The Volokh Conspiracy

Mercedes-Benz’s latest marketing ploy is to associate itself with Che Guevera. Over at the Huffington Post, Michael Gonzalez (Heritage Foundation) supplies the details.

It’s not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams’ “The Straight Dope”:

Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.

UPDATE: Regarding Eugene’s post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute “David Kopel” is today very different from the collection that constituted “David Kopel” 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That’s one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even though the Yale faculty is now entirely different. (Yes, to be precise, Yale Law School is just a unit within the larger corporation of Yale University.) None of the original personnel at National Review magazine are still there, but one can find many similarities between the corporate culture and mission of NR in 1955 and 2011. That the various corporations of the Ivy League schools discriminated against Jews in the 1920s is, in my view, of some relevance in understanding their current discrimination against Asians. That Mercedes-Benz was, compared to other German corporations, unusually supportive to Hitler then, and is similarly unusual (compared to other German corporations) in its attitude towards Che today, suggests that the corporation may lack an internal self-regulator which recognizes the wrongfulness of extolling totalitarian thugs.

I’m sure many people have been discouraged from seeing Atlas Shrugged Part I because of its terrible reviews.

I saw the movie with my wife yesterday at the Arlington Cinema & Drafthouse (where it is showing once a day through Thursday). I thought I was dragging her to a disaster I was only going to see because of my interest in libertarianism but, much to my surprise, she loved it. Note that my wife has never read Atlas Shrugged, is generally apolitical (with some vague libertarian tendencies), and doesn’t know Ayn Rand from Rand McNally. She’s also typically a pretty tough movie critic. Yet, she insisted that we see the movie again.

My take was somewhat less enthusiastic. I think the movie overall was okay, hampered largely by its decision to set the movie in the near future. I also thought the acting was much better than the reviews would have it–especially Taylor Schilling as Dagny Taggart.

AP writer Beth Harpaz worries that we are raising “a generation of nincompoops” because modern technology has obviated the need for kids to learn basic mechanical skills:

Are we raising a generation of nincompoops? And do we have only ourselves to blame? Or are some of these things simply the result of kids growing up with push-button technology in an era when mechanical devices are gradually being replaced by electronics?

Susan Maushart, a mother of three, says her teenage daughter “literally does not know how to use a can opener. Most cans come with pull-tops these days. I see her reaching for a can that requires a can opener, and her shoulders slump and she goes for something else.”

Teenagers are so accustomed to either throwing their clothes on the floor or hanging them on hooks that Maushart says her “kids actually struggle with the mechanics of a clothes hanger.”

Many kids never learn to do ordinary household tasks. They have no chores. Take-out and drive-through meals have replaced home cooking. And busy families who can afford it often outsource house-cleaning and lawn care….

The issue hit home for me when a visiting 12-year-old took an ice-cube tray out of my freezer, then stared at it helplessly. Raised in a world where refrigerators have push-button ice-makers, he’d never had to get cubes out of a tray — in the same way that kids growing up with pull-tab cans don’t understand can openers.

But his passivity was what bothered me most. Come on, kid! If your life depended on it, couldn’t you wrestle that ice-cube tray to the ground? It’s not that complicated!

Mark Bauerlein, author of the best-selling book “The Dumbest Generation,” which contends that cyberculture is turning young people into know-nothings, says “the absence of technology” confuses kids faced with simple mechanical tasks.

But Bauerlein says there’s a second factor: “a loss of independence and a loss of initiative.” He says that growing up with cell phones and Google means kids don’t have to figure things out or solve problems any more. They can look up what they need online or call mom or dad for step-by-step instructions.

I worry a lot about ignorance, including political ignorance, economic ignorance, and to a lesser extent ignorance about religion. But the kind of ignorance Harpaz emphasizes strikes me as a nonissue.

Most of it consists of ignorance of mechanical skills that have either been rendered obsolete by modern technology or are rapidly on the way there (as in the case of using old-fashioned ice-cube trays and cutting open tin cans). In every generation, there are some mechanical skills that were essential in earlier times that are no longer useful because technology has created machines that perform the same functions more efficiently. When I was in high school in the 1980s, I learned how to use a typewriter. Very few teenagers have that skill today because word processors are both simpler to operate and more efficient. In the generation before me, many if not most schoolchildren knew how to use abacuses and slide rules. By my day, we were using the much simpler and more efficient calculators. Does that mean that we were “nincompoops” compared to those who grew up in the 1950s and 60s?

Harpaz and Mark Bauerlein worry that kids who can look up instructions on the internet or their cell phones won’t learn how to “figure things out or solve problems.” To my mind, learning how to access the knowledge of others is itself a very important ability, one that those skilled at using the internet have an important advantage in. As great social theorists such as F.A. Hayek and Edmund Burke pointed out, even the smartest and most capable individuals can benefit a lot from the vastly greater store of knowledge compiled by the rest of society. If Bauerlein is right, than 19th century Americans should have been concerned about the spread of mass literacy and the declining price of books caused by improved printing technology. After all, kids who can look up instructions in books where their parents had to use their own know-how couldn’t possibly learn how to “figure things out” on their own!

Moreover, using technology or knowledge compiled by others to perform simple mechanical tasks frees up time and energy for more important types of learning. I’d rather that kids spend time learning history, economics, science, and foreign languages than spend time learning how to open cans and use ice-cube trays. I’d also rather that they spend more time surfing the internet (which improves research skills) or even talking to their friends on their cell-phones (which develops useful social skills) than practicing simple mechanical tasks. If that means they learn to tie their shoe laces at a slightly older age, I think Western civilization will still survive and even benefit from the tradeoff.

There is much to lament about the state of public ignorance and children’s education. But we should focus on ensuring that kids acquire the kind of knowledge that can’t easily be replaced by technology, not petty mechanical skills that will soon become obsolete, if they haven’t already.

Hooray for the Volokhs!  I hesitate to move from the sublime to the ridiculous, but heck … here’s my question.  Do the bad guys on TV or in the movies ever use Apple?  Macs?  Over the last month, watching movies on my new FIOS connection, I realized that I have yet to see the bad guys use Macs.  The good guys do all the time – 24, for example – but not the bad guys.  Are there counterexamples?  Is it possible that Apple only agrees to product placement to the good guys?

The NRA’s annual members meeting was held last weekend, in Charlotte, North Carolina. Since I’ve been going to these events for the last two decades, I’d like to offer a report on how the Convention has changed over the years, and some thoughts about the NRA’s past and present. Continue reading ‘NRA Convention report’ »

And like me, did you “learn” the meaning from the Vulcan mind-meld?  (Continuing a discussion with Michelle from comments to an earlier post.)  I have to say, I did “learn” the word by hearing its repeated use on Star Trek.  To meld, so far as I’ve ever been concerned, means … whatever it is that Spock did with his mind.  Feel free, Oh Ye Prescriptivists, to correct me in the comments.

I saw this ad during the Super Bowl–sorry, I mean “The Big Game”–yesterday, and originally thought it was some sort of political issue ad. Although it is funny, in a creepy way, it is not clear to me what the ad agency and Audi are saying here about The Green Police (besides buy an Audi diesel).

There are more clips on YouTube of other Green Police spots, so this looks like the start of an ongoing campaign. I suspect the visceral reaction of many Americans will not be what Audi intended or desired, but maybe these folks are not the Audi market. Is Audi the new Volvo? How is Volvo doing these days anyway?

[youtube]http://www.youtube.com/watch?v=yo7HiQRM7BA[/youtube]I’m at an academic conference at Stanford Law School this weekend and have had my attention drawn to the latest internet sensation: The “Demon Sheep” Video.  The video was produced for Carly Fiorina’s Republican  Senate campaign.  It is a 3 and 1/2 minute “attack ad” against Tom Campbell, a respected former Stanford law professor and congressman. 

    To dramatize its claim that Campbell is a big-spending wolf in fiscal-conservative sheep’s clothing, the video contains, well, a demon sheep — a sheep with glowing red devilish eyes. 

  The ad apparently has more than 375,000 views is something of an eye-opener, leading Mary Ham to write at the Weekly Standard:  “Someday, when your children are grown and the election of 2010 has long past, people will ask where you were when the demon sheep first came to American politics.”  (Read the whole thing here.)

  The ad is being widely lampooned across the internet (example here).  To mock the ad, another opponent of Fiorina in the Republic primary (Chck DeVore) has website that is the “home” of SFTEODSFOPD, or Society for the Eradication of Demon Sheep from our Political Discourse.

  The ad seems a bit over the top to me.   While the ad’s defenders say it is attracting lots of attention to the Fiorina campaign, the kind of buzz it is attracting will test the old saw that there’s no such thing as bad publicity.  I close with [insert your favorite sheep pun here ...]

Update:  A reader suggests I should have closed with any of the following:

1. The ad’s creator should take it on the lamb.
2. Ewe can fool all the voters some of the time, and some of the voters all of the time, but ewe. . . .
3. Fame is fleecing.
4. Baaaa humbug.
5. Where there’s a wool there’s a way.
6. I must be a mutton for punishment.
7. Cogito ergo ram. (I think; therefore, I ram.)

Peggy Noonan notes in her weekend column that President Obama’s SOTU address worked in a name for the new program – in the tradition of the “New Deal” or Kennedy’s “New Frontier.  For the Obama administration, it is the New Foundation.  She is skeptical:

They’ve chosen a phrase for the president’s program. They call it the “New Foundation.” They sneaked it in rather tentatively, probably not sure it would take off. It won’t. Such labels work when they clearly capture something that is already clear. “The New Deal” captured FDR’s historic shift to an increased governmental presence in individual American lives. It was a new deal. “The New Frontier”—we are a young and vibrant nation still, and adventures await us in space and elsewhere. It was a mood, not a program, but a mood well captured.

“The New Foundation” is solid and workmanlike, but it attempts to put form and order to a governing philosophy that is still too herky-jerky to be summed up.

I am equally skeptical, but my interest here is a different one.  We here at Volokh Conspiracy tend to be well aware of the Foundation novels – only too aware, possibly.  But I recall reading here or somewhere that Paul Krugman and several other leading economic and legal academic-policymakers had come to their professions wanting to be … Hari Seldon.  Deeply attracted to the idea of a mathematically-based psychohistory.  Certainly includes me.  I am the son of a physical scientist; I spent my early years playing with dangerous chemicals in my father’s lab.  But from the time I read the Foundation books, I was lost to physical sciences – I wanted the vision of a science of mass behavior.

This is not a liberal versus conservative thing although, it bears noting, nothing about Asimov’s Foundation vision suggested anything very liberal or libertarian.  It was all galactic social engineering.  At least so far as I could ever tell.  However, it does lead me to wonder whether any obscure, deeply buried, unconscious Jungian archtype of the Foundation entered somehow into this New Foundation framing.  This is an administration of academics, in love with design and social engineering, not so much the execution and carry-through part.  Yeah, yeah, the social engineering is supposed to be all nudgy and liberal paternalism, not coercive and bad.  It’s an administration of New Class elites especially in love with its peculiar combination of disinterested technocracy married to the most aggressive ideological remake of, well, the foundations of American society in a long time, and almost entirely from the top down.  But in that case, who is the Hari Seldon of this New Foundation?  (Alert commenter says, more important … “Who is the Mule?”)

Well, at least the SOTU catchphrase was not … Second Foundation!   Although, for all we know, it might have started out, before the rewrite as … Foundation and Empire.  I don’t have one of those clever poll apps, so let me  just ask our readers:

If you had to pick a catch phrase among the following that most accurately described the administration and its program, which of the following would it be?

• New Foundation,
• Foundation,
• Foundation and Empire,
• Second Foundation
• Or some other Foundation series related theme.  Please try to keep ideas for names within the Foundation universe, or anyway no broader than Asimov era “classic sci fi.”

Update:  An alert commenter observes that although the term New Foundation appeared in 2009 in the administration’s issue framing, sufficient to spark a NYT article on it, the term doesn’t seem to actually appear in SOTU, at least on my quick scan.  Let me know in the comments if I’m wrong  Presumably this is why Noonan phrases it slightly carefully, so as to not say that it did.  Anyway, my basic point is the same.

Update 2:  Thanks, Glenn, for the Instalanche!  It’s a pretty long list of folks in important positions, at least of a certain generation, who are Foundation fans – and some, including my daughter, of the next.  Glenn says …  ”I’ll note that both Newt Gingrich and Osama bin Laden are supposed to be Foundation fans, for whatever that’s worth . . . .”

That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.

Here’s the abstract for my Cardozo article:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.

From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

For discussion of Judge Benjamin Cardozo’s viewpoint on  self-defense, see pages 15-17 of the California and Nevada district attorneys’ amicus brief in McDonald.

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question “PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

The cover of next week’s Newsweek features a picture of Sarah Palin, along with the headline “How do you solve a problem like Sarah?” The cover is one more example of the periodical’s positioning itself as the ideas journal for people who think that the New York Times’ in-house editorials are middle-of-road, but have too many big words. And of the magazine’s cultural disconnect from much of the United States.

To wit: “How do you solve a problem like Maria?” is an early song in The Sound of Music, which won the 1965 Academy Award for Best Picture. In the song, several nuns at an abbey in the Austrian mountains summarize the problems with the novice Maria (Julie Andrews): Maria is too physically active, athletic and outdoorsy. She is too expressive emotionally, particularly about her happiness. She is flighty, and late for everything except meals. She has a good heart, but does not listen well to advice from her elders, and she is highly self-directed: “How do you catch a cloud and pin it down?” The harsh nun, Berthe, calls Maria “a headache” and “a demon.” Newsweek‘s subhead take’s Berthe’s role, calling Palin “bad news for the GOP–and everyone else too.”

The Mother Superior knows better: Maria is no bad-news demon. Rather, Maria is someone who lives the Good News, and whose talents, energy, and will-power are going to waste in the abbey. So she ships Maria off to a job outside the abbey–a job for which Maria is totally unprepared, and a job at which Maria’s predecessors have failed. After a rough start, Maria becomes a great success, due to her common sense, kind heart, wisdom, and readiness to defy convention. In the process, Maria also stands up to foreign totalitarian aggressors (winning the support of even her staunch critic Berthe), fortifies the nationalist sentiments of her country against those aggressors, and leads the people in her care to safety and freedom.

Ergo, the question “How do you solve a problem like Sarah?’ provides its own answer, at least to people who know the film from which the song comes: Make her the President of the United States.

I’m not arguing for or against Palin for President–just observing that, as is so often the case, the Palin-hating media are less clever than they think, and end up inadvertently making her stronger.

Some readers may remember my chronicling my on-the-set experiences portraying a prosecutor in the independent film, InAlienable. (For those who missed the original posts you can read them all in order at this link.) I am very pleased to announce that the film now has a distributor is being officially released on DVD. It is available for pre-order on Amazon.com.
As for my performance, although I have just 2 lines, I am on the screen a lot sitting next to Marina Sirtis who is a major character. Shooting the film, I discovered that even saying nothing involves acting choices, some of which I would have made differently had I ever seen myself on the screen. I did walk away from this experience with enormous respect for those who have mastered the craft of screen acting, which includes the entire InAlienable cast of experienced TV and movie sci-fi actors. Is this a perfect film? Hardly. It treads a very difficult line between drama and comedy. But it is a fun movie to watch, though not nearly as fun as appearing in.

UPDATE: For some reason the Amazon link to InAlienable was not displaying. I am trying again, as well adding a link to the word InAlienable in the text (and here).

The Fat Acceptance Movement may have a new hero. Tubby Republican nominee Chris Christie is now pushing back against imperially thin Democratic Governor Jon Corzine’s campaign theme making fun of Christie’s heft. Christie criticizes Corzine for his recent, implausible, assertions that Corzine never raised the weight issue: “If you’re going to do it, at least man up and say I’m fat…Afterwards he wusses out and says ‘no, no, no. I didn’t mean that I don’t know what you’re talking about.’ Man up. If you say I’m fat, I’m fat. Let’s go. Let’s talk about it.” Asked if a governor needs to set a good example, Christie retorts, “I am setting an example…We have to spur our economy. Dunkin Donuts, International House of Pancakes, those people need to work too.”

Smart move by Christie, since his sense of humor about himself softens his prosecutorial image (which independent candidate Chris Daggett has exploited in TV commercials) as an angry guy whose solution to everything is putting somebody in prison. For the still-undecided voters (a group which tends to be ill-informed about politics), Christie’s quips show him as a guy who knows who he is, and who does not take himself overly seriously, who admits his own weaknesses, and who has a sense of humor.

According to Tina Brown, they are – in an interview in today’s Financial Times about her website, The Daily Beast.  This is an elliptical addition to Eugene’s posts about e-books and new legal book technologies.

I’m sure many legal academics, myself included, have wondered how, along the way in the last couple of years, things seemed to shift so that no one seems to read one’s academic articles anymore.  Our legal academic audience, in my highly anecdotal take, seems to want to read either blog posts or books.  I’m not quite sure why this is, but I Sense This In The AcademicoSphere.

Here is Tina Brown on the topic of websites, magazines, and books.  It’s quite a good interview on the founding and progress of the Daily Beast.

Given her record, it is startling when [Tina Brown] announces that she sees no future for long-form magazine pieces “of the old kind”, outside the pages of The New Yorker, The Atlantic and Vanity Fair, and proclaims that “books are the new magazines”.

However, Daily Beast writers are to be encouraged to “exercise their narrative journalism muscles” through a tie-up with Perseus Books to produce books of no more than 50,000 words.

“People’s time spans are so short, they either want a short ‘nerve centre’ piece immediately, or they want a short book they can read on a plane,” she says. “A lot of stuff about the [financial] meltdown I would have liked to be marinated over three or four months, but I didn’t want to wait a year and a half.”

The model, which will be tested in January with a book by John Avlon called Attack of the Wingnuts , will be to launch e-books for Amazon’s Kindle or Sony’s Reader, and then to print paperbacks for titles that have sold well.