Experience and the Presidency

Much has been made of late about experience and the presidency. John McCain and the Republicans have attacked Barack Obama for lacking the experience to be President. Vice presidential candidate Sarah Palin is now being criticized by Democrats as lacking experience. Both sides are accusing each other of hypocrisy. Some Republicans are attempting to make silly distinctions based on who has more "executive" experience, something that ironically even McCain lacks. Obama has defended himself by talking about his experience running his campaign, an argument I don't find to be particularly compelling.

Although I certainly recognize that Obama doesn't have a ton of experience, my reaction to Palin was immediately one of shock at how little experience she had. Am I just being partisan, since I support Obama and the Democrats? On ideology, it's easy for me to articulate why I think the Democratic ticket is better than the Republican one. But I've been trying to figure out why I react so differently to Obama and to Palin on the experience issue.

I think the reason is this: It's not really about experience in the way most people are talking about. Obama is well-known. He's been on the national stage for many years, and when he was on this stage, it was well-known that he was a potential future candidate for President. When I refer to being on the national stage, I don't mean necessarily being a member of Congress or the Vice President -- Rudolph Giuliani was on the national stage, despite being a mayor. We've heard a lot about Obama. He's been in numerous debates -- as has Biden and McCain and Clinton and others. We've seen him speak many times. There have been countless media stories about him, many discussions about him and his ideas. He has been interviewed countless times by the media.

In contrast, Palin is a surprise. For most of us, we've never heard of her before. We've never seen her interviewed by the media. We've barely read anything about her until recently. We know little about her.

This, I think, explains my reaction and the reaction of many others to Palin. The big problem isn't that she lacks experience. It is that this late in the game, only a few months away from the election, we're suddenly being introduced to her for the first time. The other candidates have been tested by being in the media storm for years; Palin has not. We've had time to learn about the other candidates, to see what is unearthed about them, to find out about their virtues and warts. They've been washed in media acid for quite some time. Palin has not. If Palin had been on a presidential or vice presidential short list a few years ago, if she had been scrutinized by the national media for years, if she had been well-known throughout America by both Democrats and Republicans, I don't think I'd feel the same way about her lacking "experience."

In other words, experience isn't really the issue here. It's that Palin is unknown and untested, a stranger who has suddenly appeared into this race like an unexpected guest. I don't think that two months is a long enough time to get to know her. So Palin abruptly appears in the middle of this long-going campaign, like a bolt out of the blue at virtually the eleventh hour, and now we must sit through a media frenzy to get any information about her. This media scrutiny is important and to be expected -- we need to know more about her -- and we need to see how she withstands the media acid. But it is unfortunate that it all must be compressed into just 60 days. The result will be a more potent media frenzy, a distraction during the final stages of an election. With Obama and McCain and other candidates who have long had their backgrounds scrutinized by the media, the attention will be on the issues. But with Palin, the media will be focused on the getting up to speed on her background. I find this very unfortunate, as this final stage of the election process should be focused on the issues. This is why I'm angry at McCain's choice of Palin. It detracts from the issues in this election and is creating a circus-like sideshow.

Posted by Daniel J. Solove at 12:44 PM | Comments (19) | TrackBack

Our Talking Point Culture

Every year, when I think it can't get worse, it does. I'm referring to the political discourse by pundits that carries on incessantly like cicadas. Every day, I'm bombarded by various arguments and opinions about the candidates made by the political pundits and spin doctors. These creatures have always existed, but there seems to be more and more of them these days -- they're reproducing like a plague of locusts. Even the news media are spinning themselves, with CNN constantly insisting that it has the "best political coverage" and with Fox crying out that it's "fair and balanced." After all, if you say it enough, it must be true.

Dan Filler at the Faculty Lounge refers to this terrific clip from The Daily Show illustrating how the pundits blatantly contradict themselves:

And then there's the recent episode of Peggy Noonan caught on an open microphone expressing sentiments that contradicted what she was publicly saying.

It seems as though all these pundits and spin doctors are just playing a game, saying things not because they're true, not because they believe them, not even because they're plausible -- they just make arguments because they support their side. But this is all just noise. Why must we be constantly be bombarded with this inane and phony banter? It would be refreshing, for once, to hear people express their actual opinions, to hear them make arguments that they really believed in rather than what they felt was the party line. It would be refreshing to no longer keep hearing the talking points, and to have a real discourse, not a phony one with scripted arguments that change on a dime if expedient.

So here's my plea for the media -- stop giving these pundits all the airtime. Yank them off the air. Don't print their drivel in the papers. Let's just assume that the pundits for each side are just going to spout off whatever they find expedient. Do we really need to hear more of it? Let's just say that they cancel each other out, and then start with a fresh slate. So please give the airtime and op-ed space to people who are willing to express opinions with integrity, who actually care about developing principled positions rather than merely churning out debate club stock arguments. This is my plea. I've reached my saturation point. I can't take any more. This is a form of torture that must be worse than water boarding.

Posted by Daniel J. Solove at 01:30 PM | Comments (10) | TrackBack

Politicians and Script Writers

Much has been made of the fact that large parts of Sarah Palin's speech were already pre-written before she was even chosen as the VP candidate. According to the Washington Post:

Not anticipating that McCain would choose a woman as his running mate, the speech that was prepared in advance was "very masculine," according to campaign manager Rick Davis, and "we had to start from scratch."

It is common in today's political landscape for speech writers to pen most of the words in a politician's speeches -- both for Republicans and Democrats. What always irks me is all the commentary about the speeches. The commentators -- on all sides of the political spectrum -- are saying how much Palin's speech reveals about her. But are we really learning much about Palin from the speech if she didn't write a large chunk of it?

If the words are written by others, what exactly does a speech tell us? Why do we pretend as though the words are really coming from the particular politician? If the skill is the ability to read convincingly from the teleprompter, or to deliver the lines with gusto and confidence, then isn't this more suited for an actor or actress?

One thing that always irks me is when quotes from movies are attributed to particular actors, as if Robert DeNiro or Julia Roberts originated a particular line in the same way that Shakespeare or Einstein created their own words. We all know that actors and actresses are just vessels for delivering the words of others. We wouldn't attribute quotes to the person who read a particular line for an audio book on CD. Why do we do so when an actor or actress delivers a line in a movie? Or when a singer sings a song written by another?

Suppose we found out that Lincoln had a speech writer write the Gettysburg Address. Would our opinion of him change if we learned that his eloquent words were not really his own, and that he merely delivered the lines in a particularly compelling way?

Posted by Daniel J. Solove at 12:43 PM | Comments (8) | TrackBack

Politics in the Age of MySpace and Facebook

Recently, I was interviewed for an article in the Globe and Mail about the young teenage father-to-be involved in the media circus surrounding vice presidential candidate Sarah Palin's pregnant teenage daughter. I believe that the media should restrain itself from prying further into Palin's daughter's private life, as well as that of the father-to-be. He was referred to only as "Levi" by the media until recently, when a few media entities and bloggers started identifying him by his full name. I don't believe he should be identified by his last name unless he consents to it. His identity is of little relevance to the issues in the campaign.

Apparently, he had a MySpace page. According to the Globe and Mail:

According to his MySpace page, he loved camping, fishing and riding dirt bikes. He wasn't much for babies ("I don't want kids") or political optics: "Ya fuck with me I'll kick ass," the page says. . . .

The Alaskan teen's MySpace page was taken down yesterday, but the damage had been done.

"I'm a little bit surprised the campaign didn't ask him to take these pages down," said Daniel Solove, author of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. "It's become a very distracting sideshow."

Information about his identity and MySpace page are all over the Internet and media now. More and more, we'll be seeing the media and bloggers mining the social network profiles of the kids of politicians. I think that this is unfortunate, but it is hard to stop people from gawking at a public website, especially when a politician's child falls into the vortex of a media storm. The fact that Levi's MySpace page remained publicly available for so long indicates that there is far too little thought and attention to social network websites and the Internet by parents and others outside of what I call "Generation Google" -- the teenagers today who are posting more and more personal information online, which will be available to anybody doing a Google search.

If Sarah Palin and the McCain campaign knew about the pregnancy, they certainly must have expected that with today's media, it would sooner or later find its way into the news. With that risk in mind, why not try to make sure that public MySpace or Facebook pages of those involved are removed before the media frenzy begins? This strikes me as a fairly substantial oversight. The teenagers involved in this incident are far from ready to confront the media frenzy they are now subjected to. Somebody should have told Levi to remove his profile (or make it accessible only to his friends) long before the story broke. Perhaps the McCain campaign. Perhaps Sarah Palin. Perhaps his parents. This illustrates part of the problem facing members of Generation Google -- their parents, teachers, and others who advise them are not well-versed enough in what's going on.

Posted by Daniel J. Solove at 01:46 PM | Comments (0) | TrackBack

All Politics, All the Time, Makes the Blawgosphere Go Crazy.

I feel a need to take a moment for a short rant.

It’s the news-hook that launched a thousand nominally law-related blog posts: the presidential election season! Surfing the vast blawgosphere tonight, it feels like every other post, on every other blog written by, and often for, law professors, is about the federal presidential election process. This, despite the often-advanced (in quieter times) view that the Supreme Court (the motivating issue for many posts) has little substantive impact on the issues that most Americans care about, despite a recent emphasis by progressive scholars on direct democracy and regional and state-led legal reform, and (sadly) the truth that law professors only rarely have novel or interesting insights about Presidential politics. (Bill Stuntz is an exception to this and many other rules).

It is particularly dispiriting that the election season threatens to make unreadable some of my favorite blogs, which now seem to be given over almost entirely to hashing of the latest scandal, speech, purported policy shift, or inside-politics joke. (I’d link, but I like some of these folks when they aren’t dressing up as Bill Kristol or James Carville!) I’d like to say that we’re a total exception to the trend, but we’re clearly not – 10 of the 46 posts currently on our front page directly concern the conventions or the candidates (including a few by me!). Maybe this is a better ratio than average, and, if so, I'd like to think that it's because we've got a good mix of political orientations in our core blogging group. But maybe it's worse, in which case, I blame our sad quest for an Instalaunch the tremendous gravity exerted by the news cycle.

There is an argument, and I imagine some of you will expand upon it in the comments, that law professors are uniquely situated to provide context and content to political discussions because of our relative expertise in the institutions of government, its functioning, and the great issues of the political debate, like health care law, international environmental standards, the legal limits on the government in its interrogation and detention policies, etc. If indeed most law professor commentary about the election were of this character – say, Balkinization writ large – I’d agree with you. But mostly the exercise looks instead like a good illustration of Kahan’s cognitive illiberalism: lots of smart people perceiving, and pointing out, bias in others but failing to see bias in their own perceptions of facts, statistics, and politics. For heaven’s sake: elections happen every four years. The republic isn’t going to fall apart no matter who wins. If you need further reassurance, consider the double-hammer exerted by the hedonic treadmill and bad affective forecasting: it is almost certain that you are currently overestimating how much your guy losing will hurt you, and under-estimating how quickly you will adapt to the pain. If paraplegics can feel basically ok a few years out, so can you.

I’m as much a political junkie as the next ivory-tower elite, but I’d really like to read some smart, law-related, blogs that don’t feel it necessary to turn Obama’s latest terrific speech into a hook for a post about their experience with banning laptops in the classroom, or Palin’s recent Church attendance into a exposition about the constitutional law case they taught last term about crèches. Use this thread, if you like, to join my rant against the politicization of public life that happens around this time ever few years, and recommend some (other?) quiet space(s) to read and reflect about law while the blawgosphere ruminates about what clever turn of phrase, well-timed or produced ad, or terrific biography will fundamentally reshape the political universe.

End of rant: Whew! I’m glad I got that off my chest!

(Image Source: Anti-Grover Cleveland political cartoon of 1884, Wikicommons)

Posted by Dave Hoffman at 12:22 AM | Comments (10) | TrackBack

When Art Imitates Life . . . or Vice Versa

Fans of the TV show Battlestar Galactica have long ago noted some uncanny resemblances between John McCain and Saul Tigh. But there's a much broader connection. It seems as though just about everybody associated with McCain resembles a Battlestar character.

Hat tip: BoingBoing

Posted by Daniel J. Solove at 03:24 PM | Comments (2) | TrackBack

"If she were president, she'd be Baberaham Lincoln."

According to Google News, there are almost 500 news stories that match the query "Palin & pageant." Everyone from Newsweek to the Wall Street Journal is writing about Palin's beauty-pageant past. The pageant picture is making the rounds, all bare shoulders and big hair. The New York Daily News, in an attempt to reach a new low, is speculating that Palin's ravishing good looks may distract Joe Biden from debating her on the issues.

And there are already numerous references everywhere to the Wayne's World line, "If she were president, she'd be Baberaham Lincoln." (Including this one, linked by NRO's The Corner.)

This is all pretty much the opposite of the reaction to Hillary Clinton, of whom Drudge famously asked, "are we really ready for an ugly, old, woman president?"

Two women feature prominently in this campaign season. One is portrayed as the shrill bitch, the ugly old woman (thanks, Drudge), the (gasp!) pantsuit wearer. The other gets 500 stories about how much of a hottie she is. (Questions about her tenuous grasp on U.S. history receive a tiny fraction of the airplay given to the fact that she was miss congeniality.)

We've clearly arrived in post-feminist utopia, and everyone can stop worrying and go home.

Posted by Kaimipono D. Wenger at 03:53 PM | Comments (6) | TrackBack

Prediction Markets and the Palin Pick

Palin is McCain's VP pick, but the inTrade markets seem to have been caught flat footed. Here is the graph of her contract's performance over the life of the speculation:

Notice that she never seems to have traded at above 20 and immediately before the announcement she was trading in the single digits. I've had an on-going discussion with some friends about the value of inTrade numbers, and the anti-inTrade voices have been crowing this afternoon that Palin's pick shows the bankruptcy of prediction markets. "I argue against putting too much weight on prediction markets," one friend said, "which I think are interesting but not of tremendous political value or somehow more predictive that good polling data."

So does this show that the inTrade is bunk and we ought to rely on expertise?

It's hard to say. I can think of a couple of different stories that one might tell here. First, you could -- as I think my friend does -- assume that inTrade numbers are driven by essentially uninformed speculators responding to momentary fluctuations in the flow of information from the 24-hour news cycle. Better to ignore the noise and go with thoughtful experts who base their analysis on reasoned elaboration. The failure of inTrade to pick Palin is just a case in point.

There, is however, another story that we could tell. "Prediction market" is actually a misnomer. inTrade is not a predictor but rather an aggregator of information. If we assume that self-interested investors are not throwing their money away, then the markets should respond to the available information and provide us with a rough sense of the probability of particular outcomes given that information. Note, if we suppose that these markets will accurately gauge probabilities it doesn't follow that their predictions always come true. After all, sometimes improbable events happen. Also, the markets are going to at best reflect available information and sometimes key bits of information just aren't available.

Accordingly, it seems to me that we have three possible ways of evaluating the inTrade failure to pick Palin. First, inTrade may simply be bunk. Second, Palin's choice may simply have been a very improbable event that happened to come to pass. Third, it may be that in the period running up to the choice of Palin there just wasn't all that much relevant information available about the relative probabilities of who was being chosen.

If you think that the first answer is correct, then you ought get an inTrade account. There is good money to be made trading against the ignorant, CNN-driven masses. If you think that the second answer is correct, you should take comfort from the fact that fairy tales do indeed come true sometimes. If you think that the third answer is correct, then you ought to realize that the torrent of expert puditry is an illustration of the iron law of gaseous knowledge, namely that any amount of knowledge or information -- no matter how small -- can be puffed and expanded to fill any space of ignorance -- no matter how large.

Posted by Nate Oman at 01:43 PM | Comments (4) | TrackBack

Speech and the Politics of Presence

Democracy exercised in the presence of riot police. Free speech adjacent armored vehicles. Perhaps this is an overly dramatic way of describing otherwise unremarkable events of little consequence in the city of Denver during the Democratic Party convention. After all, relatively small protests in Denver will not amount to much practically speaking. Feared public disorder failed to manifest itself, and the poorly named “recreate 68” group failed to generate large crowds of protesters. If this failure means that the mayhem of 1968 has been avoided, then this failure is good for democracy. We want public political places to be occupied by persons exercising mutual respect, not engaging in violent confrontation. We also want public places to foster the presence of democratic participation. And that’s the problem with the reported large numbers of riot police in Denver. Public order is one thing, but public order with a heavy police presence is another. To state my concern simply: free speech requires a place in which one can speak, free from the dominating presence of the state; where fears of disorder allow government agents to dominate public places, then we suppress speech by suppressing the place of speech. Where we speak can sometimes be as important as what we say.

These pictures from the NY Times tell the story: a “free speech” cage constructed for “free speech,” a convention location completely fenced for security, riot-gear police controlling public space. These kinds of “free speech” tactics have become a staple at President Bush’s venues, rendering dissent invisible, and were used at convention sites in 2004, surviving judicial challenges. Timothy Zick has written about this problem here at CoOp in posts like this one, and I have written about this issue here. There is something discordant in the idea of free speech located in a guarded cage. There is also something discordant about a public sphere ringed by riot police. Yet, there is also something that has become increasingly ineffectual about politics in public – at least spontaneous public politics.

Hannah Arendt, for one, proclaimed the central importance of public speech and the public appearance of persons who could engage each other in discourse over public matters. Without the place of public appearances, she argued, we lose something central to both politics and personal identity. I think she was right about this, which is why I find the riot police, the cages, and the control of public space troubling. It is easy to find these official practices of no moment. As I’ve already suggested, it is not as if we expect any of the public appearances led by protesters to amount to much practically speaking. But our expectations are shaped by the very scripting of political events as they occur in carefully controlled environments like each political party’s conventions. Nothing, or very little, spontaneous happens, and there is no place in which undifferentiated members of the public encounter each other in a political setting. I do not intend to criticize conventions on this score – of course they want to control message, allow only party stalwarts to speak, etc. But the very event of the convention becomes a place of politics, and thus a place where others – call them dissenters, or those who want to emphasize their views – would like to make their views visible, even if only on the fringes. One group, the Iraq War Veterans Against the War led a peaceful “protest” march through Denver. Yet, the LA Times reports that the protest, as it approached the Pepsi Center, was increasingly enclosed by riot police, and unable to approach close to the venue. Here’s where the riot police, isolating the main political attraction and dominating all other public places, seem discordant with democratic practice. It becomes difficult to tell whether the show of state force is meant to provide security against the “threatening hordes” outside, or to say that politics shall only happen here, in the Pepsi Center, and nowhere else.

The importance of speech at specific places, and the form of public address, are ineliminable parts of our democratic practice. Martin Luther King’s speech on the mall was surely significant in part because of where it occurred and because of the number of people who could hear it in person. In this vein, Sen. Obama’s speech at the Democratic Convention at Mile High Stadium to over 75,000 people was significant for the public appearance in the presence of so many people. Public presence matters to our politics. This fact is why we cannot replace a politics of presence with a digital politics. Many people like me watched Sen. Obama’s speech on television, others on the web. One might argue that for us it did not matter whether Obama gave the speech in a studio or in a stadium. Yet it does matter – a lot – because presence and place matter to speech and politics.

Public presence, on the more spontaneous, small scale, has become relatively ineffectual, I would argue, because of the increased use of state power to control politics in public. Who wants to risk getting rounded up when the police decide to conduct a mass arrest? When they do so, because the arrests are not individualized, everyone in the area gets arrested, participant and observer alike. The persistence of these kind of practices make dissent more costly, and therefore less likely. No doubt, public dissent can become public disorder, creating risks for injuries and property as Seattle in 1999 demonstrated. Just the same, however, political dissent and discussion rendered publicly invisible creates its own risks for the vitality of our democracy. These latter risks are of far more consequence.

Posted by Thomas Crocker at 01:37 PM | Comments (4) | TrackBack

Partisanship vs/as Truth

In the space between the two political conventions, it's a good time to think about partisanship. Political philosopher Nancy L. Rosenblum has just published On the Side of the Angels: An Appreciation of Parties and Partisanship. It's a helpful corrective to the relativistic nonpartisanship that suffuses US media coverage of politics.

Consider, for instance, these lines from Bill Clinton's speech two days ago:

Look at the example the Republicans have set: American workers have given us consistently rising productivity. They've worked harder and produced more. What did they get in return? Declining wages, less than ¼ as many new jobs as in the previous eight years, smaller health care and pension benefits, rising poverty and the biggest increase in income inequality since the 1920s. American families by the millions are struggling with soaring health care costs and declining coverage. I will never forget the parents of children with autism and other severe conditions who told me on the campaign trail that they couldn't afford health care and couldn't qualify their kids for Medicaid unless they quit work or got a divorce.

Are these the family values the Republicans are so proud of? What about the military families pushed to the breaking point by unprecedented multiple deployments? What about the assault on science and the defense of torture? What about the war on unions and the unlimited favors for the well connected? What about Katrina and cronyism?

Now, from a nonpartisan, "objective media" perspective, that's an unfair screed. It focuses on the negative to the exclusion of anything positive. It can't possibly be the "truth," because the truth only emerges from full and fair debate between the "two sides" that exist on any issue.

But to the partisan, it's a fair account of the history of the past eight years or so. So who's right?

After reviewing political philosophy's hostility to parties, Rosenblum rises to their defense:

Parties create, not just reflect, political interests and opinions. They formulate “issues” and give them political relevance. Party antagonism “stages the battle”; parties create a system of conflict and draw the lines of division. Moving back and forth between metaphors of natural and artistic creation, Maurice Duverger tried to capture this shaping power: parties crystallize, coagulate, synthesize, smooth down, and mold. Creativity in politics is almost always identified with founding moments, constitutional design, transformative social movements, or revolution, not with “normal politics.” Modern party politics is the ordinary, not (ordinarily) extraordinary locus of political creativity.

The analogy to artistic creation here is particulary evocative. Art can teach us unique truths, but can also hymn the most destructive ideas. Politics is a realm of narrative, emotion, and common vision. Rosenblum argues that one has to accept the possibility of partisanship's harms if we're to have a politics capable of constructing anything at all.

The legal academy appears less and less receptive to such ideas, insisting instead that truth and goodness emerge out of compromise and debate between two sides. Consider, for instance, the work of Cass Sunstein, who's done a great deal to urge those on the opposite ends of the political spectrum to talk to one another. He certainly knows how to keep a conversation going. But if you listen to just a few minutes of this debate he has with Richard Epstein on the Obama candidacy, you quickly realize that "it takes two to tango." While Sunstein reflectively considers whether Obama is enough of a free trader, Epstein has painted a terrifying picture of progressives hellbent on apotheosizing union bosses, imposing confiscatory taxation on the hardworking, and Lindbergh-style isolationism.

Sunstein's theory and practice build on Rawls's idea of political liberalism--of a well-ordered polity where all respectfully debate their differences according to principles of public reason. (He's recently criticized George Lakoff's work for being too visceral, and failing to live up to that standard.) But the key to Rawlsian deliberativism is the proviso that society is indeed well-ordered.

Speeches like Clinton's (and Obama's last night) take aim at that assumption. They give the lie to what Rosenblum calls "[t]he array of complaints that comprise “progressive antipartyism” [in] political theory today." As I've argued before, mass politics is primarily about what issues are on the agenda--not principled deliberation on some pre-existing menu of options.

For a final example, consider the proper response to this claim, reflective of many elements of "free market" health policy circulating currently:

Almost one of every four Texas residents – 24.8 percent – were uninsured in 2006 and 2007. . . . But the numbers are misleading, said John Goodman, president of the National Center for Policy Analysis, a right-leaning Dallas-based think tank. Mr. Goodman, who helped craft Sen. John McCain's health care policy, said anyone with access to an emergency room effectively has insurance, albeit the government acts as the payer of last resort. (Hospital emergency rooms by law cannot turn away a patient in need of immediate care.)

"So I have a solution. And it will cost not one thin dime," Mr. Goodman said. "The next president of the United States should sign an executive order requiring the Census Bureau to cease and desist from describing any American – even illegal aliens – as uninsured. Instead, the bureau should categorize people according to the likely source of payment should they need care."

Now one can try to rationally persuade Mr. Goodman that his pollyanna views aren't all that responsive to the ultimate financial concerns of the 47 million uninsured. One could engage in disquisition about the nature of statistics, their accuracy, the difficulties of accounting for well-being in just a few numbers.

Or one could say this:

For over two decades, he's subscribed to that old, discredited Republican philosophy – give more and more to those with the most and hope that prosperity trickles down to everyone else. In Washington, they call this the Ownership Society, but what it really means is – you're on your own. Out of work? Tough luck. No health care? The market will fix it. Born into poverty? Pull yourself up by your own bootstraps – even if you don't have boots. You're on your own.

When you consider the extraordinary bias in what are often deemed "scientific" policy discourses, Rosenblum's case for parties is all the more compelling. Leave the "deliberative democracy" for places that already have universal health care, fair educational opportunity for all, and a sustainable energy policy.

Posted by Frank Pasquale at 10:02 AM | Comments (0) | TrackBack

Obama's Secret Identity Revealed!

I am facinated by Barak Obama. In part this is because I figure he is likely to be the next president, and in part because the combination of meteoric success and a limited public record has a tendency to make him into a kind of ink-blot test of people's hopes and fears. The resulting discussions are often very revealing, even if they are not revealing about Obama himself. Also, unlike most national politicians, he seems to be a genuinely thoughtful and even curious person. Too often democracy seems to reward shallow narcicissits.

Still, my suspicion is that -- stripped of the rhetoric -- Obama is a rather conventional left of center pol, and not being a big fan of left of center pols, I'm inclined to enjoy his eloquence and put my political hopes elsewhere. (Or simply jettison political hope.)

Cass Sunstein, however, seems to be out to persuade people like me to support Obama. He has done a nice podcast on why conservatives should support Obama, and now he's got an article in the New Republic explaining Obama's pragmatism. Sunstein writes of him:

When he offers visionary approaches, he does so as a visionary minimalist--that is, as someone who attempts to accommodate, rather than to repudiate, the defining beliefs of most Americans. His reluctance to challenge people's deepest commitments might turn out to be what makes ambitious plans possible--notwithstanding the hopes of the far left and the cartoons of the far right.

He goes on to insist, "Above all, Obama's form of pragmatism is heavily empirical; he wants to know what will work."

So it turns out that Obama is a minimalist empiricist who believes in market-based approaches for pursuing progressive ends. In short, Obama is...Cass Sunstein.

It's a good brief, but I am still left feeling like Herod Agrippa. (Cf. Acts 26:28)

Posted by Nate Oman at 09:21 PM | Comments (25) | TrackBack

Inspiration and Realism in Denver

Mary Dudziak provides some much-needed historical perspective on the Democratic nomination of Barack Obama. She notes that less than fifty years ago, Fannie Lou Hamer was brutally attacked for her civil rights work. Though she failed to get the Mississippi Freedom Democratic Party seated at the 1964 Democratic Convention, Hamer laid the groundwork for a more inclusive party. To many, Obama's nomination is the culmination of her and the MFDP's struggle.

But there are many signs that the struggle is only beginning. Jacob Weisberg canvasses the lingering legacy of racism in the US, and Patricia J. Williams puts it in vivid detail:

[W]hile some of us are listening to the soothing tones of National Public Radio, a much larger audience—and larger by millions—is listening to Rush Limbaugh singing those subterranean fears of “Barack, the magic Negro,” or to radio shock jocks cackling about “jigaboos,” or to Pat Buchanan fretting that Obama is a radical, unpatriotic, extremist “elitist” to whom the liberal media hands a pass as a “special-ed,” “affirmative-action” candidate. Not that any of them mean it in a racist way. Hey, lighten up. Don’t you have a sense of humor?

I have even heard reports of these sentiments from my mother, who, while in the waiting room for her podiatrist last week, overheard another woman declare she was voting for McCain because "the blacks are taking over." And this was in New Jersey, a long way from the South that terrorized Hamer.

These are the types of frightening and depressing sentiments that the US has to try to confront this election season. . . even as immense challenges mount elsewhere. All I can say is that it is heartening to see the pride at the Obama nomination here in Newark--a largely African-American city devastated by the slow-motion Katrinas of bad (or nonexistent) health and education policy for urban areas. When I think of the incredible challenges that the US faces, the courage and persistence evidenced by Hamer's and Obama's organizing work seems not merely helpful, but necessary.

Posted by Frank Pasquale at 08:43 PM | Comments (0) | TrackBack

The Evolution of the Political Spot

A while back, I blogged about the art of the political ad and several people pointed out the fact that ads had shortened greatly from 1964 to 1984. With the advent of YouTube, it seems that at least some political spots are getting longer, but that doesn't necessarily mean that we're getting more substance. What, for example, is it exactly that this is trying to say about Obama? I've watched it a couple of times now, and I am still at a loss as to what it tells me about his candidacy, other than the dubious information conveyed by an implicit endorsement from Cindy Lauper and George Costanza, et al. We get visual references to gas prices, war, and immigration, but not much more. Of course, "Daisy" was hardly a policy seminar, but the message was clear enough: A vote for Goldwater will lead to nuclear holocaust.

Posted by Nate Oman at 11:05 AM | Comments (4) | TrackBack

400 Horsemen vs. the Barackolypse (or McCainia)

Some on the right apparently have been debating whether the Democratic nominee merely "prepped the world for the Antichrist," or is the Antichrist himself. Luckily, the Wall Street Journal got Left Behind author Tim Lahaye to settle matters:

"The antichrist isn't going to be an American, so it can't possibly be Obama. The Bible makes it clear he will be from an obscure place, like Romania," the 82-year-old author said.

I guess we finally know the rationale for that "natural born citizen" clause in the Constitution.

In other news, Cass Sunstein suggests that the judiciary should be a steady redoubt for the far right well into the future:

[P]artisan voting is a serious problem in the federal judiciary. If the EPA issues a regulation that is aggressive in cleaning the air, or if the National Labor Relations Board resolves a dispute in favor of a union, a panel that consists solely of Republican appointees is unusually inclined to strike it down. . . .

[F]ederal agencies in an Obama or McCain administration are likely to make a number of decisions that are more liberal than those of the Bush administration. Many decisions will ultimately be challenged in federal court -- and the Republican-appointed judges who dominate the federal bench could well prove to be a big obstacle. . . . The voting behavior of [recent Republican] appointees has been clear: They show a distinctive tendency to strike down agency decisions that do not follow a conservative line.

In cyberlaw, I'm predicting the First Amendment will end up a major cudgel for the digital Lochnerism Julie Cohen first analyzed 10 years ago. In health law, we might see importation of the Chaouilli decision in Canada to vindicate some "fundamental right" to unconditionally private health care. Anyone want to nominate other areas of future judicial activism? Preemption?

Image Credit: UMKC Law School.

Posted by Frank Pasquale at 10:21 PM | Comments (1) | TrackBack

Hamdan, Human Rights, and John Edwards

Last week Salim Ahmed Hamdan was sentenced to 66 months in prison pursuant to his conviction for providing “material support for terrorism” before a military tribunal. His material support was comprised of driving Osama bin Laden around and serving as one of his body guards. Hamdan’s relatively short sentence, which will include time already served in detention at Guantanamo, will advance the issue of whether detainees who have served their punishment after conviction in the Administration’s military tribunals will be released, or will continue to be held as enemy combatants. Hamdan will likely complete his five and a half year sentence before a new administration is inaugurated. If President Bush does not release him immediately on completion of his sentence, that will leave the next administration with one more complicated problem to resolve. The NY Times reports that a Pentagon spokesperson “would not speculate’ on whether Hamdan would be released after completing his sentence.

Would it not violate Due Process to hold Hamdan indefinitely after completing his sentence for a criminal conviction? Under the reasoning provided by the Supreme Court in Hamdi, perhaps not.

Finding authority for detentions for the duration of the conflict against Taliban forces in Afghanistan under the Authorization to Use Military Force, the Hamdi Court concluded: “The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who ‘engaged in an armed conflict against the United States.’ If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the AUMF.” Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

I would assume that a conviction for material support of terrorism, in addition to the Combatant Status Review Tribunal determinations, would support the claim that Hamdan has been “legitimately determined to be [a] Taliban combatant[].” Thus, there will be an argument that Hamdan’s status has not changed as someone properly designated an enemy combatant, even if he has completed a sentence for a criminal conviction. With hostilities continuing, if not worsening, in Afghanistan, the scene is set for the ugly possibility that having failed to obtain a sought-after life sentence, the government might resume its practice of merely holding individuals for the duration of conflict under the AUMF. With both Presidential candidates vowing increased military activity in Afghanistan, in the near term, such detention would be indefinite.

There has been no shortage of criticism for this flawed system from human rights groups as well as governments abroad. This weekend President Bush gave a speech in Bangkok in which he spoke of his “deep concerns over religious freedom and human rights” in China. Putting pressure on other nations over their human rights abuses has been an important part of our foreign policy for over half a century, which has required the U.S. to present itself as that beacon of freedom and liberty. As many others have said many times, U.S. practices that have included torture and cruel, inhumane and degrading treatment, indefinite detentions, the attempt to evade constitutional checks by courts or Congress, and military tribunals have all undermined our international standing to speak about the human rights abuses of others. Becuase of these policies and practices, the President has undermined some of the moral authority that would ground his remarks about China’s human rights record.

For the reader who has made it to the end of this post, here is where John Edwards’ recent revelation of marital infidelity is relevant. Maureen Dowd comments on Edwards in the NY Times: “He has an affair with Hunter, while he’s honing his speech on the imperative to ‘live in a moral, honest, just America.’” Edwards receives particular condemnation not simply for his infidelity (and not simply for having placed the whole Democratic Party at risk), but for what the apparent hypocrisy might reveal about his character. If we translate at the national level “constitutional culture” for personal character, the worry is that our own apparent hypocrisy reveals something very troubling about our own constitutional culture. Tabloid T.V. apologies won’t do at the national level, but a new administration’s commitment to releasing Hamdan after serving his sentence, and shutting down further military tribunals in favor of civilian or military courts just might.

Posted by Thomas Crocker at 04:23 PM | Comments (2) | TrackBack

Tax Law Professor Expelled From Republican Party

Sarah's posts are so fun that I wanted to jump onto the tax bandwagon. Indeed, if I could just hit the trifecta by bringing together my latest obsession (imputing views based on political donations), Solove's caution about the pernicious effects of opensecrets, and something with an arguable tax hook, I'd be finished my blogging quota for the week.

Thank you, Delaware Republican Party!

Posted by Dave Hoffman at 10:21 AM | Comments (1) | TrackBack

Do We Need an “Arresting Afflatus”?

First of all, I would like to thank Dan for inviting me to join the Concurring Opinions community this month.

In a recent conversation I was reminded of this article about post-cold war conservative defections which appeared in Lingua Franca (a now-defunct magazine of ideas in which Alan Sokal revealed his hoax). In it, William F. Buckley, Jr. is asked in an interview to imagine who he would be if he were graduating from college in 2000. “What kind of politics would this youthful Buckley embrace?” He responded: “I'd be a socialist . . . [a] Mike Harrington socialist. . . . I'd even say a communist.” One reason for this rather stunning admission is that once the market ideal is entrenched as the dominant way of thinking, not only does it become “boring” as Buckley says, but it is also totalizing. One of the primary objections to old-style communism is the way that individual lives got processed in the totalizing system for the good of the class, the state, or the inevitable unfolding of historical dialectics. But is the emphasis on the market any less totalizing? Is the all-knowing and ever powerful market any less “boring” from the standpoint of human freedom than its vanquished communist counterpart? Similarly, in the market system, individual lives are constrained for the good of market efficiency. One should not complain about lost jobs or tightened credit we are told, because these are necessary to achieve overall market efficiency. After all, the constant, unthinking refrain today is that the market will solve everything. For the hypothetical young Buckley, this is a problem.

To be sure, the market-advocate will quickly point out that the “market” is an aggregate of individual decisions bubbling up from the bottom of the system, whereas the five-year plan was a bureaucratic mandate from the top down. Thus, the totalizing “market” is built on the actions of individual persons exercising individual liberty. Nonetheless, from the individual’s perspective, unable to influence either the market price of wheat or the five-year plan’s price of wheat, one totalizing impersonal system may have the same phenomenology as the other. Is $4 a gallon for gas experienced differently if one is told the market dictated the price rather than some five-year plan? Is the loss of a job any more heartening when informed that market efficiency and profit maximization dictated it? Perhaps, but only perhaps. The difference would partially depend on affective attachments one has to broader beliefs which are themselves the products of the totalizing system. If one is committed to the idea that market forces are fair and just, one may experience the impersonality of the $4 price differently. But of course, for most people, the idea that market forces are fair and just are themselves products of the market system itself (if one belonged to a different system, one would have different beliefs).

Buckley’s conservative heresy focuses attention on the political ramifications of this problem. How does one’s frustration with often intangible, impersonal, yet all-powerful institutions or systems like the market manifest itself in creative political thinking? It is easier to coordinate one’s politics against the communist menace than against the fragmented set of concerns represented by national security, energy policy, healthcare, social security, global warming, global poverty, HIV/AIDS, etc. Regarding this sort of list, Buckley commented that the difficulty would be “conjoining all of that into an arresting afflatus.” It is always much easier to coordinate one’s politics around a clearly defined enemy.

Corey Robin’s article in which Buckley’s statements appear also features an interview with Irving Kristol in which he claimed that the collapse of communism “deprived us of an enemy.” The existence of a supposed conservative malaise (the article was published in February 2001) hinged on the idea that with the collapse of the Soviet Union, and the ascendancy of the market, conservatives had lost their political raison d’etre. Without communism, the end of history was declared, and the West no longer had an enemy. As if history were staging a play, Act III ended with the Twentieth Century and history’s apparent end, and Act IV opened with history’s reemergence on September 11, 2001, giving the supposed flagging conservative cause a new enemy. This new enemy allows for an organizing politics, even if on a strained metaphor to the cold war. Mushroom cloud talk from Condaleeza Rice and others aside, the metaphor is pernicious because terrorist organizations are not a competing empire with thousands of ICBMs trained on U.S. cities. (One wonders how far the “necessity” talk from John Yoo and others would extend for unconstrained executive authority if the Soviet Union had not collapsed; it has gone quite far in the last seven years in the absence of anything like an analogous threat).

We have lived for a time, and may live some more, with terrorism playing that organizing role for our politics. Or, we may be able to think politically again about the ways our lives are substantially structured by a totalizing market system, and to seek creative solutions to address the public and its problems using what John Dewey called our creative intelligence. More than anything, Buckley’s provocative statement that he would be a socialist today suggests that rebellion against received ideas can be an important motivating value in politics. Whereas entrenched New Deal thinking was prevailing orthodoxy in his youth, the domination of a market mentality is in ours. The challenge Buckley identified is in creating the necessary “arresting afflatus” to provide an overall vision for a new politics. I find it interesting to observe the current Presidential campaign with this thought in mind.

Posted by Thomas Crocker at 10:48 AM | Comments (5) | TrackBack

Should People's Political Donations Be Public?

Pursuant to the Federal Election Campaign Act (FECA), people's campaign contributions must be accessible to the public. I've long found this to be problematic when applied to the campaign contributions of individuals. Certainly, information must be reported to the government to ensure that campaign contribution limits aren't exceeded. But I don't know why it is the public's business to know what candidates I've given money to and how much. Go to Moneyline CQ or Fundrace2008 or OpenSecrets.org and you can search for the campaign contributions of anyone. You can learn a person's address, occupation, and the amounts he/she contributed and to whom.

I find this problematic for at least two reasons.

1. I believe that the disclosure of people's campaign contributions violates the First Amendment. The First Amendment protects one's right to privacy in one's associations, and campaign contributions often reveal one's political party affiliation. I disagree strongly with Buckley v. Valeo, 424 U.S. 1 (1976), the U.S. Supreme Court decision that holds that FECA's public disclosure requirements satisfy First Amendment heightened scrutiny. The Court justified its holding based on the need to "alert the voter to the interests to which a candidate is most likely to be responsive," to "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity," and to "gather[] the data necessary to detect violations of the contribution limitations described above." The first function doesn't strike me as relevant when it comes to individual contributions. Is the fact that Person X contributed $100 to Candidate Y likely to reveal interests to whom Candidate Y will be beholden? The second function -- exposing corruption -- could be done by a government agency vetting the contributions. Likewise for the third function.

Professor William McGeveran makes a persuasive argument that Buckley's holding should be rethought in light of modern technology, namely searchable databases like the ones I mentioned above. He contends that people might be chilled from making political contributions because of negative professional consequences or the stigma of being associated with unpopular non-mainstream candidates. William McGeveran, McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1, 19, 30, 38 (2003).

2. Another problem with making the data so publicly accessible is that it facilitates abuse by employers or others who might discriminate against people because of their political views. For example, the DOJ Report on the illegal and improper hiring practices based on political beliefs by Monica Goodling and others demonstrates how readily accessible information about political contributions can be used in nefarious ways:

We found that Goodling’s Internet research on candidates for Department positions was extensive and designed to obtain their political and ideological affiliations.

We determined that while working in the OAG, Goodling conducted computer searches on candidates for career as well as political Department positions. . . . At some time during the year Williams served as White House Liaison, she had attended a seminar at the White House Office of Presidential Personnel and received a document entitled "The Thorough Process of Investigation." The document described methods for screening candidates for political positions and recommended using www.tray.com and www.opensecrets.org to find information about contributions to political candidates and parties. The document also explained how to find voter registration information.

Posted by Daniel J. Solove at 12:07 AM | Comments (12) | TrackBack

When To Turn Down a Tenured Law Professorship Job Offer

There's a very interesting NY Times article about Barack Obama's time teaching law at University of Chicago Law School. From the article:

Soon after [losing in the primary for a seat in the U.S. House of Representatives], the faculty saw an opening and made him its best offer yet: Tenure upon hiring. A handsome salary, more than the $60,000 he was making in the State Senate or the $60,000 he earned teaching part time. A job for Michelle Obama directing the legal clinic.

Your political career is dead, Daniel Fischel, then the dean, said he told Mr. Obama, gently. Mr. Obama turned the offer down. Two years later, he decided to run for the Senate. He canceled his course load and has not taught since.

Another interesting fact:

Mr. Obama arrived at the law school in 1991 thanks to Michael W. McConnell, a conservative scholar who is now a federal appellate judge. As president of The Harvard Law Review, Mr. Obama had impressed Mr. McConnell with editing suggestions on an article; on little more than that, the law school gave him a fellowship, which amounted to an office and a computer, which he used to write his memoir, “Dreams From My Father.”

The article also has posted some of Obama's class materials.

Posted by Daniel J. Solove at 10:25 PM | Comments (1) | TrackBack

No Place to Hide. . . .

Since privacy is my theme today, here's a nugget from the DOJ Hiring scandal report unearthed by Brian Leiter:

We found that Goodling’s Internet research on candidates for Department positions was extensive and designed to obtain their political and ideological affiliations. . . .[S]he had attended a seminar at the White House Office of Presidential Personnel and received a document entitled “The Thorough Process of Investigation.” The document described methods for screening candidates for political positions and recommended using www.tray.com and www.opensecrets.org to find information about contributions to political candidates and parties. The document also explained how to find voter registration information. In addition, the document explained how to conduct searches on www.nexis.com, and included an example of a search string that contained political terms such as “republican,” “Bush or Cheney,” “Karl Rove,” “Howard Dean,” “democrat!,” “liberal,” “abortion or pro-choice.” . . .

The key question now is: what's the remedy? Is it only possible to right this wrong by balancing several years of rightward bias with several years of leftward bias? There is a real conundrum here: if the department merely reverts to neutrality after several years of bias, there's little deterrent against this kind of conduct in the future. . . . though this diagram from Slate suggests that people other than the immunized Goodling may be in trouble here.

Posted by Frank Pasquale at 08:26 PM | Comments (9) | TrackBack

Daisy and the Bear

Campaign season got me trolling through YouTube today looking at old political ads. Needless to say, most of them are pretty bad but there are some that hold up remarkably well, particularlly those that manage to crytstalized an entire debate into a few well chosen images. For all of the debasement that TV has brought to American politics -- and I say this as someone who proudly doesn't have a television* -- there is a fine rhetorical art to the campaign spot. For my money, here are two masterpieces:

While I am one of those who thinks that ultimately the Reagan defense build up was justified at the time, this is hardly the most powerful logical argument in its favor. On the other hand, I admire the way that it manages to be both alarmist and understated at the same time. Of course, sometimes the best way to be alarmist is simply to be alarmist.

Here, in contrast to Reagan, LBJ whipsaws from understatement to overstatement. Still, like "The Bear" it is a marvelous attack ad that manages to make its most telling negative point without even mentioning the oponent's name.

Any other nominations for best political ad?

*Actually I have a TV, I just don't have cable or a TV antenna. I do, however, have a subscription to Netflix and The Ecnomist, which is enough to keep me happy.

Posted by Nate Oman at 08:07 PM | Comments (3) | TrackBack

The Best Commentary on that Idiotic New Yorker Cover. . .

that I've seen so far is from lawprof David Dante Troutt, writing in the Washington Independent:

[T]he meaning of its manifest vulgarity— depicting Michelle Obama as a Cleopatra Jones of anarchy; Barack Obama, defamed by, of all things, Islamic dress and linked once and for all with Osama bin Laden, burning . . . the American flag -- [is] up for grabs. . . .The cover is destructive and misguided satire because viewers act on its meanings independently, with no guidance from the satirist.

I know the folks who did this. I went to school with them, work with them, dine with them, pass them in the halls of my children’s school. I know them well enough that they are almost me. They are elitists, and you can know them by their smugness. Not only did they think this was funny and clever and smart in a pro-Obama way, but they figured that its edginess would separate the kindred readers who get it from the ignorant multitudes that would not. . . .

This is very Harvard, where I went to school; very New York City, where I live. Between then and now, I’ve watched the distance close between erudition and intellectual hipsterism. . . Like the Beltway they mock, they cannot help but interview each other again and again in order to understand the world. From within the four-corners of this downtown/Hamptons exclusivity, they never venture far -- unless it’s really, really far, like exotic.

I don't usually use words like "idiotic" on the blog, but I think it's appropriate here because it resonates with the word's root's original Greek connotation of personal, isolated, cut off (as in idiom or idiosyncrasy). Commentators like Troutt (and Glenn Greenwald) cannot remind us of the press's insularity too often.

Posted by Frank Pasquale at 09:05 AM | Comments (13) | TrackBack

McCain Not a U.S. Citizen?

Now wait. I am not saying Mr. McCain is evil or should not be President. Those may or may not be true statements depending on who one is. But this is a law blog and one of our former guests, Jack Chin, has an article about the legal question of Mr. Cain’s citizenship that has caught some attention. [Clarification: As a comment notes, the issue relates to the idea of natural born citizenship status]. The NY Times piece about the issue is worth the read. For one thing it cites to Jack’s paper on SSRN. And before folks think this is some new fangled attack, note that the law is old and as Jack put it “It’s preposterous that a technicality like this can make a difference in an advanced democracy, … But this is the constitutional text that we have.” On the other hand there is a lawsuit pending on the issue (it’s in the District Court of New Hampshire). So although Peter Spiro of Temple indicates that courts will not likely get near it, a few folks seem to have started their engines. Hey the Senate looked into its crystal ball (as opposed to the magic eight ball used for major decisions) passed a non-binding saying McCain is eligible to be President because as the Times put it “Its sponsors said the nation’s founders would have never intended to deny the presidency to the offspring of military personnel stationed out of the country.” Right. Regardless, the idea has tickled someone's imagination.

On a side note here’s a tip: Rather than invoking some notion of tea-leaf reading or channeling what the founders thought, try this on for size: it is just not logical that they wanted this result. After all maybe the founders thought that being born on a military base was a problem. One could be educated abroad which could open the door to brain-washing (oh no they didn’t have that at the founding, curses!) or improper exposure to foreign blood, air, and water would be an issue. Or maybe the result, although apparently enough of a problem that statutes were passed to fill a legal gap, was, just as Jack put it, “preposterous... But this is the constitutional text that we have.”

Posted by Deven Desai at 02:58 AM | Comments (5) | TrackBack

50 More Federal Judges

Law.com reports that under the Federal Judgeship Act of 2008 there would be 50 new federal judges (about 12 appellate and the rest district). What does this mean? More clerkships! Well there is a little more going on here. For example, if the bill passes, “none of the appointments could be made until the day after a new president takes office.” As the article points out there are around 45 spots open right now so it could be that close to 100 judgeships ride on this election. Mariano Cuellar apparently thinks this bill has only about a ten percent chance of passing in part because Congress has only a couple months left to do so.

If it does pass, expect the already heated exchanges and accusations about each party’s attempt to shape the country through the judiciary to go into a new phase of aggressiveness. So here is a gift research idea (unless of course someone has done this work). How often do judges adhere to party lines after they become Article III judges? The vetting process seems of late to be more intense about trying to find those who will step in line with a party doctrine. And it appears, stress appears, that many judges stick with those views. Whether that is true and really why that is so are two questions that merit some investigation. Concern about finding cushy jobs after being judge, moving up in the court system, or just good old fashion