that kicks in at the end of the year. So instead of one more year at 17 million at most, they now have two more years at 20 million. Even though the Suns rid themselves of Marcus Banks' 4 million plus per year contract (which runs for 3 more seasons), they still come out way behind.

4) Style of Play - The Suns are a run and gun team. Shaq can barely make it down the court. Marion was their big-time defender, a guy who could take anyone from Chris Paul to Carlos Boozer. Shaq averages 4 fouls in less than 30 minutes per game. Marion can score in a variety of ways. Shaq can still post up, but he does not demand the same double team he did in the past.

The only argument for getting Shaq is that he is a center and the West (and especially the Suns' biggest nemesis, the Spurs) are full of big men. While that is true, there is no way Shaq can defend Duncan anymore, and I don't think he could even do much to stop someone like Yao. So what's the point?

Maybe the Suns didn't want to lose Marion for nothing in case he decided to walk. If that's true, why not wait a little longer and see if they could swing a better deal? And even if they couldn't, Marion will want to be paid a lot at the end of the year, and that is most likely to happen in a sign-and-trade. So they didn't have much to worry about.

When it comes down to it, Shaq is still a decent player, probably one of the top 10 centers in the NBA. When healthy, he is in the top 5. But Shawn Marion is a top player in this league, younger, more durable, fits the team's style better, and is cheaper. Why give him up for an aging Shaq? I just don't get it.

Philosophy And Avoiding Infinite Regress

2008-02-06T09:49:00.000-05:00

I've been reading more philosophy lately and one consistent theme I've noticed is that philosophy is always looking for first principles or, put different, ways of avoiding infinite regress. What I mean by first principles is everything we know, believe, or follow can be challenged by looking for its basis, and when that is finished, we can repeat the challenge again by asking the same questions about the basis' basis. So we have to find a starting point that is either unchallengeable or can adequately respond to that challenge. I'm sure there are literally hundreds of examples, but I'm going to give four.

1) The First Cause of the Universe

This one is very popular among JBlog readers and has been attacked, defended, and then attacked again over the last few years. There are a number of permutations (St. Thomas Aquinas had a number of versions himself), but put simply the argument goes like this: everything we know is contingent in the sense that it exists as a result of something other than itself. But if these objects are contingent, then how could they exist? They must be contingent on other contingent objects, which are contingent on other contingent objects, etc. Basically all contingent objects depend on other contingent objects and that chain is infinitely long.

Religious philosophers try to avoid giving this answer by positing the existence of a non-contingent entity which necessarily exists. That entity is not contingent on anything else and can exist on its own. It necessarily exists. This is the First Cause, which is G-d.

2) The Foundations of Empirical Knowledge

Epistemology is the field of philosophy that deals with what we know, as well as what we can know. It creates conditions, both necessary and sufficient, for what constitutes knowledge. Put basically, knowledge is justified belief that is true. But what makes a belief justified?

There are a number of answers to this question (and some do away with the whole idea of justification entirely), but any theory of justification is going to require that the belief build on another belief. So belief A is justified by belief B. But how is belief B justified? By belief C. So it appears we have another example of an infinite regress, because each belief will be justified by some earlier belief.

Most of the epistemologists who consider justification a necessary condition fall into two categories: Coherentists and Foundationalists. The former believe that all our beliefs can be sustained by appealing to other beliefs we have in the system. This argument is essentially circular but not in a bad way. Each belief appeals to another belief as a basis of its justification and all the beliefs in the system are justified by other beliefs in the system. Foundationalists, however, argue that there are basic beliefs, which are beliefs that are capable of justification, but do not need to be justified themselves by other beliefs. This argument posits the existence of beliefs that are justified solely by experience and do not appeal to any other beliefs. By accepting the idea of a basic belief, they avoid the infinite regress problem.

3) The Origin of Law's Authority

Jurisprudence or legal theory deal with the important question of what gives law authority. If the law’s claim to authority is dependant on the law itself, then the law’s claim is circular. A law cannot be binding merely because it says that it is. Clearly some external source must be the basis of the law’s authority. But what is the basis of that law’s authority? Unless there is a source of law outside of law itself, law is relegated to infinite regress.

To make the question more concrete, here is an illustration. Take any statute passed by the U.S. Congress. Congress is authorized to make legislative enactments under Article I of the Federal Constitution, so Congress seems to be the source of the statute’s authority. But what is basis of Congress' authority? The Constitution. But what is the Constitution’s claim to authority? While Article VI of the Constitution deems it the supreme law of the land, a law cannot grant authority to itself. So we are back to square one: what is the source of Congress’ law-making power?

For the past few centuries this question was answered by two different camps. The Naturalists believed that G-d created natural norms, which vest man with the ability to create laws. G-d designed law-creating norms, and those norms could be used to create further, man-made laws, providing the laws conform with the original norms. These norms are also the primary sources of morality and therefore there must be some connection between the laws and morality.

The Legal Positivists answer this question by assuming that law's authority can be justified independent of other laws. John Austin argued that the original basis of law is the command of a sovereign who answers to no other and has the power to enforce his decrees. H.L.A Hart disagreed with Austin and argued that every legal system has a Rule of Recognition that is accepted voluntarily by some segments of the population. That acceptance generates a secondary rule, which is the basis of the primary rules, such as laws. So laws derive their authority from the voluntary acceptance of a class of society. The Rule of Recognition avoids the infinite regress problem.

4) The Source of Moral Obligations

This is an issue I haven't seen mentioned in anything I've read, but I probably haven't read enough of the literature. In two earlier posts (I, II) I questioned the reason why we are bound by Divine command. We are not normatively bound by a rule simply because someone, even G-d, proposed that rule. So if we are bound by G-d's command, it must be because there is some other moral obligation. But what is the source of that moral obligation? Any answer will just lead to the question of that obligation's source. I don't know the answer to this infinite regress problem.

I think it's an important question because if we can't figure out the basis for our normative obligations, why are we bound by G-d's will at all? And if we're not, what justification do we have to punish others who do not wish to voluntarily submit to G-d's will? For example, how can a Beis Din punish an Apikoris or order the destruction of Buddhist temple? Perhaps we can make a pragmatic argument, that allowing sinners to remain unpunished in our society negatively affects believers, so Beis Din's actions are not punishment as much as protecting our society. This argument lacks a normative foundation, so while it could serve as a justification, it is weak.

Super Tuesday And The Paradox Of Voting

2008-02-05T12:30:00.000-05:00

I haven't written about politics in a long while, and that's partially because my interest in the subject matter has waned over the past year or so. In 2004, I knew every candidate, what they stood for, and I had a clear idea who I supported. It was easier because I felt Bush was better than anyone the Democrats were offering, but overall I just cared more. I care less now, although I'm not sure why. I guess part of the reason is that I'm more interested in other subjects, and a guy can only pay attention to a limited number of interests at any given time.

So I'm somewhat ignorant about the primaries. Obviously I know a decent amount about the candidates (mostly who they are and where they're from), but I haven't done any serious research about anyone's record. But in that regard I'm not different than the average American.

The paradox of voting (explained well here) is that each vote is statistically meaningless, yet people vote anyway. But since votes count for so little, voters don't have any motivation to study the issues and make an informed choice. The aggregate of the votes end up being the decisions of ignorant voters, which can lead to disastrous choices. Even worse, in my opinion, is that political honchos know that voters will choose less based on substance and more on other not as important factors like appearance and charisma so they will push less qualified candidates who can appeal to the common voter, rather than serious leaders.

The biggest problem is that voter ignorance is entirely rational. If someone's vote matters so little, why should have take the time to become learned? Unless he has some other reason to follow politics (interest or he works in the political world), why follow the issues? The opportunity cost will always be higher than the gain in political knowledge. So remaining ignorant is the most rational choice, just as most of us choose to remain ignorant of subjects we find uninteresting.

So the rational choice on a micro-scale is ignorance, but that creates problems on the macro-scale. The result is a big flaw in democracy.

I've heard the argument that we should promote voting only for people who are educated. I once believed that we should require tests before people could vote (no, not literacy tests). The problem with this idea is that instead of increasing voter knowledge, it will most likely depress the ranks of the voters. Since votes matter so little, many people will simply just stop voting because the opportunity cost of learning the material is too high (I am ignoring other serious problems with that idea). So we'll end up having mostly people who have an interest in politics making the decisions. But why is that better than having the ignorant masses pick out leaders? The educated elite are not representative of society and would impose a narrow world-view on society. That doesn't help solve our problem, and might create other ones.

I don't know if there is a solution. Promoting more voting doesn't help choose good leaders. Pushing less voting doesn't work either. Increasing voter knowledge is close to impossible.

On a personal level, I just don't vote. My vote is practically meaningless, especially in New York and in a presidential election. But if I did vote, I'd choose McCain, simply because he has a better shot of beating whomever the Democrats nominate. If anyone is out there, you should vote, so go vote for McCain.

Foreign Same-Sex Marriage Recognized in NY

2008-02-05T09:13:00.000-05:00

A NY Appellate court last week required that all public and private entities in the state are obligated to recognize a Canadian same-sex marriage (text of the decision here). As a general rule, NY courts recognize out of state marriages that would be illegal in NY unless NY law expressly prohibits such recognition or the marriage is against NY's public policy.

The Court ruled that no such law is on the books in NY because even though NY's Constitution does not require same-sex marriage, there is no legislation that denies recognition to out of state same-sex marriages. Moreover the public policy exception only applies to marriages that are "offensive to the public sense of morality to a degree regarded generally with abhorrence.”

I was wondering why the Defense of Marriage Act is inapplicable here, but apparently DOMA only applies to domestic marriages and does not include marriages from foreign countries that would usually be recognized on the basis of comity.

It's been a while since I studied these issues, but is there any serious legal argument that opposes recognition of these marriages? And if not, couldn't any gay couple go to Canada, get married, and then force NY to recognize their marriages? DOMA was designed to prevent people from going to states that allow same-sex marriage and then requiring their home state to affirm their marriage, but this seems to be a loophole.

More importantly, if the Court of Appeals affirms this judgment, could this become a major campaign issue? Opposition to same-sex marriage in 2004 was a major reason why Bush was re-elected, since social conservatives came out to vote on state constitutional amendments banning same-sex marriage. If DOMA doesn't protect those states from foreign marriages, are more legislation or amendments necessary to prevent same-sex marriages in those states? Could this propel the GOP into office in 08?

Anyone Read Olomeinu As A Kid?

2008-02-04T12:41:00.000-05:00

It's been a really long time since I read Olomeinu, but I don't remember it being this bad. Perhaps I was too young to get the political agenda (via On The Main Line):

I think the comments on that post really sums up the utter awfulness of this comic.

Why I'm Glad The Giants Won

2008-02-04T10:55:00.000-05:00

At the risk of excommunication, I'll admit I was rooting for the Patriots last night. Even worse I'm a Jets fan, and the Jets and Pats are supposed to have some kind of rivalry, so how could I support the enemy?

Well, I'm not a Giants fan, so I didn't have any compelling reason to go for the Giants. I wouldn't root against them particularly (because I'm not a Mets fan), but I don't feel any reason to root for them.

For some reason whenever I watch a game I always have to be going for a team. The games are just not as interesting if I don't feel a personal interest in the outcome. Since I'm not a betting man, that means I have to choose a team. Sometimes I'll go for a conference or league in championship games (I rooted for the Tigers over the Cards in 06 because they were the AL representative). Other times I'll root against a team (I always hope the Red Sox lose). But that's not a very systematic way of picking a team to support. Since my football and basketball teams (the Jets and Knicks) have been mediocre at best for the last ten years, I had to choose a surrogate team. In the 90s I picked the 49ers (this wasn't frontrunning per se because the Cowboys were the better team during that decade). Since the Knicks imploded, I started going for the Spurs. Now that 49ers are bad, I've been going for the Pats.

I've always had a soft-side for team-centric, fundamentally sound teams. The Pats were the epitome of a fundamentally sound, egoless team. At least in the beginning they had no stars , no me-first guys, no showboaters. While a lot of that changed this year, I'm already stuck with them. So I went for them to win. With the exception of the Jets games, I hoped they would achieve perfection. No team had ever gone 19-0. I wanted to see perfection, to see history. Big super bowl upsets have happened before, but no team was perfect over 19 games. Sports is all about historic moments, and I wanted to see something I could colloquially "tell my grandchildren."

Equally as important I wanted to see these guys squirm. Over 30 years later they still celebrate every time the last undefeated team loses. They got to do it again last night. I can't stand people who say things like this:

"We were the first ones to climb Mount Everest," Yepremian said late Saturday. "If New England comes and does it, then they can be the second ones. But you usually don't remember No. 2. I remember Sir Edmund Hillary was the first one to climb Mount Everest. I don't remember who did it the second time. Do you?"

These guys practically define arrogance.

But, you know, despite all of that and even though the Pats lost, it was still worth it just to read this:

Finally, can you guess the last thing we heard as we were walking (OK, hustling) out of the stadium right after the final play? That's right, it was the sound of euphoric Giants fans chanting, "Eighteen and one! Eighteen and one! Eighteen and one!" Yes, it's safe to say the Boston-New York rivalry has been taken to new heights. As a tennis umpire would say, "Advantage, New York."

Eighteen and one! Eighteen and one! Eighteen and one!

I can still hear them. I will always hear them.

Let's follow it up with the Yankees taking back what rightfully belongs to them: a World Series win.

Congrats To The Giants

2008-02-03T22:36:00.000-05:00

I'm no Giant fan, but they played the best possible game they could have played and beat one of the greatest teams of all-time. That was probably the best Super Bowls I've ever seen. I tip my hat to them.

Few quick points:

1) Where does this leave the Pats? On one hand they didn't go undefeated. On the other hand, they went 18-0, which is better than 17-0. So how do we rank them all-time?

2) The Giants' lines dominated both sides of the ball. Brady had no time to throw, but Eli had all day. Despite the Giants playing that well, the fact the Pats almost won shows how amazingly talented that team really is.

3) Who would have thought Eli Manning would be the one to lead the Giants 83 yards in less than 4 minutes to win the Super Bowl? If you gave the casual fan a list of 30 QBs before the season and asked him to put odds on which ones would win the Super Bowl MVP, how many would have had higher odds than Eli? 15? 20?

4) After Namath's feat, is that the greatest upset in Super Bowl history? In terms of the spread it was the third greatest upset, after the Pats defeat of the Rams in 01-02, which it turns out might not have been so kosher after all.

5) The people pouring out of the bars outside my apartment sound pretty excited. I hope my car makes it through the night.

Don't These Guys Do This Stuff For A Living?

2008-02-01T12:24:00.000-05:00

A friend sent me the link to this article by Stanley Fish where Fish argues that theories of constitutional interpretation do not actually explain how judges reach their conclusions. He was sort of reviewing a book and the authors responded here. I hope to write something about this argument next week, but right now I want to respond to a passage that jumped out at me:

... [T]he ... process Fish describes is no different in principle from the view of “original intention” professed by jurists like Antonin Scalia, Robert Bork, and William Rehnquist. Both try to escape the burdens and responsibilities of seeking the true or best interpretation by fleeing to some kind of authority: for the former, the authority is the extra-constitutional doctrines of some favorite philosopher, and for the latter, the authority is the extra-constitutional intentions of the framers. Both approaches thus disregard the intentions evident on the surface of the Constitution as written – the “positive law,” if you prefer. A central aim of our book is to display the many fallacies of the Scalia-Bork-Rehnquist view of “original intention.”

Here's a bio for the authors of this passage:

Sotirios A. Barber is a Professor of Political Science at the University of Notre Dame and James E. Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law.

It boggles the mind that in 2008 there are still people writing books about Scalia's theory of original intent. To be honest I don't know enough about Rehnquist's view and Bork was, at one point, an intentionalist, so maybe they haven't gotten to memo (or read any of his books) where he argues for following original meaning, not intent. But Scalia? An intentionalist? Seriously? The "central aim" of their book was to rebut Scalia's intentionalism? Have they read anything he's written?

Scalia devotes a major chunk of his piece in A Matter of Interpretation to rejecting the idea that the intentions of the authors matter. Scalia is often criticized because his brand of textualism presupposes a plain meaning exists and that we should ignore the intentions of the legislators. Scalia believes the meaning of a legal text is how an average person would understand it when it was enacted. Scalia's originalism is just an expansion of his textualism: the plain meaning of the constitutional text is what a regular person would have understood it to mean at that time.

Attacking Scalia's intentionalism is like attacking Ronald Dworkin's Positivism or Steven Breyer's textualism. You'd actually be attacking the position they spent a large amount of time rejecting themselves.

How could two professors write a book about a topic and get it so completely backwards? It's one thing to attribute false views to someone or misunderstand his arguments. But to claim that someone holds a position that he actually strongly opposes is just bad scholarship. That's one book I'm not going to be reading.

Keith Law's Top 100 Prospects

2008-02-01T11:00:00.000-05:00

Both Baseball America (no free link so this is all I have) and Keith Law (it's free for now) came out with their list of the 100 top prospects in baseball in the last few days.

Baseball America has 3 Yankees in the top 40 (Joba at 3, Jose Tabata at 22 and Austin Jackson at 40), while Law puts them in the top 24 (Joba 3, Tabata 21, Jackson 24). It's amazing to see that an organization with so much pitching depth actually has two hitting prospects in the top 40 in baseball.

Two other pitchers -- Ian Kennedy at 45 and Andrew Brackman at 100 -- made the Law's top 100. That's 2 pitching prospects in the top 50 including Joba (the #1 in baseball) and doesn't include Philip Hughes who no longer qualifies as a prospect. Prospects are no sure thing, but we can't help but be optimistic about the Yankees future, especially since the list did not include Humberto Sanchez (who was ranked in BA's top 100 last year, but had Tommy John surgery) and Alan Horne, who was a first round pick out of high school before choosing college.

Law also ranks the prospects the Mets traded for Santana. Deolis Guerra was ranked 80 and Gomez 35. Humber and Mulvey didn't make the list. I think Law's list really put the Santana trade into perspective. The Mets got a steal. But they better win now, because after this trade only Fernando Martinez is in the top 100 (10). Their organizational depth is practically nil at this point.

The Wig Store in Flatbush II

2008-01-31T15:32:00.000-05:00

We've been wondering whether the students of Chaim Berlin could see the wig store display from the front of the building. ProfK claimed that she couldn't. Lucky for us someone (scroll to the bottom) decided to post a picture from the point of the Yeshiva closest to the store:

Blow up the picture to full size. I can only barely make out one of the heads and not very clearly. And this is at night, when the pictures have a back-lighting. During the day it is probably more difficult because the traffic is greater and the lighting doesn't have as much an effect.

To see this display, the bochurim have to make an effort. It is not right in front of them all the time. So I fail to see the difference between this store and anything on Ave. M.

Is G-d The Only Source Of Objective Morality?

2008-01-30T21:50:00.000-05:00

In this post I mentioned the philosophical problem that implicit in any legal or moral system that is predicated on Divine commands. In essence, a Divine command can only be binding if there is some outside force that binds us. In other words, there must be normative reason why we are obligated to follow G-d's will that exists independent of His will.

A little over a year ago, the Jblog world was abuzz about an article by Rabbi Avi Shafran where he claimed that without G-d we "have no reason to believe in objective categories of good and evil." He argued that absent G-d the world would be

"a place where the very concepts of morality and ethics are rendered meaningless, a world view in which a thieving, philandering, serial murdering cannibal is no less commendable a member of the species than a selfless, hard-working philanthropist."

In other words, without G-d there is no objective morality and everything is a free-for-all.

This argument relies on three important assumptions:

1) That we are capable of determining the content of that morality (the epistemic assumption).
2) That the content of that morality is "better" than any subjective morality (the metaphysical assumption).
3) That we are bound by that objective morality (the normative assumption).

These three assumptions are crucial. If there is an objective morality, but we have no means of learning our duties, then objective morality is useless and we are no better off than if morality was purely subjective. We wouldn't have any way of knowing if killing an infant is objectively good or bad. Furthermore, G-d's objective morality must really be more moral than any system of subjective ethics or it serves no purpose. It might be wrong to kill infants because G-d said so, but so what? It might also be wrong to kill infants because any random person came up with a system of morality. The objectivity of the system is only valuable if it leads to more moral results. Otherwise who cares if morals are objective or subjective?

Moreover, even if objective morality exists and we can discover that objective morality, we must be bound by that morality. If we can choose whether to be bound by that morality, we are no better off than if morality was subjective. Anyone can do whatever he wants.

I posted about this debate when it first happened, and my argument focused on the first assumption. There I argued that even if objective moral principles exist, man must apply to them to real situations and since reasonable people can disagree over how to apply these principles, objective morality is never completely objective. We can never really know what objective morality demands.

Notwithstanding the validity of that argument, I wish to challenge the third assumption here. Let me unpack its hidden premises a little more. The argument that only G-d can create an objective (and therefore meaningful) morality presupposes that we are bound by that Divine morality. It also assumes that moral duties can only exist if they are universal: they must apply to and bind everyone. What does it mean to say that an action is "good" or "bad"? "Good" actions are the ones that uphold a moral duty, "bad" actions are the ones that violate that duty. We have a duty not to murder infants and also a duty to help the poor. People who murder infants violate the former, while charity givers follow the latter.

But in what sense is a person violating a duty if he isn't obligated by it? Am I violating a duty to believe that Jesus is our savior? Or to kill infidels? The fact that a system exists which designates moral categories is meaningless unless I am obligated to follow that system.

So if I am not bound by G-d's moral system, then there is no objective morality in any nontrivial sense. There might be a system that claims to be objective, but so what? Hitler was only wrong (in Rabbi Shafran's view) because he violated his objective moral duty not to kill innocent humans. But if he wasn't bound by that duty, how could he be "wrong?" In that case, morality is inherently subjective in the sense that we are free to choose our moral obligations. If I am not bound by G-d's objective morality, then I can choose my personal subjective morality. So Rabbi Shafran's argument clearly presupposes that we are bound by some independent objective morality that exists apart from G-d's command or else we wouldn't be violating G-d's morality.

Perhaps one could respond that if the epistemic and metaphysical assumptions are correct, then objective morality is actually more moral, and we have an obligation to be moral. But what is the source of that obligation? If we aren't bound by G-d's morality, what obligation do we have to be moral? Some independent objective morality must exist that does not depend on G-d.

So Rabbi Shafran's argument is actually turned on its head. Rather than proving that objective, meaningful morality can only exist because of G-d, it actually presupposes that an independent morality exists without G-d! Without that independent morality, there can exist no useful, G-d given, objective morality. The argument fails on its own premises.

Some Israel Stuff

2008-01-30T14:21:00.000-05:00

A few thoughts on what's going on regarding Israel these days:

1) The Winograd Report came out today. The Report doesn't blame any particular individuals but lays the blame for the war's failure on the political and military leadership. The idea of going to war was a good one, but the execution, planning and communication between the IDF and political leaders were disasters, leading to at least the perception that Israel, the region's strongest power, lost to a quasi-military force.

Basically Lebanon II was Iraq II, but much worse. The Iraq invasion was at least carried out competently, even if the occupation and reconstruction were poorly done. By Lebanon, the entire process from beginning to end was a failure. Sure it's significant that Nasrallah declared victory from the rubble of a bombed-out village (only in the Arab world does victory mean "not losing"), but a regional superpower like Israel should have had a solid plan in case war with Hizbollah broke out. Apparently they didn't.

2) It looks like the UN Security Council won't be issuing a presidential statement about the Gaza situation. Apparently the US would not sign onto anything that equated responses to terror with the acts of terror themselves. Frankly these declarations are worthless, but they make it more difficult for Israel activists to defend Israel. It's not as easy as it looks to defend Israel when the other side can point to dozens of security council resolutions that Israel supposedly violated.

3) Israel's Supreme Court upheld Israel's right to blockade Gaza. This ruling reminds me of a book I read a number of years ago called The Occupation of Justice, written by David Kretzmer, a professor of law at Hebrew University. He argued that Israel's Supreme Court has generally deferred to the legislative and executive branches on issues relating to the territories. They were only strongly activist when it came to human and civil rights questions within Israel proper.

Off the top of my head, that seems pretty accurate. They haven't been deferential on every issue (but neither has the US Supreme Court) but they've been much more laid back than their reputation admits. For example, despite almost universal agreement among legal scholars who are not openly pro-Israel that the territories are subject to the Geneva Conventions, the Court has never ruled that way. They even allowed settlements that were not built on private Palestinian land (which is the majority of the territories) despite the fact that settlements are strongly opposed by the liberal elite in Israel. And even though the International Court of Justice ruled that the security fence violated international law, the Court took a much more moderate approach.

Of course in Israel itself the Court is extremely activist. They've tried to become the moral arbiters of Israeli society, which is unacceptable. But characterizations should be as accurate as possible.

Back To Some Sports

2008-01-30T11:04:00.000-05:00

I've been cutting back on sports a bit, but after the Santana trade yesterday, I feel like I have to comment.

The Mets got Johan Sanatana, the greatest pitcher in the majors and a guy with a higher career ERA+ than Cy Young, Christy Mathewson, Sandy Koufax and Randy Johnson without even giving up their top prospect. Keith Law has a report on the prospects they traded, and it doesn't seem like they gave up anyone top-tier. There was certainly no one in the same league as Hughes or Lester/Ellsbury, who were on the table in November. The Twins went from getting a package including one of the best pitching prospects in the majors and who is major league ready and a very young above average CF who is cost-controlled, to a deal that included only two really good prospects (and Deolis Guerra is very young) and no major league ready talent.

I'm very happy the Mets got Santana since that gets him out of AL and away from Boston's clutches. I was on the fence about trading Hughes at the time, but never would have agreed to include another top-tier prospect like Jose Tabata or Ian Kennedy. The biggest problem with acquiring Santana, though, would be the money and age. First, let's look at the possible extension. Santana rejected a 4 year 80 million dollar deal from the Twins last year. Santana is obviously looking for something well over 100 million. The largest deal ever offered to a pitcher is Barry Zito's contract of 7 years, 126 million, which breaks down to 18 million a year. I think 6 years 132 million is reasonable estimate of Santana's contract. 22 million a year is simply too much money for a pitcher, and especially one who is almost 30.

The age thing is also important. Pitchers tend to decline as they reach their mid-30s. In truth Santana might already be declining. His ERA jumped up last season, owing mainly to the bump in the home runs he gave up. His HRs allowed went from 24 to 33. His walk rate also increased.

Moreover, his ERA+ dropped from 161 to 130. Now 130 is a pretty good season, but the drop is alarming. Also his DERA jumped from 2.90 to 3.50, implying that the lower ERA+ was not a result of bad luck.

Does any of this mean that Santana is done? Of course not. He was still probably the best pitcher in the AL and maybe all of baseball last year. But he is getting older and will require the Mets to tie up their payroll for many more years. But for a team that hasn't won a world series in over 20 years, it might be worth it. For the Yanks and Red Sox, who have both won multiple world series in the last 10 years, not as much.

One a less timely note, I came across this post on FireJoeMorgan about the statistical probability that someone like Bonds would hit 73 HRs at the age of 38 . The guy estimates that the chances are 1 in 53 million! The season was so many standard deviations from the norm that the author had to search the web to find a chart that could fit the data because there were no charts like that in his statistics textbook. Bonds' performance was literally off the charts. The author's analysis really confirms our intuitions that Bonds cheated.

Morality and The Content of Halacha

2008-01-29T15:42:00.000-05:00

Yesterday, I posted about the interaction between morality and Halacha. In summary I viewed Halacha and morality as two independent systems, both of which are binding on Jews (and the latter on all of humanity). If we assume that Halacha is binding, its obligatory nature must derive from the authoritativeness of some other binding system, which is morality. Since both are binding, and morality dictates that Halacha be followed, Halacha can trump morality when the two conflict. However when Halacha abstains and imposes no obligation, morality takes over. If one has a moral duty in such a case, he cannot choose to ignore it and is bound by its obligation. I am using the words "duty" and "obligation" very loosely and am not taking a position on whether morality should be defined in utilitarian, deontological or virtue ethics terms.

My argument allows both Halacha and morality to retain autonomy. Halacha is completely autonomous because morality need not influence its dictates (at least not directly), except in the rare situation where Halacha requires an action that undermines its very authority. Morality is autonomous insofar as it demands adherence to Halacha and has its own authority when Halacha is silent. This conception of the working relationship between the two allows them to retain their own conceptual space.

Another possible view of the relationship is offered by Kant. Kant believed in an independent morality that was synonymous with reason. He believed that morality can be used as a tool to determine whether Divine commands come from a just and good G-d. He states,

"If God should really speak to man, man could still never know that it was God speaking. It is quite impossible for man to apprehend the infinite by his senses, distinguish it from sensible beings, and recognize it as such. But in some cases man can be sure the voice he hears is not God’s. For if the voice commands him to do something contrary to moral law, then no matter how majestic the apparition may be, and no matter how it may seem to surpass the whole of nature, he must consider it an illusion."

Kant's problem is that man has no reliable way of ascertaining whether the command comes from a good G-d or an evil G-d. How do we know that it is G-d telling us to do an act and not Moloch, who requested that mankind sacrifice their children? For Kant the answer is that a command from a just G-d would comport with reason. Any command that is immoral cannot be the directive of a good G-d and must be ignored.

Kant's use of morality in this case is epistemic. We know that it is G-d making the command by the fact that the command is moral. My view of the interaction between morality and Halacha is that morality serves as a normative basis. The practical difference between the two conceptions is that Kant requires that immoral commands be rejected, while I would at least accept the possibility that Halacha can demand immoral acts. Kant clearly considers morality to be the primary system; I view the two on equal grounds, with Halacha having primacy because we have a moral obligation to abide by G-d's commands (I am assuming such a reason exists, but I haven't offered one here).

So the difference is how to approach the content of Halacha. Halacha is not necessarily influenced by morality in my view (besides for a few situations), while Kant would allow morality to dictate the actual content of Divine commands by asking us to reject commands that are not consonant with morality.

The Wig Store in Flatbush

2008-01-28T20:55:00.000-05:00

Updated Below:

For the unaware, there is a wig store across the street from Yeshiva Chaim Berlin in Flatbush. The owner decided to place pictures of women wearing the wigs in his window. Since looking at women can cause impure thoughts, a few of Rav Aharon Schecter's (RAS) talmidim asked the store owner to remove the pictures from the storefront. His response was not too friendly, and RAS sent out a letter to the members of Chaim Berlin's mailing list, asking that people refrain from buying wigs from that store until the owner removes the offending pictures. Here is the text of the letter:

Dovbear is kind enough to provide us with a photo of the actual display:

Having spent almost my entire formative years in Flatbush, I can assure you that these pictures are representative of the attire of the average Flatbush woman. This isn't one store in the middle of Bnei Brak selling pornography; these are very common looks in Flatbush.

So if the students are exposed to this type of look all the time, why call for a boycott of this store? After a day participating in DB's comments, I've come up with three theories:

1) The pictures themselves are assur. The text of RAS' letter implies that they are pritzus (licentiousness) and they therefore must be removed since they are causing the students to have impure thoughts.

The problem with this theory is that Halacha allows women to go around with uncovered faces and many Poskim accept wigs as hair-coverings. As stated earlier, fancy wigs are common fare in Flatbush. So if the very idea of women wearing wigs cannot be assur, why would pictures of wig wearing women be assur?

2) There's nothing wrong with wigs per se, but these pictures do not belong in front of a Yeshiva.

This argument would make sense if the Yeshiva was located in a residential neighborhood away from stores and cafes. But it isn't. Coney Island Ave. is a major thoroughfare and intersects with Ave M, literally a block away. Ave. M is full of stores, restaurants and cafes, all of which are frequented by women with uncovered hair. All types of women walk or drive down the street on which Chaim Berlin is located. So what's different?

Perhaps the problem is that the pictures are always in front of the Yeshiva. Sort of true. From my understanding, they are located in a store on the other side of Coney, which is a 6 lane street (including parking lanes) that is generally very busy. The pictures are not right next door or on the sidewalk right in front of the building. Someone who wants to avoid looking at the pictures can easily do so.

3) The pictures are problematic, but it's the derogatory response to the student's respectful request that must be opposed.

Basically this argument is framed as defending Kavod HaTorah. These are the top students in a century old Yeshiva, and yet the owner dismissed them like school children. But is that true? RAS' only allusion to disrespect was that the owner told them Flatbush isn't Bnei Brak. I don't see how that is disrespectful. Flatbush has its own standards of tzniyus, and is under no obligation to become Bnei Brak.

Even if he said some other unseemly retorts, perhaps boycotting a store for a few comments isn't so prudent. Boycotts should be tools of last resort and not taken lightly. Is it really unreasonable to expect RAS himself to speak to the owner and try to work out a deal before calling for a boycott?

When it comes down to it, the students of Chaim Berlin have the obligation to not look at the pictures if they will generate impure thoughts. It is not the store owner's responsibility to accommodate them. Flatbush really isn't Bnei Brak. Anyone who thinks differently really needs to get out more.

Update: Check out this comment:

"So I went and stood in front of the yeshiva and looked directly across the street, and the wig store is not directly there; it is further down. So I moved to the point where I was directly across from the wig store and the pictures are not clearly visible from across the avenue."

I have never seen the store, but I am aware of the layout of that street, and my intuition is that the pictures are not clearly visible from the Yeshiva. Apparently I was right. But if the pictures are not visible from the Yeshiva, then how are they different than anything on Ave. M? Just tell the students to cross Coney by Ave. M instead of the middle of the street.

Morality And Legal Lacunae

2008-01-28T12:59:00.000-05:00

This is the third post in the series I started earlier (I, II) but not the post I promised. That's still in the works.

Rabbi Yitzchak Blau wrote an article a few years ago titled "Ivan Karamazov Revisited: The Moral Argument For Religious Belief." In it he dealt with the propensity of Kiruv organizations and educators to use the moral argument as a reason for believing in G-d. Basically the argument work like this: if G-d doesn't exist and didn't determine morality in the Torah, what makes something moral?

I remember watching a kiruv video on Tisha Ba'av a few years ago where the Kiruv professional made the same argument. If there is no G-d, why was Hitler wrong? Why is it wrong to commit genocide? That argument struck me as contrived back then, and even more so now.

But this post isn't going to try to explain the basis of an independent objective morality that does not depend on G-d. I will argue that such a morality must exist for the Torah to be binding and that morality can fill in the gaps where Halacha abstains.

One of Rabbi Blau's objections to this argument is that the solution doesn't solve the problem. Sure G-d can define morality and his Divine commands could be the definition of morality, but why are we bound by his commands? The fact that G-d commands us to do something cannot be a normative basis in itself. Why must we follow that command? R. Blau recounts Rav Saadiah Gaon's response to this problem: man is obligated to obey G-d as an act of gratitude for all that G-d has done for us. It seems Rav Saadiah's solution presupposes the existence of a morality that exists independently of G-d's command.

I don't see any other way. I'd like to make three points. For G-d's command to be binding there must be a morality that exists outside of his command. The morality need not exist independent of G-d, but it must exist outside of G-d's command. Furthermore this morality must be objective. If not, why can't any individual claim he isn't bound by G-d's command because his own morality doesn't dictate a normative reason to be obligated to listen to G-d's words? Last, that objective morality must bind us. If we can choose whether to be moral, we can choose whether to obey G-d. Therefore that morality must impose obligations upon us or the Torah isn't universally binding on Jews.

Moreover, it seems as if this morality is accessible to humans without divine intervention. Practically it is quite difficult to disentangle G-d's command from his epistemic guidance on moral issues. G-d theoretically could inform us that our moral intuitions point toward listening to G-d's command, but most divine statements are framed as commands and not guidance. So we must be able to determine our moral obligations without Divine assistance.

So if an independent morality exists, and humans are capable of determining their moral obligations without divine assistance (through reason), how does that affect Halacha? Is Halacha threatened by an outside objective morality? I don't think so, or at least not directly. Once we have a moral reason to listen to G-d, his command become binding, assuming the divine command doesn't contradict the original moral reason for G-d's command becoming binding. So, for example, if we are required to obey G-d because of gratitude, then nothing G-d commands can require us to contravene gratitude since that would undermine the entire basis of our obligation in the first place.

On the other hand, it is possible that G-d's binding command could order us to act against morality in other cases. If we are bound by G-d's command as well as by objective morality, then it becomes a question of which to choose. A reasonable person can choose the former, at least because G-d might be more qualified to determine what objective morality demands of us. So Halacha could trump morality in vast majority of cases.

But what about where Halacha does not impose an obligation upon us? To use a classic example, Halacha set up two different tracks about how to act depending on whether one's associate is a Jew. For example, if a Jew's ox gores another Jew's ox, he does not need to pay the full extent of the damages (subject to the damaging ox's status), but a non-Jewish owned ox must always pay the maximum damages. The Gemara itself in Baba Kamma recognizes that the disparity is morally problematic (at least from the perspective of the Roman auditors who were responsible to review Halacha).

If one posits that objective morality demands that a Jew not treat a fellow human being differently based on his religion, he could argue that a Jewish court should not impose different standards. The bare Halacha does not mandate that the Gentile owner of an ox must pay the full damages, only that Halacha does not afford him the leniency given to the Jew. There is no Halachic obligation to require a non-Jew to pay more than a Jew; there is just an allowance to be lenient by a Jew. In other words, the Halacha is just a minimum not a maximum. We can choose to give a break to a non-Jews as well. (If my Halachic analysis is incorrect, please let me know).

Since G-d did not command us to require full damages from non-Jews in all cases, we have a gap in the law. The law does not require us to act either way. In that case independent morality comes into play and if it requires treating non-Jews and Jew alike, non-Jews should no longer be obligated to pay complete remuneration.

Another example is telling Loshon Hara about non-Jews. A few months ago I had a long argument with Ed about whether it is acceptable to tell LH about Blacks. Ed argued that Halacha prohibits telling LH about Jews, but not non-Jews (which is true). Therefore we are allowed to denigrate Blacks. I disagree because the Halacha is setting a floor, not a ceiling. It does not command us to slander Blacks, but merely allows it. I believe the independent morality mentioned above can be used to fill this gap. If it is morally wrong to slander anyone (Jew or non-Jew) that morality requires us to forgo telling LH about non-Jews.

Basically the interaction between Halacha (i.e., Divine command) and morality can be treated like the relationship between federal and state laws. Federal law preempts state law, so whenever the two conflict, federal law reigns supreme. But where federal law abstains and doesn't dictate policy, state laws can fill the gap. So too with Halacha and morality. Halacha preempts morality, but where Halacha states no command, morality dictates what we can do.

Cloverfield

2008-01-24T22:56:00.000-05:00

Shifra and I went to see Cloverfield tonight. I loved it; she thought it was ok. I'm not going to give away too many spoilers, but if you want to see it with a clean slate, do not continue reading.

In fact, one of the best things about this movie is that I didn't know anything about it at all going in. I purposely avoided all reviews, and did not spend hours searching the web for hints about the monster. Apparently there was this whole storyline on the web about some Japanese company that may have accidentally created or awakened the monster. Well it wasn't mentioned in the movie, so I don't think the backstory is that important.

What I especially liked about this movie was the first person mode, which you'll either love or hate. The entire story is the tape from a video camera that was found in Central Park. Watching the film from the characters' perspective allowed me to feel the anxiety they were feeling as their city was overrun by a giant beast.

The monster itself is actually scarier before we see it. They could have done a much better job making look a lot more fearsome. But wow is it huge and destructive.

9/11 was definitely alluded to in this movie. There's a scene when a large building (I think it was the Empire State Building) is toppled, and we see the debris rushing toward the camera. It's almost right out of news coverage from that day.

Basically this was a very good movie and substantially scarier than I Am Legend. I actually thought it was also a much better movie. Definitely worth the price of admission.

What Can Women Do?

2008-01-23T22:34:00.000-05:00

I'm working on Part III of the science/Torah/constitutionalism series, but it's not ready yet.

Any debate on the blogs about Chareidi education for girls will always devolve into an argument about how Chareidi women are stifled and viewed as less equal than their husbands, fathers and brothers. Frankly, I think that argument is meaningful, as we should try to lay out what Chareidi Judaism or Orthodox Judaism as a whole consider valuable.

I have a number of problems with how Chareidi ideology views women (some, if not all, of these problems exist in the Modern Orthodox world as well). One issue is the primacy of Torah, but the prohibition against women learning Gemara, which is considered the highest level. In fact, I'm not even sure women's Tanach learning is considered valuable itself, rather than just as a means of indoctrinating girls. If a Chareidi woman penned a perush on Tanach, would any Chareidi Yeshiva even carry it? Even Nechama Leibowitz's work isn't carried or read in most Chareidi venues (I'd love to be corrected on this).

So the society values Torah learning as the highest ideal, but deprives its female members of participation in that endeavor. Women serve as enablers, helping their husbands or sons learn Torah. The Gemara in Kiddushin even says that women receive the merit of Torah by sending their husbands and sons out to learn and waiting for them to return. But what of women who never married? How do they merit protection?

In fact, what exactly does Chareidi Judaism have to offer an unmarried women? To be more precise, what can the deep Chareidi world, the society that denies women (and men) the ability to acquire a higher education, do for a single girl besides find her a husband? She can't have a career and is limited to working at a menial job. But since she isn't married, that's all she can do, unless she wants to teach, something not everyone is cut out to do. So what exactly is her purpose in life? At least an unmarried man can learn. She can't even do that. I guess she can do Chessed, but no one seriously values Chessed as much as Torah learning. So this woman is worse off than her male counterpart.

Moreover, Chareidi women carry the majority of the household burdens. I'm not just talking about doing the dishes or laundry. Women have to work full-time and then come home and take care of the kids/house. I hope the men help out when they aren't in Yeshiva, but I'm not very optimistic.

The Modern Orthodox world doesn't suffer from these problems as much. Firstly, some promote Gemara learning for even women, but even when they don't, they recognize the value of women's Torah learning. Second, MO men are usually more cognizant of the need to help out around the house. We tend to be more involved with culture, and our culture promotes a greater amount of burden sharing. Lastly, they allow people to find a career, so the woman can be fulfilled by her work. There are more choices. I'm not saying MO society doesn't have these problems also (as well as its fair share of other problems), but I think it has done a lot to mitigate them.

In essence that's the primary function of society: to provide choices. Most people do not fit into a mold and must be given options. Forcing all women into the homemaker/secretary mold cannot be a successful.

Living Constitutionalism And The Science/Torah Debate Part II

2008-01-22T11:16:00.000-05:00

Yesterday I wrote about an important debate I had about the conflict between science and Torah. Today I want to talk about a second debate, and how it has come to influence my thinking on Judaism.

About two months ago Noyam responded to a challenge to provide an "intellectually honest justification" for a living constitution. It's not Noyam's response that is important for this post (although I suggest you read it because it is quite good) but rather my take on the Living Constitutionalism (LC)/Originalism debate. The debate got me thinking about the issue I'm going to post about. But first a little background is in order.

As long as our Constitution has existed, there has been a debate how to best interpret it. Today there are number of schools of thought, but the two most popular interpretative methodologies are Originalism and Living Constitutionalism (LC). Put very basically, Originalism argues that the Constitution should be interpreted according to its original meaning, which is how the people at the time understood it. LC, however, believes that the meaning of the text should evolve over time to coincide with the moral values of the populace at any given time. I'd like give an example, but the originalist camp has become so large, and the disagreements within the camp so profound, that it's hard to find a case where Originalism and LC clearly reach opposite conclusions.

But I'll try. Many originalists believe that the Constitution does not protect a right to abortion. The Supreme Court in Roe v. Wade found a right to abortion in the 14th Amendment's Due Process Clause. They argued the states could not impinge on a person's liberty right (which, partly based on precedent, they interpreted to mean any law that infringes on a fundamental right). Since they believed that the right to have an abortion was derivative of the right to privacy, which was a fundamental right, they held the state could not ban abortions unless they had a compelling interest. The state had such an interest when protecting a viable fetus or the mother's health, but they could not ban first trimester abortions.

This reasoning coincides with LC. The term "Liberty" is ambiguous. While Liberty in the 19th Century might have not included the right to terminate a pregnancy, today's moral standards do (let's leave aside the question whether that is actually true). We should interpret the Constitution to accord with our standards today, not the views of 18th Century men.

Many Originalists look at Roe as the paradigm of constitutional interpretation gone wrong. If the Constitution is supposed to be interpreted according to its original meaning, and the term "Liberty" did not include a right to abortion when the 14th Amendment was enacted (as evidenced by the restrictions on abortion during that time), then the Constitution cannot prohibit abortion.

Originalists make a number of arguments in support of their theory, but they most often make a normative argument. Everyone would agree that judges cannot just disregard laws. No LC would allow a judge to completely ignore a law because he didn't find it to be moral. Why not? Because when laws are enacted, they are the will of the majority of our citizens and judges do not have the power to simply disregard laws legislated by society. If that's true, then they cannot disregard the meaning of the laws either, because doing so would be no different from ignoring the laws themselves. And the meaning of the laws were what the laws meant at the time they were enacted because that's what the laws were designed to mean. So changing meaning is the logical equivalent of changing the actual laws.

The simple (and weak) response, which is the one heard most often, is that the Constitution was written hundreds of years ago in a very different time. We cannot allow an 18th or 19th Century moral understanding to dictate the meaning of the terms in the Constitution. The Constitution must be flexible or it will become irrelevant. Originalists have a good response to this problem: amend the Constitution. If you want to protect a woman's right to choose, then amend the Constitution to include such a right. Believe the Bill of Rights applies to the states? Amend the Constitution to bind the states. And so on.

At this level, the Originalist clearly has the upper hand. If the Constitution is binding on us, we cannot just change its meaning, especially when the Constitution itself includes a mechanism for making that change. The fact that the Constitution might be antiquated isn't very relevant.

But that's the whole question: why assume the Constitution is binding on us? My generation never ratified it, and I surely never did. It was written by white, landowning males over 200 years ago. Many Americans, if not most, are descendents of people who immigrated to the US long after the Constitution was ratified. So why should it bind us?

This is a very serious problem, and one which the majority of Originalists (though not all) simply gloss over. The LCs, however, have a solution. They argue that the Constitution itself isn't actually binding because it lacks a normative basis. We are not bound morally because we never consented to its authority. So what gives it its normative basis? The Constitution is normatively binding if its interpretation imposes a moral obligation. Assuming we are bound by moral obligations, the Constitution becomes binding if its clauses are moral. The judge's task, then, is to interpret the Constitution in a way that imposes a moral obligation upon us.

So let's assume that the moral view today is that women have a right to abortion. The state then passes a law banning all abortions. Such a law can be struck down if the Constitution is interpreted morally; if the 14th Amendment's Due Process Clause is interpreted morally, the "Liberty" element will mean "the right to terminate a pregnancy." We will then have a moral obligation to allow women to abort and that obligation will overrule our personal opinions that women should not be allowed to abort.

There is a lot more that can be said on the legitimacy of LC or on whether Originalism is a superior method of constitutional interpretation, but that's for another post. Now I wish to talk about how Living Constitutionalism and the science and Torah debates are related.

What's the connection between my argument with FKM and the LC argument? Both FKM and most Originalists start with an assumption that is insulated from challenge and then start their arguments from there. FKM starts with the assumption that the Torah is divine and Originalists assume the Constitution is binding on everyone. If we start at that point of the argument, the opponent begins at a large disadvantage.

But if we challenge those assumptions, the argument will take a different turn. Both LCs and Orthodox Jews believe those assumptions are accurate. All Orthodox Jews believe the Torah is divine (in some sense at least). All LCs believe the Constitution is binding to some extent (if they didn't, why would we engage in the charade of constitutional interpretation?). Where they disagree with their opponents is why. First we'll look at LCs. LCs, as related earlier, believe it is binding because its interpretation results in moral obligations. Therefore they allow the normative basis to influence how the Constitution is interpreted.

This might be very abstract so I'll compare the LC view to Randy Barnett's understanding of the normative basis of the Constitution. Put simply, Barnett believes the Constitution is normatively binding because its original meaning leads to just outcomes. If that's true, the Constitution must be interpreted with an eye towards effecting just outcomes. In Barnett's view, adhering to the original meaning will lead to the most just outcomes as a whole. So Barnett's method of interpretation is greatly influenced by what he considers the Constitution's normative basis. In other words the second step of the argument (interpretation) is directly derived from the first step (finding legitimacy). LCs do the same thing, but tie the two steps into one. The second step (interpretation) is the first step (legitimization).

The same idea applies to the science and Torah debates. How we understand science's relationship with Torah must be influenced by what basis we have for the Torah's divinity. Remember the only reason to ignore creation science is because the divine Torah trumps its reliability. Our belief in the divinity of the Torah must be more justified than our belief in the reliability of creation science, or we cannot legitimately choose Torah over science. All Orthodox Jews believe the Torah is divine, but what is the basis for that belief?

I believe the Torah is divine because I have faith, but others might argue we should believe it to be G-d given because of sense experiences. Either way, unless our basis for our belief in the Torah's divinity is stronger than the basis of our belief that the universe is billions of years old, we cannot choose Torah over science.

Opponents of a more liberal approach to this issue put the question of the Torah's divinity in a black box and start the argument at step two. Step one is determining a basis for the belief of the Torah's divinity. Step two is arguing how to relate a divine Torah to scientific truths. Step two must relate to step one. There is no other way.

Tomorrow I hope to post about how step one and step two relate.

What The Science/Torah Debates Have To Do With The Living Constitution

2008-01-21T12:36:00.000-05:00

Spurred on by Gil's post about searching for a justification for religion, I'm going to write a few posts about a number of ideas that have been floating around my head recently. That doesn't mean I won't write about the Yankees or the Hall of Fame anymore (I've been meaning to write a series of posts about the HOF), but I'm going to focus on more theological issues for the time being.

About a month ago, I engaged in two seemingly disparate debates. The first, on Hirhurim, was with the Chareidi blogger Frum Kiruv Maniac about the age of the universe and biblical literalism. FKM has been one of the strongest opponents of Slifkin's attempt to reconcile Torah with current scientific evidence and has opposed any attempt to reinterpret what he believes is a consistent Mesorah of supernatural creation. He believes that since the Torah claims the creation was supernatural, any attempt to understand the origin of the universe naturally is bound to fail, and using this flawed scientific method to understand G-d's act of creation is doomed from the start. Therefore there is no reason to allegorize Bereishis because the science used to a reinterpret the text is fatally flawed.

My response can be found here reposted on FKM's blog. I have to give him a lot of credit for publicizing this exchange since it was buried in the comments of an old post and never would have seen the light of day otherwise. My essential argument was that a large number of Orthodox Jews base their beliefs on the historical strength of the Kuzari Principle (KP), which is basically a historical argument. But science and history are similar methods; both work with data and both make inferences based on reasonable data. When a supporter of the KP opposes Slifkin on the grounds that the latter's approach is flawed because science makes unreasonable assumptions, he is being inconsistent. In what way is creation science flawed and how is that flaw not evident in ancient history, especially the KP? Is science's assumption of consistent laws really less justified than the idea that millions of people can't be tricked? If not, why choose history over science? Why not go the other way?

Meaning why start with the assumption that the Torah is true, rather than start with the assumption that science is accurate? Sure if we start with the assumption that the Torah is true, then we can debate whether there are legitimate reasons or sources that allow for allegorization. But why start with that assumption?

I wish I could take credit for this argument, but I owe a debt of gratitude to Little Foxling and Kenneth Einar Himma. I was playing devil's advocate with LF about the Gosse Theory and whether someone could be a supporter of the KP and Gosse and still be consistent. He argued that since the KP is based on experience, how could KP adherents support Gosse, which denies the accuracy of sense experience? I responded that if someone assumes G-d exists and the Torah is true, then Gosse is the result of sense experience. If the Torah is relaying a truthful account of the creation story, and it states that the world was created in six days, then the result of analyzing and weighing our sense experiences is that the world was created in six days less than 6000 years ago. We've basically chosen to believe the Torah over science. (This argument isn't mine either)

LF picks on that point. He argues,

"If we presume, as the Gosseist does, that the fossils really do contradict the Kuzari proof, then just as the Kuzari proof is sensory perception that contradicts the fossil evidence of an old universe, so too, by definition, the fossils are sensory perception that contradict the Kuzari proof. So, if you are wiling to reinterpret the sensory perception of the fossils in light of the Kuzari sensory perception, why not reinterpret the Kuzari sensory prescription in light of the fossil sensory perception?"

Basically his argument is that the Gosseist has chosen to accept the Torah (via the KP) over science arbitrarily. Both the KP and science are based on sense experiences, yet the Gosseist, for no real epistemic reason, chooses the former over the latter.

Professor Himma's article (not available on-line but I have a copy if anyone wants it) argues that the Argument from Design cannot be sustained without "help" from another argument. Put simply, the Argument from Design is that all our experiences teach us that complex objects require designers. If we were walking in the desert and saw a watch lying in the sand, we would assume the watch was made by someone and dropped there. We wouldn't think the watch was just a bunch of pieces that came together on their own to form a complex machine. Certainly in the case of the infinitely more complex universe we should posit the existence of a creator.

Himma's response is devastating (Richard Dawkins responded to the Watchmaker Argument scientifically). We only assume the watch was created because we know that people capable of creating watches exist and that said people have the motivation to create watches. In other words, we have evidence that a designer exists and could have designed the watch. Without that evidence we would not be justified in accepting the design theory over the chance theory.

But in the case of the universe, we do not have evidence of a designer within this argument (there is evidence for a designer, i.e., G-d, but that evidence cannot be derived from the Argument from Design). The chances that the universe happened spontaneously are low, but they are not zero. On the hand, the odds that a designer exists and could have created the universe are unknown because we don't know that such an entity even exists. We are more justified in accepting a known, but low, probability over an unknown probability.

What do both these arguments have in common? Both require us to recognize that we're making a key, but unjustified, assumption and thereby rigging the game. LF's argument forces us to recognize that the the assumption that the Torah is true must be backed with support and cannot be taken as a given in science and Torah debates. We can't just assume it is true and work from there. Himma's point that the Argument from Design cannot stand on its own shows us that the assumption that complexity implies a designer is flawed when we have no evidence of a designer. We cannot assume what we are trying to conclude.

So how does any of this relate to the Living Constitution question? What is a living constitution? I think the link is very important, but this post is already pretty long, so that's for the next post.

More Dominant Than Rivera? Don't Make Me Laugh

2008-01-07T21:53:00.000-05:00

I write this post as a Yankee partisan, as someone who considers Mariano Rivera the greatest reliever in the history of baseball.

Tomorrow we find out the members on the 2008 HOF class. Jayson Stark, like every other baseball writer on the planet, wrote an article arguing for the inclusion of a number of players, especially Goose Gossage. I'm not going to comment on whether Gossage deserves admittance or not. Rather, I will focus on one of Stark's arguments in favor of Gossage being admitted.

Stark argues that Gossage "was the most dominating closer ever." Certainly the property of "dominating" is inherently nebulous, so it's hard to get a handle on the specifics of Stark's point. Stark decides to strengthen his argument for Gossage by comparing him to Rivera, since everyone knows Rivera is a sure-fire, no-brainer, first-ballot HOFer. Stark compares Gossage's first 11 full seasons as a closer to Rivera's 11 seasons since he became the closer for the Yankees:

"Want to pick a category? Be my guest. ERA? Gossage 2.21, Rivera 2.35. Strikeouts? Goose 8.54 whiffs per 9 innings, Rivera 8.09. Unhittability? Gossage 6.59 hits per 9 innings, Rivera 7.17."

Immediately two things struck me. First ERA alone is not entirely useful because it doesn't adjust for park effects and league differences. ERA+ is a much more comprehensive statistic in that regard. Number 2, Stark left out walks, which seems to be a pretty useful indicator of dominance. Perhaps he meant dominance is the sense of Nolan Ryan, who struck out an insane number of batters, but also walked a large number. So let's focus on ERA.

I decided to run the numbers. Not exactly sure which years Gossage was using, I picked the first 11 seasons Gossage served as a reliever (1975, 77-86). I took his innings and runs and calculated ERA. Since we both got 2.21, we're probably using the same years.

I then did the same thing for Rivera. Working with 97-07, I came up with 2.12. Since Stark calculated Rivera's ERA during his 11 seasons as a closer at 2.35, I thought my numbers were wrong. Then I realized that 2.35 is Rivera's career ERA, which includes one season as a bad starter and one as a dominant reliever. So basically Stark compared Gossage's ERA from his peak seasons with Rivera's career ERA. That's disingenuous if you ask me.

Next I looked at ERA+. It should be noted that Rivera's career ERA+ (194) is the highest ever for any pitcher with a substantial number of innings under his belt, and will be highest of any pitcher who threw 1000 innings after this season barring injury. But just using his 11 seasons as a closer, his ERA+ was 222. Gossage's? 198. That's 24 points higher for those keeping score at home. Over the course of a career that's the difference between Johan Santana and Rick Aguilera.

Next I decided to look at each pitchers defense independent ERA (DERA). BP's stat attempts to sever defense from pitching and list the ERA each pitcher would have had in front of an average defense, as well as account for league and park. Gossage's ERA over those seasons was almost exactly 3. Rivera's was 2.26. That's almost .75 of a run or over a career is the difference between Christy Mathewson and Sparky Lyle.

Stark's one legitimate point is that Gossage threw more innings over those seasons. Rivera only threw an average of 71 innings, while Gossage pitched almost 95. That 25 inning advantage is significant and definitely is an edge to Gossage. But it's not an edge that can make up the extremely large differences in ERA+ and DERA.

In fact another BP stat may be of assistance. BP uses a statistic called Pitching Runs Above Replacement, which measures how many runs a pitcher saved over a replacement player. Over those 11 seasons, Gossage saved an average of 60.2 runs above replacement. Rivera saved 67.5 runs. Per inning, those numbers aren't even close with Rivera saving .953 runs and Gossage .634. But since total numbers take into account the innings pitched, Rivera's advantage shrinks to around 7 runs a season. But 7 runs a season is not a trivial amount.

Look, it's not the Mariano Rivera Hall of Fame, so Gossage doesn't need to be Rivera's equal to make it. But these ridiculous (and somewhat misleading) comparisons do not serve to advance Gossage's cause.

Update: I did a little more research and realized that Rivera's Hits/9 and SO/9 were also based on career numbers. But in those categories even Rivera's closer years do not stack up to Gossage's first 11 seasons as a closer.

I also decided to look at Billy Wagner, who has been very dominating as a closer, even according to Stark's criteria. Taking Wagner's 11 seasons as a closer, he has a 11.8 strikeouts per 9 innings and allowed only 6.2 hits per 9 innings. His ERA, however, is only 2.40 (189 ERA+), so Gossage wins in that category. But Wagner struck out more than three batters per nine innings, and gave up .3 less hits. It's not that clear that Gossage was a more dominating closer than Wagner.

The Pats Are The Real Deal

2007-12-31T12:07:00.001-05:00

That's obvious after they completed their historic 16-0 season against the Giants on Saturday night. The Pats became the first team since the league went to a 16 game schedule to finish with a perfect record. Not only that, they finished with a point differential of 315 (19.8 per game), which topped the 291 differential posted by the 15-1 Bears in 1985.

One perceived objection to the Pats' dominance is their schedule. They played in the AFC East, a division with the 4-12 Jets and 1-15 Dolphins. Even the 7-9 Buffalo Bills gave up 100 more points than the scored. So for all intents and purposes the Pats had six gimmie games against very weak competition.

But is the schedule as easy as it seems? Let's look at what the Pats did this season:

1) They beat the Colts and Cowboys, the second and fourth best team in the NFL based on record and point differential on the road.

2) They topped the other two division leaders (11-5 Chargers and 10-6 Steelers) by an average of 22.5 points.

3) They played the NFC East, far and away the best division in the NFC, and beat two other NFC playoff teams (Giants and Redskins), one of the road.

4) They beat the Browns, a 10-6 team that probably would have made the playoffs in the NFC (sorry Ezzie).

So to summarize, they beat 6 playoff teams this season (3 on the road), and also the Browns who just missed it by the tiebreaker. That's a tough schedule, AFC East or not.

Here are some other interesting tidbits.

1) The Pats gave up the fourth least points and yards in the NFL, and were tied for 1st in points before this past weekend.

2) The Pats' point differential per game (19.8) was better than the Titans' points per game (18.8).

3) The Pats won more games than the rest of their division combined. Despite the Jets, Dolphins and Bills combining for only 12 wins, the AFC East won more games than the AFC West, NFC West, and NFC South.

4) The Pats' 315 point differential was twice as large as every other team in the NFL besides the Colts.

The Colts/Pats AFC Championship game could shape up to be one of the best football games in NFL history.

Can We Mandate Belief?

2007-12-18T21:04:00.000-05:00

Rabbi Yitzchok Alderstein has a post up today about the Ikkarim and the limits of our belief. As most people who read JBlogs are aware, Marc Shapiro wrote a book a few years ago about the Ikkarim, arguing that there isn't the broad consensus that Orthodox society pretends there to be. Rabbi Zev Leff responded with an unfavorable review in the current issue of Jewish Action.

Regardless of which Ikkarim are binding, we need to ask why how any beliefs can be considered mandatory. Beliefs have truth values: either they are true or they are false. My belief that I am typing a post right now is true. If I believed that the sun didn't rise today, that belief would be false. There isn't any middle ground.

So formalizing beliefs and requiring us to believe them seems to run contrary to the idea that we should search for truth. Mandating that everyone believe something requires an individual to accept a belief even if he feels it is unjustified. If the goal of inquiry is truth, then this system runs contrary to the whole epistemological enterprise.

The standard response to this problem is that Orthodoxy requires certain actions, even if a member of the society feels the action is wrong. If a majority of poskim believes that an action is required or prohibited, we must follow their ruling. If Orthodoxy can require action, why can't it require belief?

Many people reject the comparison between action and belief. Action is elective; we can choose whether to act in a certain way. But belief is involuntary because we cannot make a conscious choice about what to believe. I can't choose to believe that a car is speeding down at me while I stand in the middle of the street. I'll either believe it or I won't. There's no choice involved.

I don't like this response because it gets into difficult philosophical questions about the nature of our beliefs. There is a whole debate in Epistemology about Doxastic Voluntarism, which presumes that we can choose our beliefs. I'd rather not have to settle this debate.

I believe the analogy because action and belief is flawed on a more fundamental level. As I mentioned earlier beliefs are supposed to be the result of an inquiry for truth. When engaging in belief formation, we have as our goal the search for truth.

Halacha, however, is not the search for objective truth. We do not rule like the majority for epistemic reasons, i.e. the majority is more likely to be correct. As the Oven of Akhnai story tells us, we would still hold like the majority even if G-d himself told us the objective truth is the opposite. Determining Halacha is a substantive human practice and not a search for the divine truth.

Now we can see why the analogy doesn't hold. Halacha isn't about searching for truth and is determined by the majority. Once the majority decides a question, the "right answer" is that decision. There is no ontological gap between the decision of the majority and the correct answer. Belief though cannot be determined by majority. Belief is supposed to correlate to one single objective truth. Requiring that people believe something that isn't true goes against the whole point of the search for truth.

Rabbi Slifkin in a comment on that post makes a good point. He distinguishes between beliefs being wrong on a theological level and their acceptance being required for membership in a community. A belief might not be wrong per se, but a community can decide that its members share certain core beliefs. Anyone who holds other beliefs might be correct in the truth sense, but cannot be a part of that society.

Rabbi Slifkin's pragmatic argument resolves some of the problem. When we formalize the Ikkarim we are not saying that people with contrary beliefs are incorrect. We are merely denying that they can be part of Orthodox Judaism. Orthodoxy has drawn its red-lines and for better or worse these are the choices it made.

Note: I am not saying Rabbi Slifkin would agree with anything I said here. So don't brand him a heretic because of me. :=)

The Best Offensive Team in The AL

2007-12-05T13:50:00.000-05:00

UPDATED BELOW:

After yesterday's megatrade, I started to wonder if the Tigers were the best offensive team in baseball. The Tigers were very good last season -- only second to the Yankees --and now they added one of the best hitters in the majors. So do the Yankees still hold the top spot?

I decided to compare the most likely lineup of the two teams using EQR, which is EQA represented in actual runs (see here). This lineup will not be entirely realistic for two reasons:

1) I'm going to use last seasons numbers, so I'm not taking into account regressions to the mean positively or negatively. We can safely assume Jorge Posada will decline somewhat as will Magglio Ordonez, and Jeter will probably play better next year. My system isn't going to take that into account.

2) I'm assuming everyone in the lineup will play 162 games. Obviously no one will do that, and some players are far less likely to play an entire season than others (Giambi won't even break 100).

Here's what I did. I took the player's EQR from last season, divided it by the number of games played and multiplied by 162. I then added up all the runs for the total runs produced by the lineup. Ready?

Here are the two respective lineups.

First the Tigers.

(Scroll down to see the tables because Blogger is making me crazy)

Detroit Tigers:

Player	EQR Per Game	EQR Over 162 Games
Curtis Granderson	0.772151899	125.0886076
Placido Polanco	0.704225352	114.084507
Maggilio Ordonez	0.898089172	145.4904459
Miguel Cabrera	0.796178344	128.9808917
Gary Sheffield	0.714285714	115.7142857
Carlos Guillen	0.655629139	106.2119205
Edgar Renteria	0.701612903	113.6612903
Jacque Jones	0.407407407	66
Ivan Rodriguez	0.449612403	72.8372093
	6.099192334	988.0691581

Now here are the Yankees.

New York Yankees:

Player	EQR Per Game	EQR Over 162 Games
Johnny Damon	0.574468085	93.06382979
Derek Jeter	0.705128205	114.2307692
Bobby Abreu	0.664556962	107.6582278
Alex Rodriguez	0.974683544	157.8987342
Hideki Matsui	0.699300699	113.2867133
Jorge Posada	0.777777778	126
Robinson Cano	0.63125	102.2625
Jason Giambi	0.506024096	81.97590361
Melky Cabrera	0.5	81
	6.03318937	977.3766779

As you can see, the Tigers project to finish 11 runs better than the Yankees. ~~There are a lot of factors that I haven't accounted for, but it's safe to say the Tigers are going to be at least as good offensively as the Yanks next year and will probably be better.~~

Update: It seemed unfair to only use last year's stats, so I decided to take an average of the last three seasons stats and use those numbers as a projection. Not perfect, but better. I'm not going to make another table, so I'll just list the total numbers.

Tigers:

Per Game: 5.762857783
Over 162: 933.5829608

Yanks:

Per Game: 6.140102444
Over 162: 994.696596

And for fun here are the Red Sox. I used Ellsbury, Pedroia, Ortiz, Manny, Youkilis, Drew, Lowell, Varitek, and Lugo:

Per Game: 5.830537782
Over 162: 944.5471207

I also wanted to run the Indians numbers but unlike the other three teams, it was hard to figure out who are the primary 9 players. Hafner, Sizemore, Blake, Peralta, Martinez and Garko are clearly everyday players. But who are the other three? I came up with a few different lineups. One used Barfield, Lofton, and Gutierrez. That lineup scored:

Per Game: 5.312430512
Over 162: 860.613743

The other substituted Asdrubal Cabrera for Josh Barfield and Trot Nixon for Franklin Gutierrez:

Per game: 5.529906373
Over 162: 895.8448324

The second lineup was the best offensive configuration I could come up with.

So it looks like the Yankees should have the best offense in baseball this season. I believe 3 years is a legitimate amount of time to use as a reference, and the Yanks come out way ahead. While other teams certainly have better pitching, the Yankees offense should carry them to the playoffs.

Runs Above Replacement and the Ruth/ Bonds/Williams Debate

2007-11-29T11:29:00.000-05:00

After yesterday's foray into WARP3 and the 150 threshold, today we'll look at the three greatest players ever based on Runs Above Replacement per game (RAR/G). Baseball Prospectus keeps track of Batting Runs Above Replacement (BRAR), and Fielding Runs Above Replacement (FRAR). It also uses a stat called Pitching Runs Above Replacement (PRAR), but the metric is obviously very, very different and not useful to compare pitchers to hitters. I'm going to compare the three greatest players ever based on RAR/G. To show the differences between the players, I'll multiply their per game number by 5000 to get a total.

Conventional wisdom considers Babe Ruth, Ted Williams, and Steriods Barry Bonds the best three players ever. I will try to ascertain how great each player would have been without his "special" circumstances: Ruth being a pitcher for the first six years of his career, Williams fighting in two wars -- including WWII during his absolute prime -- and Bonds using the juice. Here we go.

Career Value

1) Babe Ruth - I think we all know his story. Ruth pitched primarily until 1920 (although he played a number of games in LF in 1919, his last year in Boston). Let's look at his total BRAR plus FRAR. His total RAR was 1877, which divided by his 2503 games is a RAR/G of .749 or 3750 RAR over 5000 games. That's the best ever.

Let's say we ignore his pre-Yankee seasons, then he had a total of 1648 RAR in 2139 games. His per game number was .770, and his 5000 game mark is 3852, which is almost 200 runs better than the next best player.

The problem is that Ruth's first seasons were valuable and he might have made the Hall as a pitcher. However, it's very hard to compare pitchers and batters. So what can we do to more accurately reflect Ruth's career?

Well at the very least we could give him the non-pitching RAR for his season in 1919. He played 130 games and had 115 BRAR plus FRAR for a .884 RAR/G. If we add the RAR and the games to his career totals, that bumps up his total RAR/G to .776 and 3885 over 5000 games. That's an amazing total.

What about the rest of his Red Sox career? He played 4 full seasons prior to 1919 in which he accrued 112 runs in 256 games for a per game average of .437. That's not awful by historical standards, but it way below Ruth's career numbers. We can't just assume Ruth would have put up his 1919 or 1920 numbers when started at the age of 19 in 1914, but we also can safely assume that if he wasn't a starting pitcher, he probably would have been closer to his 1919 season than his 1915-18 seasons. Since Ruth comes out head and shoulders above everyone else, there's really no reason to speculate too much. We can safely assign Ruth the spot as the best player to ever play Major League Baseball.

2) Barry Bonds - His steriod years really helped him out, but he was a great hitter before steriods and was always a great fielder. .725 RAR/G, which is 3627 over 5000 games and the second best ever. Interestingly if we only took Bonds' first 15 seasons (before we have evidence of steriod use), his per game numbers are still better than Williams'. 1494 RAR divided by the number of games he played (2143) = .697. Multiply by 5000 and we get 3486, which is still better than the mark Williams put up. Bonds probably would have played a few more seasons at less than average peformances, so his RAR/G would have dropped. Would it have gone down enough for Williams to catch him? That's the big debate. Anyway, Bonds was a HOFer before the steriods, no question about that.

3) Ted Williams - Williams was an amazing hitter who lost 5 prime years to WWII and the Korean War. He a .661 RAR/G and 3309 RARs over 5000 games. The gap between Williams and Bonds is larger than the one between Ruth and Bonds. Williams' RAR would have been higher if he hadn't missed prime seasons in the military and, as we have seen, Bonds' would have been lower if he wasn't juicing.

In fact, let's try to figure out where Williams would have been had he not served his country. He missed three whole seasons 1943-45. Those weren't just any 3 seasons; 42 and 46 were his two best years according to WARP3 and RAR. So let's assume he would have performed as well from 43-45 as he did in 42 and 46. Williams' total RAA in those two years was 277. He played 150 games in both years, so he averaged .923 RAR/G in those two seasons. Assuming he would have played 150 games in the three missing years, he would have added another 416 RAR to his career numbers giving him 1933. Add another 450 games to his career games played total and he would have played 2742 games. RAR/G= .704, multiplied by 5000 is 3525.

But we can't stop there. Williams also missed major chunks of 52 and 53 in the military. He barely played 50 total games and under weird conditions, so let's throw those numbers out. Let's perform the same experiment. In 51 and 54 he totaled 178 RARs over 265 games or .671 RAR/G. So he should have added another 178 RAR to his career. Where does that leave him? With 3007 games played and 2111 RAR for an average of .702 per game and 3510 over 5000. Still worse than juicing Bonds but better than Bonds before the steriods.

So it's safe to say that Ruth is the best player followed by Bonds and then, trailing very closely behind, Williams. Bonds vs. Williams is very close, so it depends on how much people value Williams' missing years and Bonds years on steriods.

Peak Value

Quickly, it'll be fun to compare Ruth vs. Bonds in peak value. We can't really include Williams because his peak years were spent flying fighter planes for the U.S. military. So let's take Bonds steriods seasons (2001-04) and see how they compare to Ruth's best 4 consecutive year period.

During those four years Bonds accrued 542 RAR in 573 games. That's .945 per game and 4730 RAR over 5000 games. Not bad.

What about Ruth? Ruth's best consecutive seasons are 1921-24, when he garnered 524 RAR in 567 games for a per game rate of .924 or only 4621 RAR in those years. So yes, Bonds' steriods seasons are probably the best four consecutive seasons in the history of major league baseball.

If we take each players best five seasons the equation changes drastically. Bonds best 5 seasons were 1992-93, and 01-03. In those five seasons he had a total of 691 RAR in 725 games for a per game average of .953 or 4766 over 5000 games. That's a little better than his best four steriods seasons.

Ruth's best five years, 1920-21, 23-24, and 27, are amazing. He scored 732 RAR in 750 games and his average per game was .976 and over 5000 games it was 4880. Just unbelievable.

One last thing. Imagine Williams played those 3 seasons for 43-45. If everything remained equal, he would have played 750 games over those 5 seasons and scored 692 RAR. His total over 5000 games? 4615. Not bad, but Bonds is better. So peak value we'd have to go with Ruth, followed by Bonds and then Williams.

150 WARP3 Guys

2007-11-28T16:43:00.000-05:00

I've been blogging less about sports recently, but the Raines post got my creative juices flowing. It's the off-season and there's nothing going on (well except the A-Rod saga, Santana being traded to NY for the entire farm system and Cano and the Bonds' indictment), so now is a good time to continue my "Derek Jeter for the Hall" series. Yes, I know, awesome.

As the season stands, Jeter has a WARP3 of 99.8. Remember WARP3 measures wins over replacement player and adjusts for position, ballpark, and era. So basically it's a very comprehensive stat.

Now 99.8 isn't that good. If Jeter retired today, I'd say he would be a borderline HOFer. But let's assume he plays 7 more seasons, or until he's 40. Right now he has played 1835 games. So his WARP3 per game is .0543 (which, by the way, is higher than every single player on the list I provided yesterday). Jeter has been a pretty healthy guy, and has only played less than 148 games once. So let's assume he plays 145 games per year over the next 7 seasons, which is 1015 games. If he plays at the same rate he's played until now, he would add 55.2 WARP to his total, which would leave him with a clean 155 wins above replacement player for his career. If he played only 140 games per year he'd only add another 53.3 WARPs, and he'd end up with 153.1.

The question now is how many players in the history of baseball have accumulated a 150 WARP3. 150 is a pretty high threshold, and there are a number of guys who are in the HOF who never came close. Sadly, I can't find a list of 150 WARP3 players, and I don't have the patience to go through every single player in the Hall to see their WARP3.

So let's look at the guys from this list. The list contains the top 40 Win Shares Above Bench players in history. Obviously Jeter doesn't compare to anyone in the top ten. The only player who didn't finish with a WARP3 over 150 is Mickey Mantle (149.1) but he only played 2401 games and has a .062 WARP3 per game, which is substantially better than Jeter. 8 of the next ten also topped the 150 mark, with only Gehrig (148.9) and Eddie Mathews (145.4) coming very close.

Certainly there is something to be said for finishing one's career with a WARP3 higher than Mickey Mantle and Lou Gehrig. While those players' careers were shorter and they were certainly better than Jeter, the very fact that he is in the conversation is meaningful.

The third group begins to drop a bit. Jimmie Foxx's WARP3 was 132.6. Pete Rose is over 150 (158.7), but Joe DiMaggio (122.4) is not. None of the other 7 players between 20-30 or any of the players from 30-40 even come close. So from the top 40 players in history based on WASB, only 18 passed the 150 mark. When we look at the players from 40-80, we don't find many more players who topped 150. Wade Boggs is close at 148.5. The only guy who beat the 150 mark was Cal Ripken.

So that's 19 players. I'm going to go out on a limb and guess that WSAB is similar enough to WARP3 that someone who finished in the top 80 in WSAB probably finished in the top 20 in WARP3.

Now certainly there are a few players on the list who are active and either will top the mark, or have a shot. There are seven active players in the top 80 in WSAB: Barry Bonds, A-Rod, Manny Ramirez, Ken Griffey Jr., Gary Sheffield, Mike Piazza, and Frank Thomas. Bonds is already in the group of 19. I think we can safely say that A-Rod (138.1) will make the list. Mike Piazza (96.2) and Frank Thomas (127.7) have no shot because of age and frailty. So that leaves Manny, Sheffield, and Griffey. Manny, despite his ridiculous numbers, has practically no chance since he's at 106.2 right now and has already seemingly begun his decline. It's hard to imagine him picking up the requisite 44 points. Even if he plays 5 more seasons (until 40) at his career average, he'll only end up with 141.6. Not gonna happen.

Sheffield seems ageless, but he's only at 116.9 and is 38. He'll need a Bonds-like revival to have any chance. Griffey is therefore the best bet. He's at 134.1 and if he can stay healthy and play three more seasons at 7.0 (his mark in 2007), he could do it. The problem is that's a huge assumption for a player who has only played more than 140 games twice this century. And he's not getting any younger.

So even if we are charitable to Griffey, that would make Jeter the 22nd player in the history of Major League Baseball to top the 150 WARP3 mark.

Obviously there are other players who were better over the course of their career who didn't make it, like Mantle and Gehrig. But there is something to be said for playing long enough to pass that threshold. It's not absurd to argue that when everything is said and done Jeter will be one of the top 40 players in baseball history. Not bad for someone who is overrated, huh?

Should Tim Raines Make the Hall of Fame?

2007-11-27T18:13:00.000-05:00

Today the list of first-time HOF candidates was released, and no one seems to be a first-ballot HOFer. Or at least that's how the list is going to be perceived. In reality, there's one name on the list who should make the HOF without question: Tim Raines.

I'm too young to have watched Raines in his prime, but I did get to see him play for the championship Yankee teams of the late 90s. Although he was no longer a star, he was serviceable player who split time with Daryl Strawberry to give the Yankees a solid, but not spectacular, left field platoon.

When I saw Raines' name on the list today, I decided to look up where he stacked up against some of the LFers in the Hall. In order to compare I am going to use EQA, WARP3, total Runs Above Average (RAA) and OPS+ (just so I don't get accused on using BP exclusively). I am going to include RAA and WARP3 per season and also per game, as I think the latter is probably a better indicator than the former. I will also try to use Hardball Times' Win Shares and Win Shares Above Bench when possible.

Here are Raines' career numbers. .307 EQA, 123.9 WARP3 (5.38, .049), 564 RAA (24.5, .225) , 390 WS and 203 WSAB and a 123 OPS+. He averaged around 24.5 runs above the average left fielder for his career. These are very solid numbers, but LF is one of the least valuable positions, so the bar is higher. The best way to determine the propriety of his candidacy is to compare him to the players already in the Hall.

There are two LFers who were substantially better than Raines: Ted Williams and Stan Musial. These players are in a different league and frankly only a select few major leaguers in history even enter the conversation with these guys.

The tier-two LFers are much more comparable. Let's make a list in no particular order:

1) Willie Stargell. 312 EQA, 100.4 WARP3 (4.78, .042), 491 RAA (23.38, .208), and a 147 OPS+. Stargell made about 800 less outs, which is not a trivial amount, but that's why his EQA is 5 points higher. But Raines' WARP was 23.5 wins higher. And Stargell's RAA per season was only 23.3, so Raines has the edge. Stargell also had 370 WS which is less than Raines, but had 204 WSAB, which is one better. I think the Stargell/Raines debate is a good one, but even if Stargell is better, Raines is very close and Stargell is a clear-cut HOFer.

2) Lou Brock. A good comparison because Brock was also a great basestealer, and actually beat out Raines 938 to 811. But otherwise the two players were not really comparable. 282 EQA, 88.2 WARP3 (4.64, .033) 226 RAA (11.9, .086) and a 109 OPS+. Not even close.

3) Goose Goslin. Goslin only played 18 seasons to Raines' 23, so his numbers are worse overall. .294 EQA, 426 RAA (23.1, .186), 103 WARP3 (5.72, .045), 182 WSAB, 355 WS and a 128 OPS+. A lower EQA by a double digit amount, with a higher OPS+. But Goslin produced one less run relative to an average LF, and his WARP3 was 21 points lower (although his 5.7 WARP3 per season beats out Raines' 5.38). Raines, of course, wins the WSAB battle simply by being around longer. Raines also had better WARP3 and RAA per game. Another favorable comparison.

4) Ralph Kiner. Kiner only played 10 seasons, but was great for most of the time. 319 EQA, 362 RAA, 74.5 WARP3 and a 149 OPS+. Kiner's 36.2 RAA (.245) and 7.45 WARP3 (.506) per season dwarfs Raines' numbers.

5) Joe Medwick. 304 EQA, 454 RAA (26.7, .228) 98.6 WARP3 (5.8, .049) and a 134 OPS+. Raines had the EQA advantage, and Medwick had the advantage in runs and wins per season and per game. Fairly close.

6) Al Simmons. 297 EQA, 107.9 WARP3 (5.395, .048), 461 RAA (23.05, .208) and a 132 OPS+. Raines has a 10 point advantage in EQA, a slighly higher WARP3 per game, a higher RAA per game, and a 9 point disadvantage in OPS+. These two players were very close.

7) Billy Williams. Honestly I know very little about Williams, but he was pretty good. 299 EQA, 113.7 WARP3 (6.31, .045), 535 RAA (29.7, .215), and a 133 OPS+. He also had 374 WS and 181 WSAB. Williams was arguably the better player overall, while Raines was the better hitter based on EQA and RAA and WARP3 per game.

8) Dave Winfield. Everyone who grew up in the 80s or 90s remembers Winfield. 300 EQA, 130 WARP3 (5.9, .043) 526 RAA (23.9, .176), a 130 OPS+, 189 WASB and 415 WS. Raines has a sizeable margin in per game stats.

9) Carl Yastrzemski. This guy played in a tough offensive era, when pitchers dominated. .295 EQA, 563 RAA (24.47, .170), 133.5 WARP3 (5.80, .040) 129 OPS+, 231 WSAB and 386 WS. His WSAB is the 27th highest in major league history. Pretty gaudy numbers, but right around where Raines is.

I picked these 9 because they are the most famous HOF LF. There are other guys, but frankly I don't have the time to go through everyone and I believe these 9 out of the 20 LF in the Hall are a pretty good sample.

Ok so let's review. Raines is 3rd in EQA, WARP3, and WSAB and 1st in RAA. When we look at per game stats he's tied for 2nd in WARP3 and 3rd in RAA, and the only two guys ahead of him or tied in either are Medwick and Kiner, the latter having played only 10 seasons. Raines is lower in per season numbers, but I believe per game stats are more meaningful because players play varied amounts of games in different seasons. He also has one of the lowest OPS+ on this list (only better than Brock) because he didn't have the power many of the other guys had, but OBP is more important than SLG and EQA bears that out.

Basically I think a case could be made that Raines is one of the best LF to ever play the game and is better than anyone on the above list. If that's not a HOFer, I don't know what is.

The Age of the Universe and Literalism

2007-11-26T12:57:00.000-05:00

I've been arguing from time to time with a commentator called Oshea on Harry Maryles' blog about the age of the universe. Here's the most recent thread. I've decided to write a post about.

I understand his essential argument this way: evidence of an ancient universe is insufficient to shift the interpretation of the text from literal to allegorical because the evidence does not really contradict the text. The universe was created, according to Chazal, not to look brand new, but rather to appear old. Since Adam was created as an adult and trees were created grown, the universe must have exhibited some form of age at its initial outset.

Even if the universe appears ancient, that fact does not contradict the literal meaning of the text. It actually fits quite well with the text, because the text implies that the universe would look old. Therefore the empirical evidence is incapable of generating the need for an allegorical approach because it actually coheres with the literal meaning.

This argument, from what I understand, has nothing to do with the Rambam or Rav Saadiah. Their methodology dealt with conflicts between the Torah and other disciplines (mainly philosophy), but the current science/Torah conflict regarding the age of the universe is not really a conflict since science actually fits with the Torah's account.

I believe this is a very good argument, and really makes a proponent of the allegorical approach do some serious work. First he must show that science and Torah actually conflict. If the empirical evidence fits with the literal reading, then there is no conflict. He must further prove that someone like the Rambam would have allowed reinterpretation based on a conflict between Torah and empirical science. All we have right now is arguments that the Rambam allowed the literal meaning to be trumped by philosophy. How do we know he would have allowed reinterpretation based on modern science? On top of that there's also a presumption of literalism in interpretation of the Torah. All together that's a tough hurdle to pass.

I also want to note that I don't believe Oshea considers the non-literal view to be kefira. Designating a view apikorsus is a very strong statement and can have very serious repercussions. Since Judaism has a long tradition of pluralism in interpretation of texts (especially non-Halachic texts) arguing that the view is kefira or even just not allowed (the view of some of the Slifkin banners) shifts the burden to the opponents to prove that only the recognized interpretations are legitimate. The presumption of literal interpretation does not, in my mind, fulfill that burden given how many non-literal interpretations there are in the corpus of Torah.

Ok, on to first issue, the argument that the science/Torah conflict on the age of the universe is merely illusory. That argument assumed that the evidence of an ancient universe does not conflict with the literal meaning and actually comports with Chazal's view that the universe was created already looking old. The biggest problem with that argument is the evidence is very different from what we would expect from Chazal's view. Sure, the world had to look older than it really was, because otherwise it's hard to imagine how Adam could have existed in that climate. Trees were already grown, food was available, etc. But did it have to look billions of years old? Is there any reason to expect it to look billions of years old? Why are there dinosaur bones? Cave paintings? Fossils of human-like creatures that date tens of thousands of years old? Why did scientists recently find an eight-foot long scorpion? Unless we can prove (not just assume because of the Mabul) that our dating methods are way, way off, in what way does this evidence conform to Chazal's view of apparent age?

I believe the disparity between what should be expected by the Torah's account and the actual world that we see is vast enough to generate a conflict. And since the idea of an ancient universe is not required by the sources, I believe the burden is properly shifted from the proponents of the non-literal account to the supporters of literalism to show that only the literal approach is acceptable.

Onto the second issue. Would the Rambam or others allow allegorizing because of a posteriori rather than a priori reasoning? That's a difficult counterfactual question and is hard to answer. But I think the more important issue is recognizing that the Rambam's views on this matter were clearly influenced by the philosophical constructs that existed at the time. Would the Rambam have still postulated the argument from contingency if he had read W. V. Quine? Would Rav Saadiah still consider a priori reasoning paramount if he had lived during the time of the Empiricists or the modern Foundationalists (a school of though that believes that experiences are the foundation of all knowledge)? It's anachronistic to ignore the development of philosophy and especially the philosophy of science when asking these questions.

Instead we should take the essential structure of their theories and try to strip them of their medieval trappings. The fundamental aspects of the Rambam's methodology was to allow other disciplines to influence our interpretation of the Torah. Now, we shouldn't claim the Rambam would allow reinterpretation willy-nilly because he wouldn't. But if I am correct that the appearance of an ancient universe does pose significant problems to literalism, then perhaps the Rambam's essential theory would allow reinterpretation.

WooHoo!

2007-11-15T09:41:00.000-05:00

No more taking Bar exams!

A Little Too Blind

2007-11-07T14:00:00.000-05:00

Haaretz's editorial today compares Likud to Hamas because both are unwilling to make important compromises at Annapolis. I guess that's true, but it's like saying that Hitler and Mother Teresa are similar because both ate breakfast in the morning. I don't need to explain the differences between Hamas and the Likud, as they are patently obvious.

Haaretz's rationale for supporting Annapolis is that,

[a]t Annapolis, Israel has a partner. It may be weak, it may represent only part of the Palestinian people, but finally there is another side that sees eye to eye with most of the people in Israel, a side that opposes using terror to achieve political goals and is willing to give up some of its original aspirations to reach an agreement.

Even if true, much of the opposition to Annapolis is based on the idea that Abu Mazen barely controls only part of the Palestinian people. He has no authority and little support in Gaza and it's not even completely clear he can control the West Bank.

Haaretz's editors don't care. They argue that

The Annapolis conference is an opportunity to forge an agreement with people who are willing to sign it, while hoping that the entire Palestinian people follows suit.

I'm not completely opposed to the idea of working with leaders and then hoping that the subjects will follow suit. That idea underpinned Oslo. If Arafat would agree to a deal, the positive benefits would manifest themselves in a way that would change the minds of the average Palestinian. If his lot improved and he had a measure of freedom from Israel's occupation, he would view Israel more favorably and the conflict would end. Basically the idea is that a peace process would jump-start a shift from hatred on both sides, to a more congenial acceptance of each other's existence.

Ok, that idea might have worked in 1993 or 2000. It's one thing to make a deal with a Palestinian leader like Arafat who enjoyed immense support (certainly early on) and could implement the agreement. It's totally another to negotiate and sign an accord with a leader with a minimal amount of support even in the area where he's supposed to reign supreme. Is anyone willing to assert with confidence that Abbas enjoys the support of 50% of Palestinians? Does he even supremely control his own security forces? If not, how exactly is he supposed to make the future benefits of the peace deal a reality?

Israel can't just negotiate with anyone. If the Palestinians can't get their act together, what kind of deal is worthwhile when it won't be worth much, if anything at all?

Update: Israel's intelligence agencies seem to agree that Abbas is a powerless leader.

A recently exposed joint document by the General Security Service (Shin Bet), the Mossad and military intelligence states that "even if understandings are reached in Annapolis, the chances of implementing them in the field are almost zero."

Fun Game

2007-11-06T22:42:00.000-05:00

This game purports to judge whether a person's religious beliefs are internally consistent. I got hit once and bit two bullets. I completely disagree with how the test uses the word "rational" but nothing is perfect.

Check it out.

Authority and Bias

2007-11-06T15:32:00.000-05:00

Jak Black, semi-frequent commentor on Haemtza, posed a good question (here and here) about Harry's Daas Torah post:

We all have personal biases. How can a person know if his choice not to listen to the decision of a gadol is not simply based on some bias? Once you establish that the words of a gadol are not truly binding, what worth are the words of a gadol at all? Essentially, it seems to me that they have become (again, for all intents and purposes) meaningless.

and

However, if the decision really has grave spiritual impact (schooling, shuls, etc.), and a person simply cannot decide which house to purchase because he is having difficulty balancing the various spiritual factors, and a rav says that clearly one is superior, I cannot fathom why he shouldn't heed that advice (unless perhaps the question changes, i.e. a new element comes into play.)

Perhaps you ask questions about every subject under the sun. Which tomato do I purchase - the Roma, or the vine? If so, then I can see why you don't feel an obligation to listen. But I only ask questions to which I truly do not know the answer. Therefore, regardless of the true status of such advice, it seems to me obvious that it should be personally binding.

I think bias can be overcome, but not always. Jak's example about judges recusing themselves is right on point. Judicial ethics require a judge to recuse himself when he has a personal stake in the case. Surely a judge who is the majority owner of a corporation that is in court should recuse himself. But the canons of ethics do not require a judge who owns a few shares or a judge whose son happens to go to the school that is being sued to recuse himself. That's because bias is everywhere but we assume that bias can be overcome in some cases, but not others.

Jak's suggestion about making a Rav's advice binding is far from the only solution and probably not the best. If a person is truly worried that his biases are influencing his decisions, he could consider his wife's views binding. If the sole problem is that biases blind and other people who do not share the same bias are more objective, then why ask a Rav at all? Why not get a therapist or someone else trained to deal with identifying biases in people? We can solve the bias problem by appointing anyone as an authority.

So why choose a Rav? The answer must be because the Rav is more likely than other people in question to get the answer to the question correct. As Joseph Raz would say, we accept an authority because he is more likely to determine what right reason demands than the subject. In some cases a Rav is clearly most competent in figuring out the answer. Since Rabbanim tend to specialize in Halacha, his opinion should be granted great weight. But I'd demur against making his authority preemptive, because no one but the questioner is ever completely capable of understanding his situation as well as the person himself. Language and other factors are a barrier to transmitting information efficiently, so it becomes impossible for the Rav to fully comprehend the issue at hand in its entirety. People, even biased people, should be willing to evaluate the answer and weigh it against other factors.

This is an epistemological problem and one not easily solved. From a practical perspective, I'd suggest a person accept a Rav's psak unless he feels the psak is completely wrong. In that case, he should follow the procedures laid down in Halacha and ask another Posek of "greater" stature and inform him of the earlier Posek's ruling. So basically when it comes to personal psak for a single individual we don't disagree in practice, only in theory.

The difference is when it comes to global pronouncements or advice not of the Halachic nature. Let's focus on the latter issue, because I'd rather not get into the whole Askanim problem that Harry properly brings up. When the issue is not Halachic, it is less plausible that the Rav is more likely to come to the correct conclusion than the person asking the question. So the Rav's opinion should be given less weight. What about bias? It's a problem. But at this point it becomes a question of weighing factors. The Rav might be more objective, but he is less qualified to answer the question. So the individual has to make the decision for himself. If it's an important issue he seek advice from a number of sources, preferably from people who are aware of the problem, but also from people who are detached. I believe different perspectives will illuminate the underlying problems and expose biases.

Not considering a ruling or opinion binding does not render it meaningless, even practically. Imagine someone goes to a doctor and is told he has a fatal illness and only treatment A will save his life. Further imagine that treatment A is risky. Now, most people respect their doctor's medical advice and don't frequently reject the advice out of hand. But in such a case, most people would look for a second opinion. Why? Because doctors, like other experts, might be wrong.

Jak is essentially arguing that advice is meaningless because people will decide what they want to do with or without the advice. But that just isn't true. The patient will speak to other doctors, do his own research, etc. But his decision will be at least partly based on how much he respects the first doctor, and the odds that the doctor is right. I believe that if the person had spent months researching the issue and never spoken to the doctor, he might have come to a different conclusion or at the very least would reach that conclusion differently.

Torah U'Madda at its Clearest

2007-11-06T12:46:00.000-05:00

"It is clear that the hours spent studying in the college will take away from time spent learning Torah, but, on the other hand, such study will give a student much more breadth, and a better hekeif of the whole world in general. In a certain sense he may lose out, because he’ll have less time for learning Torah, but secular studies grant a student a greater depth. Torah is not just a collection of dinim. When a person learns Torah, it should put the entire world in context. If a person has a real understanding of secular knowledge, then that, together with the Torah, will give him a better perspective on life."

-- Rabbi Herschel Schacter

Oh Really?

2007-11-01T22:35:00.000-04:00

Barry Bonds has promised to refuse an invitation to the Hall of Fame if his record-setting ball is entered with an asterisk. Here's his rationale:

"I don't think you can put an asterisk in the game of baseball, and I don't think that the Hall of Fame can accept an asterisk," Bonds said. "You cannot give people the freedom, the right to alter history. You can't do it. There's no such thing as an asterisk in baseball."

Perhaps Barry hasn't been introduced to a guy named Roger Maris, who some of you may know broke the single-season home run record in 1961, but his record was recorded with an asterisk until McGwire shattered it in 1998. Bonds isn't much a student of the game, huh?

Claire and the Dolphins

2007-11-01T14:42:00.000-04:00

I have to give props to TMZ for showing this video. TMZ is one of those awful paparazzi news groups that follow celebrities around all the time. They even have a TV show at 6:30 on Fox-5.

Here they found a news report about how Japanese fisherman kill approximately 23,000 dolphins a year. A group dedicated to saving the dolphins went out there and tried to stop the slaughter. Hayden Panettiere, who plays the regenerating cheerleader Claire on NBC's Heroes, is a member of the group and was interviewed.

Animal rights and all, I don't understand what motivates someone to fly all the way to Japan and swim into danger just to save dolphins. I understand how the West views dolphins differently from other water dwelling creatures (except maybe whales), so I can see why people are appalled by dolphin killing. But aren't there more important issues in the world? There are homeless people all over the place. If someone has the time, wealth, and energy to go all the way to Japan just to save dolphins, she can certainly muster up the strength to volunteer at a food kitchen. It's less glamorous but much more meaningful.