The Volokh Conspiracy

There seems to be a strange subtext in some press stories hinting that the suspect in the Fort Hood shootings, Nidal Malik Hasan, had psychological problems or motivations of a kind that would somehow render his acts inconsistent with terrorism or with Islamic terrorism. Does the press realize that the psychological profile of a typical suicide bomber or religious mass murderer is hardly one of complete normality? 

The scholarship on the psychological makeup of terrorists is somewhat spotty, but in his 2005 Journal of Conflict Resolution article reviewing the literature, Jeff Victoroff identifies the following four characteristics in “typical” terrorists:

a. High affective valence regarding an ideological issue

[here Islam, jihad, or the Iraqi or Afghan Wars]

b. A personal stake—such as strongly perceived oppression, humiliation, or persecution; an extraordinary need for identity, glory, or vengeance; or a drive for expression of intrinsic aggressivity—that distinguishes him or her from the vast majority of those who fulfill characteristic a 

[here probably strongly perceived oppression, humiliation, or persecution]

c. Low cognitive flexibility, low tolerance for ambiguity, and elevated tendency toward attribution error 

[here there is alleged rigidity in personal relations consistent with low cognitive flexibility and low tolerance for ambiguity; we do not yet know if there was attribution error, such as unreasonably blaming Americans or Jews]

d. A capacity to suppress both instinctive and learned moral constraints against harming innocents, whether due to intrinsic or acquired factors, individual or group forces—probably influenced by a, b, and c.

[here we have not only Hasan’s actions as evidence, but also his words and the words of some of his friends]

Jeff Victoroff, “The Mind of the Terrorist: A Review and Critique of Psychological Approaches,” Journal of Conflict Resolution, 49: 3–42, 35 (Feb. 2005).

If what has been reported about Hasan so far is true, his biography may not be usual. But Hasan would seem to fit the psychological profile of an Islamic terrorist almost perfectly — indeed, about as well as Mohamed Atta, Osama Bin Laden, or Khalid Sheikh Mohammed. 

AP reports on a new Fannie Mae program to allow homeowners who can’t pay their mortgages to rent instead:

Thousands of borrowers on the verge of foreclosure will soon have the option of renting their homes from Fannie Mae, under a policy announced Thursday.

The government-controlled company, through its new “Deed for Lease” program, will allow borrowers to transfer ownership to Fannie Mae and sign a one-year lease, with month-to-month extensions after that.

The program will “eliminate some of the uncertainty of foreclosure, keeps families and tenants in their homes during a transitional period, and helps to stabilize neighborhoods and communities,” Jay Ryan, a Fannie Mae vice president, said in a statement.

But the effort is likely to affect a relatively small number of homeowners. In the first half of the year, Fannie Mae took back about 1,200 properties through this process, known as a deed-in-lieu of foreclosure. That pales in comparison to the 57,000 foreclosed properties the company repossessed in the period. . . . 

The rental program is designed to help homeowners who don’t qualify for a loan modification under the Obama administration’s plan, but still want to remain in their homes. . . . 

Fannie Mae has hired an outside company, which officials declined to identify, to manage the properties. 

In the Depression, when the government took over late or delinquent mortgages, many people just stopped paying because they knew that the federal government usually didn’t have the stomach to foreclose.

With its new rental program and Fannie Mae’s superb record of planning and management, what could possibly go wrong?

During Tuesday’s lunch program at CNBC, anchor Bill Griffith asked who was behind the demonstrations at the American Bankers Association meetings in Chicago. The answer is clear: SEIU and a coalition of organizations, many of which are related with ACORN or that have commonly partnered with ACORN over the years. 

A few weeks ago, I was solicited to participate in today’s demonstration by a robocall. (My guess is that I was selected because I am a registered Democrat –- perhaps also because I live in a zip code with a large African-American population and a history of ACORN-related organizing.) 

Given the option of endorsing the effort or learning more, I chose learning more. The robocall then revealed that I was being solicited by the SEIU Illinois Council. 

The phone call then directed me to a website run by a coalition that included several organizations related to ACORN or run by former ACORN officials. (In Illinois, for example, ACORN mostly shut down in 2008, with many of its members moving over to Action Now.) The head of SEIU Illinois Council (the group that took credit for my robocall) is Tom Balanoff, the labor leader who was so close to Obama that he was chosen as Blagojevich’s go-between in Blagojevich’s effort to shake down the Obama team. One of the improper proposals that Blagojevich floated was a job at Change to Win, another of the organizations that is sponsoring today’s demonstrations against bankers. Another sponsor is Citizen Action, the organization that received a large, suspicious payment from the Obama campaign. 

A week after the phone call, I received a letter in the mail that began:

Dear Voter:

Thank you for agreeing to join the thousands of people from around the country to tell the American Bankers Association—Enough is Enough!

Note that I did NOT agree to join and I did NOT give SEIU my address, but they probably got it from the voters list. (Given how they misrecorded my preferences, I hope that SEIU is not one of the groups that the Census has hired to record information on people for the 2010 Census.)

So who is behind today’s anti-banker demonstrations? It’s the usual suspects: primarily SEIU, other ACORN affiliated organizations, and groups that traditionally partnered with ACORN in its campaigns against banks.

Yet because of the closeness of the usual suspects to the Obama campaign and the Obama Administration, the more interesting question is: Did the White House put SEIU and other ACORN-related groups up to this? Given that ACORN and its partners have been demonstrating against banks for over a decade, I think that the answer is very probably “No.”

More at Malkin.

MSNBC is reporting that Justice Ruth Bader Ginsburg was hospitalized after she fell out of her seat in an airplane before takeoff. “Extreme drowsiness” from a combination of a prescription sleeping pill and an OTC cold medicine was blamed.

UPDATE: Reports say that Ginsburg was kept overnight and released this morning.

2D UPDATE: The statement from the Court:

U.S. Supreme Court Justice Ruth Bader Ginsburg was taken to the Washington Hospital Center at approximately 11:15 p.m. Wednesday evening after an apparent adverse reaction to a sleeping aid combined with cold medication she took immediately after boarding an overnight flight bound for London. Prior to the plane taking off, the Justice experienced extreme drowsiness causing her to fall from her seat. Paramedics were called and the Justice was taken to the Washington Hospital Center as a precaution.

Justice Ginsburg was evaluated at the hospital and she was found to be in stable health. Doctors attributed her symptoms to a reaction caused by the combination of a prescription sleeping aid and an over-the-counter cold medication. She was admitted overnight for observation and was released this morning. 

Unlike in the US, employment is rising in Canada (as it is in Australia).

It is hard to tell whether this difference is mainly because Canada benefits disproportionately from natural resources (and from its willingness to make use of them) or because the US’s stimulus program is damaging the long-term health of the US economy — or whether there is some other reason.

ACORN may have been trying to cover up which organizations are part of ACORN by scrubbing its website. Not only did ACORN and SEIU share board members, but until a month ago they appeared to share the same headquarters address in New Orleans: 1024 Elysian Fields Ave. This is, of course, the same address from which Barack Obama received his first out-of-state donation (from the SEIU Local 880 Political Fund) back in November 1995 (with the exception of what appears to be a September 1995 donation from his college roommate or his family in New York). 

When the latest ACORN scandals broke a few weeks ago, I went to its national site and downloaded ACORN’s list of Louisiana-based organizations. That list has now disappeared from that site (but might still be viewable in this cache, and I also retained screen grabs).

In early September, this was the list of ACORN organizations located in Louisiana as presented on ACORN’s own national website:

Contact ACORN®
Association of Community Organizations for Reform Now
Louisiana 

ACORN® National
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-0044
fax: 504–944-7078
email: chieforg@acorn.org 

ACORN®
5177 Greenwell Springs Road
Baton Rouge, LA 70806
225–925-5558
fax: 225–923-3144
email: laacorn@acorn.org 

ACORN®
1721 Jake Street
Lake Charles, LA 70601
337–436-0245
fax: 337–494-6273
email: laacorn@acorn.org 

ACORN®
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-0044
fax: 504–943-3842
email: laacorn@acorn.org 

AHC
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-7663
fax: 504–947-1868
email: ahclalcno@acorn.org
website: www.acornhousing.org 

Louisiana ACORN
Fair Housing Organization
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-0044 x110
fax: 504–943-3842
website: www.acornfairhousing.org 

ALERT
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–948-9560
fax: 504–949-4713
email: ccilegalsup@acorn.org 

AISJ
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-5713
email: aisj@acorn.org 

SEIU LOCAL 100
5177 Greenwell Springs Road
Baton Rouge, LA 70806
225–923-3102
fax: 225–923-3144
email: seiu100labr@acorn.org
website: www.seiu100.org 

SEIU LOCAL 100
149 W. 18th St.
Lake Charles, LA 70601
337–494-6261
fax: 337–494-6273
email: seiu100lasw@acorn.org
website: www.seiu100.org 

SEIU LOCAL 100
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-8864
fax: 504–944-3157
email: seiu100lano@acorn.org
website: www.seiu100.org 

SEIU LOCAL 100
5000 Greenwood Road
Shreveport, LA 71109
318–631-5667
fax: 318–631-2509
email: seiu100labr@acorn.org
website: www.seiu100.org 

HOTROC
1024 Elysian Fields
New Orleans, LA 70117
504–943-8864
email: hotroc@acorn.org
website: www.hotroc.org 

Not only were four SEIU units listed on ACORN’s main Louisiana page as ACORN organizations, but the official email addresses for all four SEIU units ended in “@acorn.org.”

In the (UK) Independent, Robert Fisk, who has wide contacts in the Middle East, reports on “secret meetings . . . by finance ministers and central bank governors in Russia, China, Japan and Brazil to work on” an Arab scheme that “will mean that oil will no longer be priced in dollars.”

In the most profound financial change in recent Middle East history, Gulf Arabs are planning – along with China, Russia, Japan and France – to end dollar dealings for oil, moving instead to a basket of currencies including the Japanese yen and Chinese yuan, the euro, gold and a new, unified currency planned for nations in the Gulf Co-operation Council, including Saudi Arabia, Abu Dhabi, Kuwait and Qatar.

Secret meetings have already been held by finance ministers and central bank governors in Russia, China, Japan and Brazil to work on the scheme, which will mean that oil will no longer be priced in dollars.

The plans, confirmed to The Independent by both Gulf Arab and Chinese banking sources in Hong Kong, may help to explain the sudden rise in gold prices, but it also augurs an extraordinary transition from dollar markets within nine years. 

The Americans, who are aware the meetings have taken place – although they have not discovered the details – are sure to fight this international cabal which will include hitherto loyal allies Japan and the Gulf Arabs. Against the background to these currency meetings, Sun Bigan, China’s former special envoy to the Middle East, has warned there is a risk of deepening divisions between China and the US over influence and oil in the Middle East. “Bilateral quarrels and clashes are unavoidable,” he told the Asia and Africa Review. “We cannot lower vigilance against hostility in the Middle East over energy interests and security.”

This sounds like a dangerous prediction of a future economic war between the US and China over Middle East oil – yet again turning the region’s conflicts into a battle for great power supremacy. China uses more oil incrementally than the US because its growth is less energy efficient. The transitional currency in the move away from dollars, according to Chinese banking sources, may well be gold. An indication of the huge amounts involved can be gained from the wealth of Abu Dhabi, Saudi Arabia, Kuwait and Qatar who together hold an estimated $2.1 trillion in dollar reserves.

The decline of American economic power linked to the current global recession was implicitly acknowledged by the World Bank president Robert Zoellick. “One of the legacies of this crisis may be a recognition of changed economic power relations,” he said in Istanbul ahead of meetings this week of the IMF and World Bank. But it is China’s extraordinary new financial power – along with past anger among oil-producing and oil-consuming nations at America’s power to interfere in the international financial system – which has prompted the latest discussions involving the Gulf states.

Brazil has shown interest in collaborating in non-dollar oil payments, along with India. Indeed, China appears to be the most enthusiastic of all the financial powers involved, not least because of its enormous trade with the Middle East.

Note that the Euro, but not the US dollar, is projected to be part of the basket currency.

This effort parallels efforts to replace the US dollar as the world reserve currency. One aspect of having a multicultural president who doesn’t embrace American exceptionalism is that this administration seems to be “quite open” to international proposals to replace — and thus undermine — the dollar.

UPDATE: On CNBC on Tuesday morning, Saudi Central Bank Governor Muhammad al-Jasser denied Robert Fisk’s report of a plan to replace the dollar in oil trading, but he didn’t rule it out for the future.

On the New York Times Caucus blog, John Harwood revealed that the Obama Administration is considering “a new package of tax cuts and other job creation measures.”

Privately, Mr. Obama’s economic advisers are sifting options for a new package of tax cuts and other job creation measures to be unveiled in next year’s State of the Union address — or earlier if pressure for action becomes irresistible.

On CNBC at about 1:01 ET, John Harwood explained his cryptic comments by saying that among the proposals being considered are “tax credits for new hires.”

Imagine you are a small businessperson thinking about adding an employee. Should you hire now — or wait until next February to see if you can get a tax credit for hiring that person.

If employers become like American car buyers waiting for the next round of industry rebates or government give-aways, then the employment picture will deteriorate further.

It’s not hard to see how to promote employment: lower FICA taxes for everyone — immediately.

I have been surprised at some of the criticism of President Obama for going to Copenhagen to lobby for the Olympics. Few commentators bother noting that, had Obama NOT gone to Copenhagen, many would have been blamed him for Chicago’s losing its bid. 

Most of us would have quite reasonably — though erroneously — attributed at least Chicago’s elimination on the first ballot (if not necessarily its defeat) to his not attending.

And some critics might have called him arrogant for just “phoning it in” and assuming that merely sending the First Lady was all that was needed to wow the world. 

Bank Analyst Meredith Whitney in the Wall Street Journal:

Anyone counting on a meaningful economic recovery will be greatly disappointed. How do I know? I follow credit, and credit is contracting. Access to credit is being denied at an accelerating pace. Large, well-capitalized companies have no problem finding credit. Small businesses, on the other hand, have never had a harder time getting a loan.

Since the onset of the credit crisis over two years ago, available credit to small businesses and consumers has contracted by trillions of dollars, and that phenomenon is reflected in dismal consumer spending trends. Equally worrisome are the trends in small-business credit, which has contracted at one of the fastest paces of any lending category. Small business loans are hard to find, and credit-card lines (a critical funding source to small businesses) have been cut by 25% since last year.

Unfortunately for small businesses, credit-line cuts are only about half way through. Home equity loans, also historically a key funding source for start-up small businesses, are not a source of liquidity anymore because more than 32% of U.S. homes are worth less than their mortgages.

Why do small businesses matter so much? In the U.S., small businesses employ 50% of the country’s workforce and contribute 38% of GDP. Without access to credit, small businesses can’t grow, can’t hire, and too often end up going out of business. What’s more, small businesses are often the primary source of this country’s innovation. Apple, Dell, McDonald’s, Starbucks were all started as small businesses.

What’s especially disturbing is how taxpayer dollars have supported “too big to fail” businesses yet left small businesses unassisted and at a significant disadvantage. Small businesses do not have the same access to government guarantees on their debt. After all, most of these small businesses don’t issue public debt. . . .

I believe that we are only in the early stages of the second half of this credit cycle. I expect another $1.5 trillion of credit-card lines to be removed from the system by the end of 2010. This includes not only the large lenders reducing exposure but also the shuttering of several major subprime credit-card lenders. Beginning in the fourth quarter of 2007, lenders began reducing available credit by zip code. During the past four quarters, lenders have cut “inactive” accounts (whether or not the customer viewed the account as a liquidity vehicle).

The next phase will likely be credit-line cuts as lenders race to pre-emptively protect themselves from regulatory changes associated with the Credit Card Accountability, Responsibility and Disclosure Act, passed in May of this year, and the 2008 Unfair and Deceptive Acts and Practices Act.

Regulators should be mindful that regulatory change during the midst of a credit crisis often ends with unintended consequences. Those same consumers that regulators are trying to help are actually being hurt by a vast reduction in available credit.

UPDATE: From what I see, Whitney is right that credit remains very tight. I have heard from some friends who carry large credit card balances that before the new federal credit card laws took effect in August their credit card lines were cut to just above their existing balances. 

The home appraisal fiasco is causing many signed contracts based on mortgage funding to fall through. And getting jumbo loans (over $417,000) for second homes is extremely difficult today, with only a few national lenders even considering such loans. 

Though I am a Chicagoan who is rooting for Rio — not Chicago — to win the 2016 Olympic bid, I think the criticism of President Obama for flying to Copenhagen to lobby the Olympic Selection Committee is silly. A modern president is working at least 16 hours most days (Reagan being the only exception I’m aware of). Whatever Obama’s strengths and shortcomings might be, loafing is not one of them. 

I think this travel criticism of Obama is about as ridiculous as the grief that George W. Bush used to get for going to his ranch in Texas for most of August.

The idea that you can’t travel and work used to be more common than it is today — and it reflected an earlier period when it was often impossible to do so.

I remember one December night in 1972 going to visit my (then future) wife’s maternal grandparents, the Ackermans, who lived on a farm between Freeport, IL (population about 30,000) and Rockford, IL (population about 140,000). 

They were both of German farm stock (Grandma Ackerman’s maiden name was also Ackerman, which means “farmer”), and German was the language used in their home in the 1920s. 

They worked long and hard on the farm and did little else. In the early 1970s, they had not been to Rockford, which was about 15 miles away, for several decades, and they had not been to Freeport, less than 10 miles away, for at least 5 years. They hated daylight savings time because (as Grandma Ackerman explained to me) it was bad for their cows.

That night, when their TV showed the face of Richard Nixon (whom I disliked), I asked Grandma Ackerman what she thought of him. She answered, “I guess that Nixon guy is OK, but every time I see him, he’s getting into a helicopter or walking off a plane. I wish he’d stay in one place and do a little work.”

In Grandma Ackerman’s world, someone who traveled a lot was neglecting his chores. In the world that Obama inhabits, however, travel is not a serious impediment to performing most of his duties. 

And if nonetheless Obama’s critics are correct and it slows down his legislative agenda, that wouldn’t be all bad, would it?

LA TIMES BLOG:

More than two years after Dan Rather filed a $70-million lawsuit against CBS for breach of contract and fraud, a New York Supreme Court appellate division has tossed out his claim.

The ruling, handed down today, dismissed Rather’s claims that CBS News broke his contract and committed fraud by sidelining him in the wake of a controversial story he reported about President George W. Bush’s Vietnam-era service in the Texas Air Guard. 

Here is much of the opinion:

CATTERSON, J.

This action asserting breach of contract and related tort claims arises out of a September 8, 2004 broadcast that plaintiff Dan Rather narrated on the CBS 60 Minutes II television program about then President George W. Bush’s service in the Texas Air National Guard. Rather alleges that CBS disavowed the broadcast after it was attacked by Bush supporters, and fraudulently induced him to apologize personally for the broadcast on national television as well as to remain silent as to his belief that the broadcast was true. Rather alleges that, following President Bush’s re-election, CBS informed him that he would be removed as anchor of the CBS Evening News. Rather claims that although his employment agreement required that, in the event he was removed as anchor, CBS would make him a regular correspondent on 60 Minutes or immediately pay all amounts due under the agreement and release him to work elsewhere, CBS kept him on the payroll while denying him the opportunity to cover important news stories until May 2006 when it terminated his contract, effective June 2006.

Rather commenced this action against CBS Corporation, Viacom Inc., and individual defendants Leslie Moonves, Sumner Redstone and Andrew Heyward in September 2007. He asserted, inter alia, claims of breach of contract and breach of fiduciary duty against CBS; claims of fraud against CBS and the individual defendants and a claim of tortious inducement of breach of contract against Viacom and the individual defendants.

Now, Rather appeals and defendants CBS Corporation and Viacom Inc. cross-appeal from orders entered by Supreme Court on April 11, 2008 and September 25, 2008, which granted defendants’ motion to dismiss the claims for fraud, breach of the implied covenant of good faith and fair dealing and tortious interference with contract, and denied defendants’ motion to dismiss the claims for breach of contract and breach of fiduciary duty.

For the reasons set forth below, this Court finds that the motion court erred in denying the defendants’ motion to dismiss the claims for breach of contract and breach of fiduciary duty, and [*3]therefore we find the complaint must be dismissed in its entirety. . . . 

At the outset, we find that Supreme Court erred in declining to dismiss Rather’s breach of contract claim against CBS. Rather alleges that he delivered his last broadcast as anchor of the CBS Evening News on March 9, 2005, and that, since he was only nominally assigned to 60 Minutes II and then 60 Minutes, he should have received the remainder of his compensation under the agreement in March 2005. Rather claims that, in effect, CBS “warehoused” him, and that, when he was finally terminated and paid in June 2006, CBS did not compensate him for the 15 months “when he could have worked elsewhere.” This claim attempts to gloss over the fact that Rather continued to be compensated at his normal CBS salary of approximately $6 million a year until June 2006 when the compensation was accelerated upon termination, consistent with his contract.

Contractually, CBS was under no obligation to “use [Rather’s] services or to broadcast any program” so long as it continued to pay him the applicable compensation. This “pay or play” provision of the original 1979 employment agreement was specifically reaffirmed in the 2002 Amendment to the employment agreement.

That Amendment also provided, in subparagraph 1(g), that if CBS removed Rather as anchor or co-anchor of the CBS Evening News and failed to assign him as a correspondent on 60 Minutes II or another mutually agreed upon position, the agreement would be terminated, Rather would be free to seek employment elsewhere, and CBS would pay him immediately the remainder of his weekly compensation through November 25, 2006.

We agree that subparagraph 1(g) must be read together with the subparagraph 1(f), which provided that if CBS removed Rather from the CBS Evening News, it would assign him to 60 Minutes II “as a full-time Correspondent,” and if 60 Minutes II were canceled, it would assign him to 60 Minutes as a correspondent “to perform services on a regular basis.” However, this construction does not render any language of the agreement inoperative, since, consistent with the “pay or play” clause, neither subparagraph 1(g) nor 1(f) requires that CBS actually use Rather’s services or broadcast any programs on which he appears, but simply retains the option of accelerating the payment of his compensation under the agreement if he is not assigned to [*4]either program.

It is clear that subparagraph 1(g) applies only to a situation where CBS removed Rather as anchor of CBS Evening News and then failed to assign him “as a Correspondent on 60 Minutes II.” The amended complaint alleges that when Rather no longer performed anchor duties at CBS, he was assigned to 60 Minutes II. Thus, Rather implicitly concedes that CBS fully complied with subparagraph 1(g).

Supreme Court erred in finding that subparagraph 1(g) modified the “pay or play” provision when it ignored the initial prefatory clause to the rest of that subparagraph, which states “[e]xcept as otherwise specified in this Agreement.” As the defendants correctly assert, the seven words are crucial because they require subparagraph 1(g) to be read together with the “pay or play” provision, and thus, subparagraph 1(g) cannot modify the “pay or play” provision to mean that CBS must utilize Rather in accordance with some specific standard by featuring him in a sufficient number or types of broadcasts. As the defendants aptly observed, “the notion that a network would cede to a reporter editorial authority to decide what stories will be aired is absurd.”

Rather’s claim for lost business opportunities due to CBS’s failure to release him to seek other employment is insufficiently supported. Since, according to Rather’s own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time. Rather’s claim for damages for loss of reputation arising from the alleged breach of contract is not actionable. Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299 (1st Dept. 1977).

Rather’s cause of action for breach of fiduciary duty must also be dismissed. Supreme Court held that the issue of “whether a fiduciary duty has been created in the course of the long relationship between Rather and CBS is really a question of fact.” Previously, the court determined that “the length of [Rather’s] contractual relationship with [CBS], and the nature of the service that [Rather] performed under his contracts” created an issue of fact that could not be resolved on motion. This was error.

Rather claims that his “four-decade history” with CBS constituted a “special relationship that imposed fiduciary duties upon CBS toward [Rather].” The law in this Department, and indeed enunciated in every reported appellate-division-level case, is that employment relationships do not create fiduciary relationships. Simply put, “[the employer] did not owe plaintiff, as employee, a fiduciary duty.” . . . 

We affirm dismissal of Rather’s fraud claims against CBS and the individual defendants although we find that Supreme Court erred in its rationale for the dismissal as it also erred in rejecting the defendants’ other challenges to the fraud claim. . . . 

Rather alleges that various misrepresentations ( e.g., promises to publicly defend his reputation and to conduct an independent investigation into the 2004 broadcast, and assurances that CBS intended to use his talents fully and to extend his contract, which was due to expire on November 25, 2006) induced him to remain silent about his role in the broadcast and to remain with CBS, where he was allegedly “warehoused” until the completion of his contract. As a result, he alleges he suffered money and reputation damages. Relying on Rather’s well-footnoted appellate brief, this Court was already cognizant of his argument that, following the completion of his CBS contract, his compensation at HDNet was less than the $4 million a year established as an approximate market rate for comparable journalists. However, for reasons set forth here, this information was not required for our analysis, and the lack of it was not the reason for affirming dismissal. . . . 

Rather’s claim that, but for CBS’ fraud, he could have had more remunerative employment than that which he ultimately obtained at HDNet is unavailing. “[T]he loss of an alternative contractual bargain [...] cannot serve as a basis for fraud or misrepresentation damages because the loss of the bargain was undeterminable and speculative.’” Lama, 88 N.Y.2d at 422, [further citation omitted].

Rather claims, based on his value and the value of similar professionals in the industry, that he would have been paid $4 million annually from 2005 through 2010. However, while claiming that he had an “agreement-in-principle” with CBS in the summer of 2004 to extend his contract, he alleges in the amended complaint that he had an unwritten “proposal” that “contemplated” a contract extension, and the terms of the proposal were compensation of $4 million for the first 19 months and $2 million annually thereafter. Rather admits that, the broadcast and its aftermath aside, CBS was already contemplating that he would step down from the anchor position in 2006 and assume a reduced role. . . .

Even if Rather pled pecuniary loss sufficiently to satisfy the Lama standard, his claim would nonetheless fail. Although allegations that defendants made statements to the general public, for example, that they falsely blamed Rather for alleged errors in the broadcast, may constitute a defamation claim [citations omitted], they are time-barred. Furthermore, Rather’s claim of under-use merely recasts his breach of contract claim in terms of fraud. . . .

Even if Rather had alleged “a breach of duty which is collateral or extraneous to the contract between the parties” Krantz v Chateau Stores of Canada . . . , he failed to adequately allege damages.

To the extent Rather claims that he should have been released from the agreement earlier to pursue other opportunities, this claim is duplicative of his breach of contract claim. . . . Similarly, Rather’s claim for breach of the implied covenant of good faith and fair dealing was properly dismissed by Supreme Court for being duplicative of his breach of contract claim. . . . 

Finally, Supreme Court properly dismissed the claim of tortious interference with a contract as against CBS and Viacom. First, CBS asserts correctly that Viacom is not a proper party to this action. . . . Second, as to the claim against CBS, the court correctly applied the economic interest doctrine to dismiss this claim against the corporate defendant. . . . Rather’s bare allegations of malice do not suffice to bring the claim under an exception to the economic interest rule. . . . Since on appeal, Rather has not addressed his argument as to this cause of action to the individual defendants, we deem the argument abandoned. In any event, there is no particularized pleading of allegations that the acts committed by the individual corporate employees were either beyond the scope of their employment or motivated by their desire for personal gain. . . . 

Accordingly, the judgment of the Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 14, 2008, should be modified, on the law, to grant the motion to dismiss the causes of action for breach of contract and breach of fiduciary duty, and otherwise affirmed, with costs. Judgment, same court and J.H.O., entered September 30, 2008, dismissing the amended complaint as against Viacom, Inc. and dismissing the causes of action for fraud and tortious interference with contract as against CBS Corporation, and bringing up for review an order, same court and J.H.O., entered September 23, 2008, which granted CBS and Viacom’s motion to the extent it sought to dismiss the causes of action for fraud and tortious interference with contract and denied the motion to the extent it sought to dismiss the cause of action for breach of fiduciary duty, should be modified, on the law, to dismiss the remaining causes of action against CBS, and otherwise affirmed, with costs. Plaintiff’s appeals from the aforesaid orders should be dismissed, without costs, as subsumed in the appeals from the respective judgments. The Clerk is directed to enter judgment in favor of [*9]defendant CBS dismissing the amended complaint as against it.

All concur.

[UPDATE: Note that Rather was still claiming that the false CBS story was true. I have not seen anything yet on whether Rather will appeal to the New York Court of Appeals, but it won’t surprise me if he does.]

When I was running university film societies in the 1970s and early 1980s, I considered Roman Polanski’s Chinatown the best film made in the 1970s. I don’t know what I would think today because I haven’t seen it for three decades. And I still consider Rosemary’s Baby one of the best horror movies ever made.

I mention this because good artists are not necessarily good people and bad people are not necessarily bad artists. 

The first writer I encountered who explored this issue was George Orwell in his essay on Dali. The essay is also memorable because its second sentence contains one of Orwell’s most resonant ideas: “any life when viewed from the inside is simply a series of defeats.” 

Notes on Dali

George Orwell

Autobiography is only to be trusted when it reveals something disgraceful. A man who gives a good account of himself is probably lying, since any life when viewed from the inside is simply a series of defeats. However, even the most flagrantly dishonest book (Frank Harris’s autobiographical writings are an example) can without intending it give a true picture of its author. Dali’s recently published Life [The Secret Life of Salvador Dali (The Dial Press, 1942)] comes under this heading. Some of the incidents in it are flatly incredible, others have been rearranged and romanticised, and not merely the humiliation but the persistent ordinariness of everyday life has been cut out. Dali is even by his own diagnosis narcissistic, and his autobiography is simply a strip-tease act conducted in pink limelight. But as a record of fantasy, of the perversion of instinct that has been made possible by the machine age, it has great value.

Here, then, are some of the episodes in Dali’s life, from his earliest years onward. Which of them are true and which are imaginary hardly matters: the point is that this is the kind of thing that Dali would have liked to do.

When he is six years old there is some excitement over the appearance of Halley’s comet:

* Suddenly one of my father’s office clerks appeared in the drawing-room doorway and announced that the comet could be seen from the terrace.... While crossing the hall I caught sight of my little three-year-old sister crawling unobtrusively through a doorway. I stopped, hesitated a second, then gave her a terrible kick in the head as though it had been a ball, and continued running, carried away with a ‘delirious joy’ induced by this savage act. But my father, who was behind me, caught me and led me down in to his office, where I remained as a punishment till dinner-time.” 

A year earlier than this Dali had “suddenly, as most of my ideas occur,” flung another little boy off a suspension bridge. Several other incidents of the same kind are recorded, including (this was when he was twenty-nine years old) knocking down and trampling on a girl “until they had to tear her, bleeding, out of my reach.”

When he is about five he gets hold of a wounded bat which he puts into a tin pail. Next morning he finds that the bat is almost dead and is covered with ants which are devouring it. He puts it in his mouth, ants and all, and bites it almost in half.

When he is an adolescent a girl falls desperately in love with him. He kisses and caresses her so as to excite her as much as possible, but refuses to go further. He resolves to keep this up for five years (he calls it his “five-year plan”), enjoying her humiliation and the sense of power it gives him. He frequently tells her that at the end of the five years he will desert her, and when the time comes he does so.

. . . When he first meets his future wife, Gala, he is greatly tempted to push her off a precipice. He is aware that there is something that she wants him to do to her, and after their first kiss the confession is made:

* I threw back Gala’s head, pulling it by the hair, and trembling with complete hysteria, I commanded: “Now tell me what you want me to do with you! But tell me slowly, looking me in the eye, with the crudest, the most ferociously erotic words that can make both of us feel the greatest shame!”

* Then Gala, transforming the last glimmer of her expression of pleasure into the hard light of her own tyranny, answered: “I want you to kill me!”

He is somewhat disappointed by this demand, since it is merely what he wanted to do already. He contemplates throwing her off the bell-tower of the Cathedral of Toledo, but refrains from doing so.

. . . Of course, in this long book of 400 quarto pages there is more than I have indicated, but I do not think that I have given an unfair account of his moral atmosphere and mental scenery. It is a book that stinks. If it were possible for a book to give a physical stink off its pages, this one would — a thought that might please Dali, who before wooing his future wife for the first time rubbed himself all over with an ointment made of goat’s dung boiled up in fish glue. But against this has to be set the fact that Dali is a draughtsman of very exceptional gifts. He is also, to judge by the minuteness and the sureness of his drawings, a very hard worker. He is an exhibitionist and a careerist, but he is not a fraud. He has fifty times more talent than most of the people who would denounce his morals and jeer at his paintings. And these two sets of facts, taken together, raise a question which for lack of any basis of agreement seldom gets a real discussion.

The point is that you have here a direct, unmistakable assault on sanity and decency; and even — since some of Dali’s pictures would tend to poison the imagination like a pornographic postcard — on life itself. What Dali has done and what he has imagined is debatable, but in his outlook, his character, the bedrock decency of a human being does not exist. He is as anti-social as a flea. Clearly, such people are undesirable, and a society in which they can flourish has something wrong with it. . . . 

But if you talk to the kind of person who can see Dali’s merits, the response that you get is not as a rule very much better. If you say that Dali, though a brilliant draughtsman, is a dirty little scoundrel, you are looked upon as a savage. If you say that you don’t like rotting corpses, and that people who do like rotting corpses are mentally diseased, it is assumed that you lack the æsthetic sense. Since “Mannequin rotting in a taxicab” is a good composition. And between these two fallacies there is no middle position, but we seldom hear much about it. On the one side Kulturbolschewismus: on the other (though the phrase itself is out of fashion) “Art for Art’s sake.” Obscenity is a very difficult question to discuss honestly. People are too frightened either of seeming to be shocked or of seeming not to be shocked, to be able to define the relationship between art and morals.

It will be seen that what the defenders of Dali are claiming is a kind of benefit of clergy. The artist is to be exempt from the moral laws that are binding on ordinary people. Just pronounce the magic word “Art,” and everything is O.K.: kicking little girls in the head is O.K. . . . It is also O.K. that Dali should batten on France for years and then scuttle off like rat as soon as France is in danger. So long as you can paint well enough to pass the test, all shall be forgiven you.

One can see how false this is if one extends it to cover ordinary crime. In an age like our own, when the artist is an altogether exceptional person, he must be allowed a certain amount of irresponsibility, just as a pregnant woman is. Still, no one would say that a pregnant woman should be allowed to commit murder, nor would anyone make such a claim for the artist, however gifted. If Shakespeare returned to the earth to-morrow, and if it were found that his favourite recreation was raping little girls in railway carriages, we should not tell him to go ahead with it on the ground that he might write another King Lear. 

Iowahawk let’s us know about the newest way to profit from the government’s efforts to promote the arts:

Earn Big $$$ the NEA Way!

It’s true — U.S. government demand for art and art-like products has never been higher! Uncle Sam and the good folks at the National Endowment for the Arts are on the lookout for go-getting, obedient artists like you for a fast-paced career in state propaganda. With the quick and easy Federal Art Instruction Institute course, now you too can get a first class ticket on the federal art gravy train!

And this ad is “just the beginning” (tip to Instapundit).

In the Great Depression, the government paid to destroy crops in order to prop up farm prices — about as dumb a policy as can be imagined. 

Today the government pays to destroy cars in order to ... frankly, I don’t know why.

“Cash for Clunkers” appears to be a bizarre combination of the “broken windows fallacy,” the desire to change the climate of the planet, and staggering administrative incompetence. In other words, “Cash for Clunkers” hits the trifecta: bad economics, bad science, and bad government.

Witness the dying gasps of a Corvette. [After the poison is added in the first minute, the engine starts smoking at about 3:40, and gets much worse at about 4:00.]

UPDATE: More at Tim Blair.

The first two questioners and questions at President Obama’s Townhall today in New Hampshire:

Peter Schmidt (one of the most liberal members NH State House): After praising Obama for bipartisanship, Schmidt asks: “If the Republicans actively refuse to participate in a reasonable way with reasonable proposals, isn’t time to just say, we’re going to pass what the American people need and what they want, without the Republicans?”

Julia Hall, teenager from Massachusetts: “As I was walking in, I saw a lot of signs outside saying mean things about reform in health care. How do kids know what is true and why do people want a new system that can help . . . more of us?”

The crowd is obviously stacked in Obama’s favor, which is, of course, not surprising.

UPDATE: The channel I was watching covered only the first two questions and answers. I caught the last question on another channel: Obama did a rhetorically effective job of answering a polite but opposing question about forcing members of Congress to adopt any public option.

In his joint press conference in Mexico today, President Obama stated clearly that the U.S. has chosen the side of former President Zelaya in Honduras:

We have been very clear in our su–, belief that President Zelaya was removed from office illegally, that it was a coup, and that he should return. We have cooperated with all the international bodies in sending that message.

Unfortunately, Obama did not explain why he thought that the Honduran Supreme Court was acting illegally when it ordered Zelaya removed.

UPDATE: Last week the State Department softened its position on Honduras (tip to Instapundit):

In a welcome about-face, the State Department told the Senate Foreign Relations Committee’s Richard Lugar, R-Ind., in a letter Tuesday that the U.S. would no longer threaten sanctions on Honduras for ousting its president, Mel Zelaya, last June 28.

Nor will it insist on Zelaya’s return to power. As it turns out, the U.S. Senate can’t find any legal reason why the Honduran Supreme Court’s refusal to let Zelaya stay in office beyond the time allowed by Honduran law constitutes a “military coup.”

This marks a shift. The U.S. at first supported Zelaya, a man who had been elected democratically but didn’t govern that way. Now they’re reaching out to average Hondurans, the real democrats.

Sure, the U.S. continues to condemn Zelaya’s ouster and still seeks mediation of the dispute through Costa Rican President Oscar Arias. But no U.S. sanctions means Hondurans have won.

Today at NRO, Andrew McCarthy comments on the revelation that the CIA was plotting to kill Osama Bin Laden.

Yet the existence of a CIA program to capture or kill Bin Laden was public knowledge. Iraq-War critic Michael Scheuer, who ran the Bin Laden tracking desk at CIA, talked widely about it. Buzz Patterson in his book Dereliction of Duty tells one particularly disturbing story. In 1998 when Bin Laden had been located by the CIA and the US had a 2-hour window to kill him, Sandy Berger was waiting in the Situation Room in the White House for an OK to send a Tomahawk missile to try to kill Bin Laden. But President Clinton was too indecisive to act. 

Clinton defended his actions to get Bin Laden, saying in 2002 that during his administration, we trained people to kill Osama:

Now, if you look back — in the hindsight of history, everybody’s got 20/20 vision — the real issue is should we have attacked the al-Qaeda network in 1999 or in 2000 in Afghanistan.

Here’s the problem. Before September 11 we would have had no support for it — no allied support and no basing rights. So we actually trained to do this. I actually trained people to do this. We trained people.

But in order to do it, we would have had to take them in on attack helicopters 900 miles from the nearest boat — maybe illegally violating the airspace of people if they wouldn’t give us approval. And we would have had to do a refueling stop. 

That there was extensive planning within the CIA to capture or kill Osama was so well known that I blogged about it in 2005:

The latest set of lawyers’ restrictions to be alleged grew out of a plan to capture Bin Laden. So great was the lawyers’ concern for Bin Laden’s comfort that a special chair was built to hold him and they were concerned whether the tape used to hold him would hurt his beard. This latest nonsense was revealed by the man who for 10 years headed the CIA’s desk tracking Bin Laden, Michael Scheuer, interviewed by Nora O’Donnell on Hardball. . . . 

But we had at least eight to 10 chances to capture or kill Osama bin Laden in 1998 and 1999. And the government on all occasions decided that the information was not good enough to act. . . .

The U.S. intelligence community is palsied by lawyers.

When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden