The Deadman Night Rider

A forum for evening students of the SMU Dedman School of Law and other outlaws..

Tuesday, November 29, 2005

If the Democrats ever start listening to these guys, the GOP could be in trouble

I finally broke down and subscribed to The New Republic this week, which makes it the only website I've ever paid to access (and it does't even have pictures of naked women). They call themselves Democrats, but they're definitely on the far right side of that camp. I usually find myself reading their columns and thinking, man--if the Dems ever really listened to these guys, the Republicans would be in trouble.

There are some traps TNR still can't avoid, though, and one of them is the issue of illegal immigration. One of their contributors has an article up today about the Minutemen that is pretty evenhanded on the whole, but it still betrays the fatal flaw in the way the left approaches this issue(sorry, it's a pay article or I'd link to it). That flaw is conflating legal immigration with illegal immigration and assuming that attitudes toward one inform attitudes toward the other.

The Dems continue to get caught flat-footed on this because they insist on treating opposition to illegal immigration as opposition to legal immigration, which allows them to fall back on charges of xenophobia, racism, etc. On the other hand, the GOP hasn't done a good job of distinguishing their position either. There is a real opportunity for either side if they can wake up to this and get out ahead of it. The first side that really makes the case that you can be 100% pro-immigration but still favor something draconian like an Israeli-Palestinian-style wall on the southern border is going to be the winner. And the biggest cheerleaders are going to be legal immigrants.

Legal immigrants back strict enforcement of immigration law for the same reason doctors and lawyers nail people to the wall for practicing without a license. We need to hear more from them on this.

Tuesday, November 22, 2005

A big opportunity for Putin

Russia has been given a little more time to try to persuade Iran to go for Putin's compromise plan of allowing Iran's nuclear program to continue as long as they carry out the uranium-enrichment process on Russian soil under international scrutiny.

If this works out, it would be a huge win for Moscow and Washington, since a nuclear Iran now seems all but inevitable. If Russia wants to regain anything resembling its old status as a world power, this is the way to do it--by using their sphere of influence to solve problems, not just throw in with the obstructionists of Europe. It's probably too much to hope that this might signal closer cooperation between the US and Russia on the wider war on terror, but I can always hope. They should be our natural allies in this fight, but old suspicions, hard feelings over Kosovo, and foolish, wrong-headed sympathy for the Chechens from some in the US stand in the way. If we could get access to half of what's in the FSB files on Iraq and other Arab countries, where the Russians have operated for decades and always had far better human intelligence than we did, it would go a long way toward making both our countries safer.

The Deadman says, Go Putin and Lavrov!

Monday, November 21, 2005

Burnin' down

Only two weeks of class left - man, that went fast. If the rest of law school goes like this, I'll be dusting off that passport and shopping for plane tickets in no time.

Best of luck to everyone on finals!

Thursday, November 17, 2005

The open memo is done!!


Monday, November 14, 2005

Why SMU Dedman is a pretty cool place...

I know alot of law school blogs are dedicated to belly-aching about it, but here's one reason the Deadman isn't one of them (from this morning's announcements email):

International Financial Reporting Standards - Concepts of Corporate Governance - November 16th

The International Law Society and the Deans Suite presents a lecture this WEDNESDAY, Nov. 16 at NOON in FLORENCE 201. Bernhard Grossfeld, an SMU Distinguished Professor and the Director of the Institute for International Business Law & Institute for Cooperative Reserach at the University of Muenster in Germany, will be speaking on "International Financial Reporting Standards - Concepts of Corporate Governance." Mr. Grossfeld is one of the leading European law scholars in Comparative and International Business law. Lunch and refreshments will be served.

I know it may not be most folks' cup of tea, but this is exactly the kind of stuff I came here looking for--and there's free lunch to boot. What more can you ask for (OK, beside lower tuition...)?

Friday, November 11, 2005

Let's see this flag flying at UN one day...

A group promoting foreign investment in Kurdistan is running TV spots thanking the American people for the liberation of Iraq. There's been some suggestion in the blogosphere that the fact they're advertising for investment somehow dilutes or taints the sentiment, but the Deadman wholeheartedly disagrees. Here's a link to their website--I'm too cheap for cable, so this is the only way I can watch the spots.

In a just world we'd see this flag raised at the UN next to that of an independent Taiwan and Tibet. It's strange that of these three, the only one that is a fashionable cause is Tibet, but hey, you take what you can get...


My colleague rightly takes me to task for being so maudlin below. I wrote that post right after the lecture--the pictures stirred up the old wanderlust and I was simply feeling sorry for myself, which is ridiculous. Thank you, my friend--I appreciate it. The site is not supposed to be about me puling.

Now for the part that probably sounds stupid: if I had my bar card today or if we fast-forward a few years (God willing), I'd take a job in Baghdad or Amman way before I'd take one in Dallas or New York. I know people are getting blown up there, but that's exactly why people of good will need to be there. Unfortunately, there's alot that needs doing now that can only be done with a gun, but all of that pales in comparison to what needs to be done with a fountain pen.

I still think the larger battle all over the world has to do with modernity. The shocks are coming from some parts of the world waking up from a long dream and struggling to come to grips with the daylight. As Prof Anderson would say, more on that later. I will say that what I learned living overseas is that the world eventually purges anachronisms. That's why I want to get back.

Wednesday, November 09, 2005


I took off work today to catch a lecture provided by the International Law Society. The speaker was the general counsel for the Federal Reserve Bank in New York and he gave a presentation about accomodating Islamic banking practices. It was really interesting--I'll post some more on it later.

After he wrapped up, though, he showed us some photos he took while on a four-month tour of duty in Iraq as an advisor to the CPA to help set up an Iraqi central bank. It was funny how much things there looked like western Kazakhstan. I don't know why I go to these things--seeing everything going on out there in the world makes it harder to sit here, knowing in all likelihood I'll never get back.

Tuesday, November 08, 2005

When the law has to be taken back from the lawyers

Professor David Kairys of Temple University is quivering with righteous indignation over at Slate over federal pre-emption of public nuisance liability suits against firearms manufacturers and dealers.

I used to read stuff like this and thank God I never went to law school. Now I've changed my mind--there are way too many guys like this carrying bar cards out there with no one to cancel them out. If nothing else, maybe I can contribute some ballast.

Kairys claims that the immunity from suit granted makes the gun industry exempt from the rule of law that applies to the rest of us, and that's true. But it's not unprecedented and it's not wrong. People like Kairys fought against making 911 operators immune from being sued for negligence for providing first aid advice over the phone. They also fought against "Good Samaritan" laws that forbade jackals like him from suing you for accidentally cracking someone's rib while saving them from choking. In both cases, they relied on the same argument: that it would put some people outside the rule of law that applies to the rest of us.

But thankfully the law doesn't just belong to the lawyers--it belongs to the rest of us, too.

For someone in a profession built on exceptions, Professor Kairys seems awfully sensitive to this one. One gets the feeling there's some other motive guiding this cause. He cites an ATF stat that 57% of guns used in crimes are sold by 1% of dealers, but instead of going after that 1%, he wants to have mass tort available against the entire industry. It looks like he's upset that Congress just deep-sixed his dreams of being the John Banzhaf of gun litigation. Be sure to check out this guy's webpage--it's an eye-opener.

Kairys thinks the gun industry should be liable civilly because they continue to produce guns with the knowledge that a certain percentage of them wind up on the street and get used in crimes, which he compares to liability to clean up chemical spills or, better yet, to 'dram shop' laws that hold bars liable for selling to drunk patrons. The problem is that with both those examples we can identify every party all the way down the line--the company that spilled the chemicals, the bartender that served the drinks, the drunk guy who got in the car, etc. Gun manufacturers and dealers only know that statistically some of their product will get abused, but they have no idea who the criminals will be.

We have to draw the line somewhere, and tort lawyers damn sure shouldn't be the ones to draw it. Take my post below for example. Kairys would sue the entire food industry for knowingly producing almost twice as many calories per person every year than the average needed to maintain bodyweight. We see the effects everywhere, and it costs us alot more than gun violence does, right? Why should we let these corporate food guys reap their windfall profits knowing they're creating a public nuisance?

Tell me another lawyer joke...

Monday, November 07, 2005

Why macroeconomics should be a required course for a high school diploma

Anyone with the time should check out this TNR article by Judge Richard Posner. Posner, a star of the law-and-economics movement, has never been known for brevity, but you should at least scan over it. Here’s a paragraph that just jumped out at me:

On the principle that in politics the word "truth" is a synonym for "blunder," [Michael] Chertoff [Secretary of Homeland Security] has been criticized for stating the truism that, other things being equal, fewer resources should be devoted to preventing a terrorist attack that kills thirty people than to preventing one that kills three thousand. The criticism reflects the incapacity of our political class, and not just of the general public, to think in cost-benefit terms. For want of such thinking, we are busy squandering untold billions of dollars to rebuild New Orleans in time for the next flood, an expenditure of conscience money for the government's failure to have responded competently to the hurricane. We cannot even waste money efficiently. Instead of giving the displaced persons cash and letting them decide where and how to live, the government is buying them their housing and thus telling them where and how to live.

Hostility toward cost-benefit analysis is probably the most far-reaching effect of the public’s broad ignorance of basic economic theory. We wouldn’t need tort reform if juries could just be relied upon to apply a reasonable cost-benefit calculation to determine negligence. Instead, corporations and people are punished for doing exactly what they’re supposed to be doing: weighing the costs of precautions against what they will actually prevent. The Ralph Nader-ite on TV or trial lawyer in the court room calls this “costing out”—conjuring up visions of evil actuaries in green eyeshades totting up the cost of settlements to people horribly injured by their unsafe product to see if it costs less than installing the magic-bullet safety device. The standard fall-back is “if we can save just one life...” or “you can’t reduce human life down to a dollar figure…” (Except that’s exactly what they do when they ask for damages based on future earnings, loss of consortium, etc.)

The runner-up for most damaging economic misconception is the idea that supply creates demand (Posner doesn’t touch on this, but since I’m on a roll I figured I pitch this in—it’s one I particularly loathe). This belief animates the charge that marketing is to blame for obesity, smoking, etc. Here’s a good example:

[A]s Marion Nestle points out in her convincing treatise, Food Politics (2002), the food industry now produces 3,800 calories a day for every person in the United States (2,200 to 2,500 would be adequate). That's a 500 calorie-a-day increase since 1970. And, as Nestle notes, the American weight spike in the late 1970s exactly corresponded with the invention of supersizing in fast-food marketing.

Luckily, Congress has gotten ahead of the plaintiff’s bar on this one, but it’s truly sad that there was even a need for it. Hell, even entire countries fall for this claptrap: France is using the same theory to justify proposed tariffs on American books, music, and films. Of course, that’s not saying much—a quick glance at the numbers tells us that France doesn’t grasp most economic concepts. Anybody else bothered by this, or am I way off base here?

Friday, November 04, 2005

Socialism's last gasp

Bradford Plumer, a blogger for, has a link up to a very thorough New York Times article on the public and private pension crisis. In his blogpost, Brad spins the thrust of the article as an indictment of corporate execs who gamed lax government actuarial rules to consistently under-fund their pensions (which is true to a great extent), but if you read the whole article, you’ll see that organized labor deserves just as much blame, if not more, since they still have their foot on the gas pedal to drive up benefits. For especially galling examples, skip to the bottom of the article to read about the public employee unions in California and New Jersey.

Defined-benefit obligations are a great example of how collectivist theory just doesn’t fly in the real world. Hopefully the coming crisis will spell the end of them, at least in the private sector—the whole idea is a socialist holdover from the New Deal that is long overdue for the dustbin of history. They create dependency, which is why governments and unions swarm to them like flies.

Government—any government, Republican, Democrat, communist, or capitalist—is inherently incapable of accurately assessing economic value—you need a market mechanism for that. The Pension Benefit Guaranty Association, the pension-payer of last resort set up to underwrite the entire system, is under-funded because the premiums it collects are a political decision, not an economic decision. The same goes for the ERISA calculation that governs the contributions employers make to their plans. Is it any wonder they come up short? How well do you think your health insurance would work if the policy-holders got to vote on what the rate should be? Wouldn’t you always vote for higher benefits and lower premiums?

Bottom line—never, ever trade autonomy for security. No one looks out for you like you look out for you. This just rubs some people the wrong way, though. Both Brad and Roger Lowenstein (the author of the NTY article) take a dim view of 401(K) and other defined-contribution plans because, in Lowenstein’s words “people are imperfect savers. They don't save enough, they don't invest wisely what they do save and they don't know what to do with their money once they are free to withdraw it. Quite often, they spend it.”

Again—dustbin of history calling

Wednesday, November 02, 2005

Bad time to be a Democratic senator...

Unless (ala The Simpsons) you're crooked.

One good thing about the Harriet Miers resignation is that the Deadman can once again read George Will without that nagging cognitive dissonance. Here is a great article that points out the hard spot the Alito nomination puts the Dems in. The Senate confirmed Alito to the 3d Circuit Court of Appeals unanimously.

Will also points out that twenty years ago the Senate also unanimously confirmed Antonin Scalia to the Supreme Court. What a difference a couple of decades makes, huh? Now, the leading lights of the Democratic party find a person like John Roberts unfit for the Court.

So, if you're a Democratic senator who voted against John Roberts, you damn sure can't vote for Alito. On the other hand, if he's so unqualified, why was he overwhelmingly confirmed to the Appellate bench? I guess you can always fall back on Emerson's words about a foolish consistency...