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<title>The Volokh Conspiracy</title>
<link>http://volokh.com/</link>
<description>The Volokh Conspiracy, an academic blog.</description>
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<dc:date>2009-07-03T23:07+00:00</dc:date>
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<item rdf:about="http://volokh.com/posts/1246658622.shtml">
<title>Was the Declaration of  Independence an Example of Secession,  Revolution, or Both?</title>
<link>http://volokh.com/posts/1246658622.shtml</link>
<description>Patri Friedman of seasteading fame, has an interesting post reopening an old debate: whether the Declaration of Independence launched a revolution or a secession movement. This was a hotly...</description>
<dc:creator>Ilya Somin</dc:creator>
<dc:date>2009-07-03T22:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">Patri Friedman of <a href="http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239074395">seasteading</a> fame, has <a href="http://athousandnations.com/2009/07/01/secession-week-wednesday-secession-vs-revolution/">an interesting post</a> reopening an old debate: whether the Declaration of Independence launched a revolution or a secession movement. This was a hotly contested issue in the 19th century, when southern secessionists claimed they were following in the footsteps of the Founding Fathers who seceded from the British Empire, while many northerners responded by drawing a sharp distinction between secession and revolution.</p>

<p>The truth is that the Declaration of Independence was both a revolution <i>and</i> a secession. There is little question that American Patriots sought to secede from the British Empire in the sense that they wanted to break off their part of it and form a separate nation. Certainly, they weren't trying to replace the existing British government with a new one, while keeping the empire intact. On the other hand, the American independence movement was also revolutionary in the sense that it sought to institute a radically new political system. The revolutionaries certainly were not trying to gain independence simply for the purpose of establishing a smaller country with a political system that largely copied Britain's. For example, the rebels sought to create a polity with far stronger protections for individual freedom, no hereditary aristocracy, and a much more democratic political system than existed in 18th century Britain (or any other European state). Historian Gordon Wood discusses these and other radical changes sought by the revolutionaries in his excellent book <a href="http://www.amazon.com/Radicalism-American-Revolution-Gordon-Wood/dp/0679736883"><i>The Radicalism of the American Revolution</i>.</a> Of course, the new United States did not consistently pursue liberal principles across the board, as witness the continuation of slavery in the South. But it did pursue them to a far greater extent than the British government of the day.</p>

<p>In sum, therefore, the revolution-secession dichotomy fails to capture the true nature of the American independence movement, which was an attempt to use secessionist means for revolutionary ends.</p>]]></content:encoded>
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<item rdf:about="http://volokh.com/posts/1246657448.shtml">
<title>Obama to Meet with Russian Opposition Leaders:</title>
<link>http://volokh.com/posts/1246657448.shtml</link>
<description>Like Cathy Young, I worry that President Obama might be overly solicitous of the interests of Russia's authoritarian regime. In this respect, he could potentially repeat the mistakes of President...</description>
<dc:creator>Ilya Somin</dc:creator>
<dc:date>2009-07-03T21:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">Like <a href="http://reason.com/news/show/134457.html">Cathy Young</a>, I worry that President Obama might be overly solicitous of the interests of Russia's authoritarian regime. In this respect, he could potentially repeat the mistakes of President Bush, who - until relatively late in his presidency - tried very hard to develop a close relationship Russia's ex-KGB ruler Vladimir Putin (including ending US criticism of Russian atrocities in Chechnya, signing a nuclear arms limitation pact on terms favoring Russia, and <a href="http://news.bbc.co.uk/2/hi/europe/1392791.stm">waxing eloquent about how he had looked into Putin's eyes and saw an "trustworthy" partner with a wonderful "soul"</a>), while getting few concessions from the Russians in return. </p>

<p>President Obama's <a href="http://www.theotherrussia.org/2009/07/03/obama-will-meet-with-russian-opposition/">decision to meet with Russian opposition leaders during his trip to Moscow </a>is, however, a small hopeful sign:</p>

<blockquote>
<p>President Barack Obama has invited several prominent members of the Russian opposition, including United Civil Front leader Garry Kasparov, for a meeting in Moscow.  Boris Nemtsov, a chair of the Solidarity opposition movement, has also been invited to the meeting, set to take place on July 7th at the Ritz Carlton hotel.  The format of the event was still unclear.</p>

<p>“Of course, this will be interesting,” Kasparov said on the Ekho Moskvy radio station.  “The previous American administration didn’t dare to do this....”</p>

<p>Obama will travel to Moscow on July 6th for meetings with the Kremlin as well as business and civil society leaders.  A meeting with Russia’s leading human rights advocates has been scheduled at the Metropol hotel, the location of a consultation between representatives from NGOs in the US and Russia.</p>

<p>Earlier, Boris Nemtsov argued that it was essential for Obama to meet with opposition forces in Russia.  “If the White House agrees to Putin’s suggestion to speak only with pro-Putin organizations… this will mean that Putin has won, but not only that: Putin will become be assured that Obama is weak,” he said.</p>
</blockquote>

<p><a href="http://www.volokh.com/posts/1234474059.shtml">Falling oil prices and the financial crisis have reduced Putin's popularity and weakened his regime's grip on power</a>. Now more than ever, it is important for the US to avoid putting all of our eggs in the Putin basket and encourage pro-Western liberal opposition forces in Russia. </p>

<p>That doesn't mean we should never cooperate with Putin on issues of common interest.  For example, if Putin suddenly shows a willingness to  work with the US on Iran, North Korea, and other issues, Obama should pursue any such opportunities that might arise. Effective foreign policy sometimes requires cooperation with unsavory regimes. While the current Russian government is odious, it isn't nearly as bad as its communist predecessors, or as repressive as the governments of Saudi Arabia, Egypt, and several other US allies.</p>

<p>So far, however, the Putin regime has done virtually nothing to reciprocate either Bush's many overtures or Obama's more recent efforts to press the "reset button" on US-Russian relations. As opposition leader Boris Nemtsov suggested in the passage quoted above, perhaps Putin will be in a more cooperative mood if we avoid looking weak and demonstrate that we have other options. Even if he doesn't, we have little to lose by working to foster liberal forces in Russia. And if the current regime's popularity continues to decline, we have a lot to gain from working to promote liberal alternatives to <a href="http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235872823">the strongly anti-Western communists and ultra-nationalists who are the other main alternative to the status quo in Russia</a>. Obama's meeting with the Russian opposition leaders is a small, but symbolically valuable step in the right direction. </p>]]></content:encoded>
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<item rdf:about="http://volokh.com/posts/1246650505.shtml">
<title>Zero Money Down, Not Subprime Status, Leads Foreclosures</title>
<link>http://volokh.com/posts/1246650505.shtml</link>
<description>according to Stan Liebowitz, reporting in the WSJ today (Friday, July 3, 2009 not sure if publicly available) on a regression analysis he conducted of home mortgage foreclosures. I wonder...</description>
<dc:creator>Kenneth Anderson</dc:creator>
<dc:date>2009-07-03T19:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">according to <a href="http://online.wsj.com/article/SB124657539489189043.html">Stan Liebowitz, reporting in the WSJ today</a> (Friday, July 3, 2009 not sure if publicly available) on a regression analysis he conducted of home mortgage foreclosures.  I wonder what co-blogger Todd makes of this; I'm not expert enough in the numbers surrounding home mortgages to say.  However, as the article says, there certainly are policy implications, one way or the other.  Here's a little bit:</p>

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<blockquote>
<p>What is really behind the mushrooming rate of mortgage foreclosures since 2007? The evidence from a huge national database containing millions of individual loans strongly suggests that the single most important factor is whether the homeowner has negative equity in a house &mdash; that is, the balance of the mortgage is greater than the value of the house. This means that most government policies being discussed to remedy woes in the housing market are misdirected.</p>

<p>Many policy makers and ordinary people blame the rise of foreclosures squarely on subprime mortgage lenders who presumably misled borrowers into taking out complex loans at low initial interest rates. Those hapless individuals were then supposedly unable to make the higher monthly payments when their mortgage rates reset upwards.</p>

<p>But the focus on subprimes ignores the widely available industry facts (reported by the Mortgage Bankers Association) that 51% of all foreclosed homes had prime loans, not subprime, and that the foreclosure rate for prime loans grew by 488% compared to a growth rate of 200% for subprime foreclosures. (These percentages are based on the period since the steep ascent in foreclosures began &mdash; the third quarter of 2006 &mdash; during which more than 4.3 million homes went into foreclosure.)</p>

<p>Sharing the blame in the popular imagination are other loans where lenders were largely at fault &mdash; such as "liar loans," where lenders never attempted to validate a borrower's income or assets.</p>

<p>This common narrative also appears to be wrong, a conclusion that is based on my analysis of loan-level data from McDash Analytics, a component of Lender Processing Services Inc. It is the largest loan-level data source available, covering more than 30 million mortgages.</p>
</blockquote>

<p>There's a very interesting graphic that goes with the story, titled "No Skin in the Game" summarizing the data.</p>

<blockquote>
<p>The analysis indicates that, by far, the most important factor related to foreclosures is the extent to which the homeowner now has or ever had positive equity in a home. The accompanying figure shows how important negative equity or a low Loan-To-Value ratio is in explaining foreclosures (homes in foreclosure during December of 2008 generally entered foreclosure in the second half of 2008). A simple statistic can help make the point: although only 12% of homes had negative equity, they comprised 47% of all foreclosures.</p>

<p>Further, because it is difficult to account for second mortgages in this data, my measurement of negative equity and its impact on foreclosures is probably too low, making my estimates conservative.</p>

<p>What about upward resets in mortgage interest rates? I found that interest rate resets did not measurably increase foreclosures until the reset was greater than four percentage points. Only 8% of foreclosures had an interest rate increase of that much. Thus the overall impact of upward interest rate resets is much smaller than the impact from equity.</p>

<p>To be sure, many other variables &mdash; such as FICO scores (a measure of creditworthiness), income levels, unemployment rates and whether the house was purchased for speculation &mdash; are related to foreclosures. But liar loans and loans with initial teaser rates had virtually no impact on foreclosures, in spite of the dubious nature of these financial instruments.</p>

<p>Instead, the important factor is whether or not the homeowner currently has or ever had an important financial stake in the house. Yet merely because an individual has a home with negative equity does not imply that he or she cannot make mortgage payments so much as it implies that the borrower is more willing to walk away from the loan.</p>
</blockquote>

<p>Update, and thanks to Mark Field in the comments, here is <a href="http://www.ritholtz.com/blog/2009/07/zero-down-is-a-foreclosure-factor-duh/">Barry Ritholz responding</a>:</p>

<blockquote>
<p>As to prime versus sub-prime, it appears the Mortgage Bankers Association, data dispute the professor’s. Jay Brinkmann, chief economist for the MBA, noted in May 2009 that in 2008, prime, fixed-rate loans were only 19% of foreclosure starts nationwide, while Subprime adjustable-rate mortgages were 39%. More recently, the two levels have come together: prime loans are up to 29% of foreclosure starts while subprime adjustables came down to 27%.</p>

<p>But reporting only in percentages can be misleading. As Floyd Norris noted in August of 2008, “There are far more prime mortgages than subprime, of course, and subprime loans are much more likely to get into trouble. But this does show how the foreclosure problem is spreading.”</p>

<p>Agreed.</p>

<p>But the claim that during this crisis it has been Prime and not Subprime is simply unsubstantiated by the timeline or data. Subprime went bad first, then Alt-A, and then prime followed it later. Sub-prime and Alt-A went bad due to poor lending standards; Prime went bad in part due to job losses and as the economy got worse.</p>

<p>If anything, there is a stronger argument to make that the problem is worse from 30 year fixed versus ARMs. Here is the MBA data from September 2008:</p>

<p>For prime loans, foreclosure starts on fixed rate loans were 0.34 percent, an increase of five basis points, while prime ARM foreclosure starts were 1.82 percent, a 26 basis point increase. For subprime loans, fixed rate foreclosure starts increased 27 basis points to 2.07 percent and subprime ARM foreclosure starts increased 31 basis points to 6.63 percent</p>

<p>Sub-prime worse than Prime, ARMs much worse than fixed.</p>

<p>Of course, it is true that 100% LTV mortgages are a problem. But you need some context to understand how they came about. And while the professor does correctly identify underwater mortgages as a major factor — he seems to place the blame squarely on 100% LTV. Perhaps another question worth exploring is the boom/bust issue: How did those home prices run up so much, only to reverse back towards normal, historical pricing metrics? For that, you need to look at many factors.</p>

<p>A more comprehensive 40,000 foot view would note that 100% LTV is a symptom of the larger problem of a) abdication of lending standards, caused by b) enormous demand for securitized loans, enabled by c) rating junk as AAA, in order to satisfy the demand for higher-yielding, non-junk paper, all of which traces its roots to d) Greenspan’s ultra low interest rates.</p>

<p>Yes, bad lending standards, no money down, lack of income verification or debt servicing ability were key culprits. But to claim that it was more Prime than sub-prime is belied by the history of foreclosures. And, it ignores all the other moving parts to the equation.</p>
</blockquote>

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<item rdf:about="http://volokh.com/posts/1246649185.shtml">
<title>The limits of global legalism.</title>
<link>http://volokh.com/posts/1246649185.shtml</link>
<description>The African Union has decided not to cooperate with the International Criminal Court, which has indicted Sudan’s president, Omar al-Bashir, for crimes against humanity. The African Union has 53 members,...</description>
<dc:creator>Eric Posner</dc:creator>
<dc:date>2009-07-03T19:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">The African Union has <a href="http://www.google.com/hostednews/ap/article/ALeqM5jnA4VfmeyFYFtASOJuBjTnnLzTUQD99752A00">decided </a>not to cooperate with the International Criminal Court, which has indicted Sudan’s president, Omar al-Bashir, for crimes against humanity.  The African Union has 53 members, 30 of which are parties of the ICC.  These 30 states have therefore effectively announced that they will not comply with their treaty obligation to arrest al-Bashir and extradite him to The Hague.</p>

<p>It is increasingly clear that the ICC, like every utopian international institution that preceded it, will not accomplish its mission—to bring international justice to places like Sudan where a genocide is taking place.  It is rapidly being downgraded to a development institution, one that can provide legal and judicial capacity to states that request its help in battles with insurgencies, such as Uganda and the Central African Republic.</p>

<p>Yet at the same time, international criminal law is coming down like a juggernaut on <a href="http://www.jpost.com/servlet/Satellite?cid=1246443708709&pagename=JPost%2FJPArticle%2FShowFull">Israel</a>.  Israeli officials increasingly fear that they will be hauled off to court if they enter a European country.  European governments and judiciaries are taking note of claims that Israeli soldiers and leaders committed war crimes in Gaza and elsewhere.  (Yet Spain is junking its universal jurisdiction statute, partly because of Israeli pressure.)</p>

<p>Israelis should consider the Sudan example and think about their problem in simpler terms.  Their actions have offended people in Europe and so these European countries are issuing what might be called contingent sanctions against Israelis who have used too much violence, in European eyes, against Palestinians.  Sudan is in a similar position, but it has plenty of friends in Africa.  Israeli officials need to work on their diplomatic relationships with European countries, reduce their use of violence in conflicts against Palestinians, or accustom themselves to taking their vacations elsewhere.</p>]]></content:encoded>
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<item rdf:about="http://volokh.com/posts/1246642455.shtml">
<title>Second-guessing the Second Amendment</title>
<link>http://volokh.com/posts/1246642455.shtml</link>
<description>That's the title of this week's Independence Day cover story in the Boulder Weekly. Among the articles which you can read on-line are a pair of pro/con essays on Second...</description>
<dc:creator>David Kopel</dc:creator>
<dc:date>2009-07-03T17:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">That's the title of this week's Independence Day <a href="http://www.boulderweekly.com/20090702/coverstory.html">cover story</a> in the Boulder Weekly. Among the articles which you can read on-line are a pair of pro/con essays on Second Amendment rights, including my article, "The liberal argument for gun ownership."</p>]]></content:encoded>
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<item rdf:about="http://volokh.com/posts/1246631380.shtml">
<title>The Freedom of Speech and Symbolic Expression:</title>
<link>http://volokh.com/posts/1246631380.shtml</link>
<description>I have an op-ed on the subject in the Wall Street Journal this morning, based on my Georgetown Law Journal article....</description>
<dc:creator>Eugene Volokh</dc:creator>
<dc:date>2009-07-03T14:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">I have an op-ed on the subject in the <a href="http://online.wsj.com/article/SB124657642816289111.html"><i>Wall Street Journal</i> this morning</a>, based on my <a href="http://www.georgetownlawjournal.org/issues/pdf/97-4/Volokh.PDF"><i>Georgetown Law Journal</i> article</a>.</p>]]></content:encoded>
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<item rdf:about="http://volokh.com/posts/1246581442.shtml">
<title>Is International Criminal Law 'Crowding Out' the Rest of International Law?</title>
<link>http://volokh.com/posts/1246581442.shtml</link>
<description>That’s the question underlying my new essay, The Rise of International Criminal Law: Intended and Unintended Consequences, in the European Journal of International Law (Vol. 20, No. 2, June 2009)....</description>
<dc:creator>Kenneth Anderson</dc:creator>
<dc:date>2009-07-03T00:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">That’s the question underlying my new essay<a href="http://ejil.oxfordjournals.org/cgi/content/full/chp030?ijkey=rzXcS7F7Uu6b5To&keytype=ref">, The Rise of International Criminal Law: Intended and Unintended Consequences</a>, in the European Journal of International Law (Vol. 20, No. 2, June 2009).  And I’m curious as to whether anyone else shares my general feeling that the very success (on some metrics, anyway) of international criminal law is tending to swallow, as it were, the rest of public international law.  </p>

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<p>It's a very broad-ranging essay, and my thanks to EJIL editor and old friend Joe Weiler for running it, even though it is not exactly a conventional EJIL piece.  Here is the table of contents to the essay (which is, however, pretty short as law review essays go, at around 10,000 words).</p>

<blockquote>
<p>Regimes of mutual benefit and regimes of altruism
Alternative to intervention?
Earning the moral right to administer universal justice
Reprisal and reciprocity in the laws of armed conflict
The rise of the machines
Individual liability and the loss of the laws of war as rules for the social organization of war between groups
Does anyone ‘own’ the rules of war anymore?
An end-run around the P-5?
Neglecting the UN?</p>
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<p>Robot soldiers, ATS jurisprudence, the P-5, this piece has it all, in under 10,000 words ... It moves pretty quickly, for a law review article.</p>

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<item rdf:about="http://volokh.com/posts/1246570979.shtml">
<title>"Buried Deep Within Thomas Jefferson's Correspondence and Papers,</title>
<link>http://volokh.com/posts/1246570979.shtml</link>
<description>there lay a mysterious cipher -- a coded message that appears to have remained unsolved. Until now." That's the start of a very interesting article in Wall Street Journal. Thanks...</description>
<dc:creator>Eugene Volokh</dc:creator>
<dc:date>2009-07-02T21:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">there lay a mysterious cipher -- a coded message that appears to have remained unsolved. Until now."  That's the start of a very interesting article in <a href="http://online.wsj.com/article_email/SB124648494429082661-lMyQjAxMDI5NDA2MjQwODI0Wj.html"><i>Wall Street Journal</i></a>.  Thanks to my friend Prof. Haym Hirsh for the pointer.</p>]]></content:encoded>
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<item rdf:about="http://volokh.com/posts/1246569713.shtml">
<title>Why Obama Should Seek Legislative Support for Anti-Terror Policies:</title>
<link>http://volokh.com/posts/1246569713.shtml</link>
<description>On Monday, Benjamin Wittes and Jack Goldsmith had an op-ed in the Washington Post arguing that the Obama Administration should not replicate the Bush Administration's executive unilateralism in national security...</description>
<dc:creator>Jonathan Adler</dc:creator>
<dc:date>2009-07-02T21:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">On Monday, Benjamin Wittes and Jack Goldsmith had an <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/06/28/AR2009062802288.html?hpid=opinionsbox1">op-ed in the <i>Washington Post</i></a> arguing that the Obama Administration should not replicate the Bush Administration's executive unilateralism in national security policy.<blockquote>Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.</p>

<p>This seductive logic, however, failed disastrously for Bush &mdash; and it will not serve Obama any better. Bush's approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.</p>

<p>The result has been nearly eight years of unstable policy with no safe harbor for executive conduct and no settled rules for detainees. Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.</blockquote>I think this is correct.  Had the Bush Administration sought Congressional approval of their policies earlier, Congress would have given the Administration most everything it asked for, and the Supreme Court would have been less likely to repudiate their policies.</p>
<p>One area where the Administration appears likely to take the unilateral route is with regard to detention.  The <i>Post</i> and others <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/06/26/AR2009062603361.html?hpid=topnews">reported last weekend</a> that the Administration was considering a new Executive Order justifying indefinite detention.  If the Administration believes such detention is necessary, it should seek legislation from Congress.  Along these lines, Wittes and Colleen Peppard have <a href="http://www.brookings.edu/papers/2009/0626_detention_wittes.aspx">proposed model legislation on preventative detention</a>.  Their aim: not "to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language."  Whether or not this specific legislative proposal strikes the proper balance between liberty and security, the overall undertaking &mdash; seeking legislative approval of controversial counter-terror measures &mdash; is the proper course.</p>
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<item rdf:about="http://volokh.com/posts/1246569626.shtml">
<title>Defining Snark:</title>
<link>http://volokh.com/posts/1246569626.shtml</link>
<description>I have been reading David Denby's book, Snark. I have some problems with that book, but they are essentially the same ones that the reviewers have talked about, viz., that...</description>
<dc:creator>Kenneth Anderson</dc:creator>
<dc:date>2009-07-02T21:07+00:00</dc:date>
<content:encoded><![CDATA[<p class="firstinpost">I have been reading David Denby's book, <a href="http://www.amazon.com/Snark-David-Denby/dp/1416599452/ref=sr_1_1?ie=UTF8&s=books&qid=1246568240&sr=8-1">Snark</a>.  I have some problems with that book, but they are essentially the same ones that the reviewers have talked about, viz., that Denby's book is ultimately dissatisfying because it adopts a partisan view of snark.  </p>

<p>It seems odd to me that an obviously smart person like Denby - or his editor - would not have noted immediately that when taken in total, snark in his view seems to be correlated pretty much with the right, and not the left.  I suppose it might turn out that this is the fact of the matter, but it seems unlikely, and anyway is not demonstrated on Denby's evidence.  What is demonstrated on Denby's evidence is that he regards snark in an ad hoc way - if he likes it, it is clever, well-aimed satire, irony, and parody, and if he doesn't, it is snark.</p>

<p>The fundamental problem in defining snark - and in saying that it is bad for the blogosphere - is that no one, least of all me, <i>really</i> wants all high-minded argument on the web, all the time.  The problem is how to distinguish, on anything other than the least satisfying ad hoc, subjective, personal or - worse - political criteria satire, irony, parody from ... snark.  Whatever exactly it is.  We want <i>A Modest Proposal</i>; we don't want ... well, what?  One general principle is to be reasonably understanding that humor is both subjective and risky, so as readers one should be reasonably forgiving even of efforts one thinks have flopped.  Not everything is as pitch-perfect as the Onion, and even there lots of what I find funny, my mother would not have.</p>

<p>But beyond humor that misses, with some audiences or with all, what characterizes snark?  Two things, I think.  One is that it is an appeal to emotion - it is a statement with a particular affect, and the affect is an appeal to an attitude in which both writer and reader participate, but they participate in an exclusionary way.  This is what makes it a branch of irony.  Instead of arguing to everyone on the basis of shared reason so that, at least in principle, everyone could be included in the shared sentiment, snark depends upon exclusion.  It is a refusal to offer a public argument, with the possibility of reasoned inclusion, and instead depends upon prior shared views that merely exclude because snark does not make an attempt to persuade.  It is 'affectively exclusionary' in the language of moral psychology.</p>

<p>(Note that the greatest satire and irony appears to be exclusionary in this way - but ultimately is not.  <i>A Modest Proposal</i> is the bitterest satire, and yet it ultimately is inclusionary, because underlying it is an appeal to a universal sentiment in which all can participate.  It is not a reasoned argument, and is not an invitation to inclusion on that basis.  It is, rather than argument, an invitation to see the universal moral impulse beneath the satire, and to demonstrate it by a reductio ad absurdum - an invitation to <i>apperceive</i> the universal value.  It is a little like the Christian concept of conversion through the bearing of testimony.  Despite the surface irony, in other words, truly great satire is actually an invitation to see and join the community of believers, not exclusion from it.)</p>

<p>Two, because snark depends upon a prior shared commitment, it is a form of question-begging argument.  Not precisely a form of argument, because it is about affect, not reason.  So, more precisely, snark is the<i> affective cognate of a question-begging argument</i>, in which the sentiment of the conclusion assumes the sentiment of the premise.  It assumes that one <i>already</i> shares the attitudes necessary to ... share the attitudes.</p>]]></content:encoded>
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