Author Archive: Kenneth Anderson

“HE WHO WALKS BEHIND THE LINKS”: That will be Glenn’s new name.  It’s Aztec!  I’m officially handing the Insta car keys back, you will be relieved to know.  Hope I didn’t bang the vehicle up too much.  Thanks for having me, and I’m headed back to the Volokh Conspiracy and Opinio Juris.

“THE UNBEARABLE HEAVINESS OF GOVERNING”:  Hoover Institution scholar Morton Keller delivers a progress report on the Obama administration in Defining Ideas.  “It’s safe to say that Obama’s is the most Congress-centric administration in modern history.”


THE DEFINITIVE GUANTANAMO DETENTION LITIGATION DATABASE: Brookings Institution releases a new report that tracks Guantanamo litigation, which will be updated on the web into the future. As you might guess, keeping track of all the lower court cases, appeals, dispositions, etc., is a major undertaking, and this is the place to go for any kind of serious research in this area. The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking.

ANNE-MARIE SLAUGHTER ON WHY what the international community did with Libya can’t be done with Syria: Video interview with Isobel Coleman of the Council on Foreign Relations.  Hmm … is entirely “ad hoc” the term I’m looking for here?

DAVID HUME’S 300th BIRTHDAY. (We are a couple of days late here at Insta, it was May 7.)

WOULD YOU REALLY HAVE WANTED OBL ON TRIAL?: Mark Osiel, University of Iowa international law professor, sends an email running through just a few of the many issues that an actual trial of OBL would have had to address, off the top of his head.  It’s a long list and just a start. If you think there was no problem, as a matter of law or morality, in attacking with lethal force, then it is pretty hard to see how the benefits of a trial outweigh the costs. At least if you are a government with ‘skin in the game’ and have to worry, for example, about waves of hostage-taking around the world, in the run up to a trial or imprisonment or execution.  Life is much easier if you are an NGO and can focus solely on the presumed benefits of your policies rather than the costs which, in any case, the NGO doesn’t bear.  The rest of us don’t have that luxury.  Professor Osiel:

We should think practically for a second what the legal problems would have been in trying to prosecute Osama Bin Laden, rather than kill him. Anyone in international criminal law could immediately reel off at least half a dozen such major obstacles. The educated American (and world) public should be aware of these. They begin with the abduction of OBL from Pakistani territory, raising jurisdictional issues confronted in Alvarez-Machain, where the Supreme Court’s decision to allow U.S. prosecution (despite capture without consent of Mexican authorities) was uniformly rejected by the rest of the world. There would also be the considerable evidentiary difficulties, given the high burden of proof, of linking bin Laden to the 9/11 conspirators, i.e., without disclosing confidential intelligence sources and methods. And then there would be all the uncertainties within the law of crimes against humanity, such as whether those attacks could be considered “widespread” or “systematic,” especially if viewed in isolation from Al Qaeda’s earlier, more limited attacks.  In any event, there’s no U.S. statute on crimes against. humanity, hence requiring recourse to ordinary federal criminal law, an approach too ‘parochial’ to convince non-U.S. publics of its legitimacy; direct recourse to customary international law on crimes against humanity would be highly vulnerable to a due process challenge.  And so forth.  All that said, the bigger obstacle is clearly prudential, not legal: risk of U.S. and Western hostages taken by jihadists demanding the defendant’s release.  Potential hostages have human rights too.

EATING THE NEXT GENERATION’S SEED CORN, DEPT. OF: Stanford University Professor John Cogan’s WSJ piece on redistribution from young to old, summarized by Veronique de Rugy.

PARTY ASYMMETRY IN NATIONAL SECURITY AND FOREIGN POLICY, a one graf public choice analysis:  “In a dangerous world, there is a clear set of policies that is required to protect the country, but only one party is honest about it.” Jim Geraghty says this by way of saying that Ross Douthat and Jonah Goldberg are too charitable toward the Democrats’ national security policy.  He’s right – but also way too charitable himself.  Why?

Assume that Democrats know that Republicans will generally support them when Democrats are in the White House and taking tough national security positions.  But the Democrats also send unmistakeable signals to the electorate that, if they are pushed out of power, they will undermine a Republican administration trying to do exactly the same, and taking exactly the same actions.  Their support is not reciprocal even when the action is the same.  Message to voters:

“Paradoxically, the more you value national security, the more you actually need to vote for Democrats, because we’re the ones who matter on the margin, not the Republicans.  We have the hold-up, not the Republicans.  The Republicans in principle might be tougher than us – but unless we are in office, we will hold up all or most or much of it, so their extra toughness doesn’t matter, because it will be less than ours. The Republicans would be tougher than us – but we’re actually the best you’re going to do, because if the Republicans take office, we’ll make sure they do less.  So thanks for your national-security vote – TeamObama, investing today in tomorrow’s Nash Equilibrium.”

EU TO REIMPOSE INTERNAL BORDER PASSPORT CONTROLS:  Wow. This is big. “European nations moved to reverse decades of unfettered travel across the continent when a majority of EU governments agreed the need to reinstate national passport controls amid fears of a flood of immigrants fleeing the upheaval in north Africa.” I suppose that it could face push-back in the European parliament. However, the Guardian notes that “15 of the 22 EU states which had signed up to Schengen supported the move, with only four resisting, according to officials and diplomats present.”  The rest of the Guardian article frames this as in keeping with the rise of wicked xenophobic right-wing parties in Europe.  But the simpler explanation might be that much of this is not from far right xenophobes, but from perfectly normal centrist European voters who inchoately understand (and Guardian writers are not wont to do), as Friedman said, you can have open borders or you can have a welfare state, but you can’t have both.

FUTURE CHALLENGES IN NATIONAL SECURITY AND LAW: Essays from members of the Hoover Institution Task Force, edited and introduced by Peter Berkowitz.  Includes short policy essays on a wide array of national security topics from Ben Wittes, Jack Goldsmith, Jessica Stern, Philip Bobbitt, Tod Lindberg, Matthew Waxman, and Kenneth Anderson.

MARY McCONNELL ON DEATH TO HIGH SCHOOL ENGLISH CLASS:  My earlier post on this generated quite a lot of email – more than anything I’ve posted this week, in fact – and so I asked one high school teacher who herself blogs on high school writing issues to give me a short statement, which I’ve put up below the fold at the original post.  (I met Mary McConnell seated between her and her husband at a Stanford Law School dinner, and I rather rudely paid Professor McConnell no attention at all, riveted as I was by what his wife was telling me about teaching composition and rhetoric, because it was so much my experience as a parent of a high-schooler.)

THE GREAT BOOKS ACCORDING TO ME:  Guatemala: Eterna Primavera, Eterna Tirania, by Jean-Marie Simon.  My Beloved Wife, as it happens, who spent nearly ten years as a war photographer and journalist in the 1980s Guatemalan civil war.  WW Norton brought out her photo book on the war in Guatemala in 1988, and this is the first version in Spanish, published last year in Guatemala, with new printings of the photos and a newly revised text.  You don’t need to read Spanish to get the photos; they document a brutal civil war, both in the urban areas and out in the countryside, with the army and with the guerrillas.  But strikingly, with the passage of time, these photos have also become a rare collection of photographs of ordinary life in Guatemala during the 1980s, quite apart from the war; urban and rural settings that no longer exist or have been greatly altered.

MOST POLITICALLY INCORRECT NOVEL?: I don’t think I’ll put this under “Great Books According to Me,” although I do think it is pretty great.  Brownout on Breadfruit Boulevard, by Timothy Mo. This follows on my post on AA Gill and Mark Steyn which, I see, got a citation on Steyn’s website as “reader of the day.”  I should think so.

As for Timothy Mo … It’s not that the novel opens with a scene of coprophilia that makes it politically incorrect (any “transgressive” artist, or South Park, can do that).  Nor even that the coprophilia involves a professor from Germany (though apparently Mo’s refusal to alter that opening lost him his publisher, hence his self-publication under “Paddleless Press”).

‘Politically incorrect’ is more than just saying things to one’s followers that others find offensive, and it is more than simply offending people.  It is a knowing assertion that is calculated to find its target; it is just an updated form of epate-ing la bourgeoisie in a society in which the bourgeoisie that matters happens to be of a vaguely leftish, progressivist variety. In that regard, Mo’s book is numero uno.  I paraphrase from memory the (London) Spectator’s quite astute review when it came out:  ‘A novel that appears to have been written expressly to annoy John Pilger … an example in that very rare genre, the work of genuinely successful reactionary art.’ So.  You had me at “expressly to annoy John Pilger.”

THIS IS LIKE – LIKE – LIKE THE HAIKU OF ANGST.  And despair.  3eanuts. (h/t the corner.)


  • [relentlessly flog]
  • [gently make readers aware of]

one’s own scholarship, which

  • [will explain everything in greater depth]
  • [entice reputational rents from readers via SSRN downloads under misleading descriptions]
  • [commodify and cheapen one’s scholarly output, rather than turning it into Veblenesque prestige goods]?

You decide!  Well, you could if we allowed comments which, for the record, I’m very glad Glenn doesn’t. (And do check out the link to see the cute little graphic that I decided not to include here.)

SAN FRANCISCO MIME TROUPE: Does not do pantomime, as it website notes in graf one.  It recently made a splash when Republicans singled its NEA grant out as something that could be cut from the Federal budget, along with an accordion festival; the head of the NEA gallantly defended it. I couldn’t tell whether, for strategic reasons or simply lack of knowledge, either the Congressional Republicans or the head of the NEA were aware that the SFMT is, and always has been, a proudly left-wing, radical agit-prop company – not for nothing the red star in its logo.

I don’t know whether it is still the hard-left, Leninist troupe I remember from the early 1970s, or whether it has morphed into public-teat-sucking-multiculturalist-diversity-twaddle-grant-getting-purveyor of left-wing political kitsch, but it wasn’t clear that anyone at the hearing knew, either.  I do recall seeing, as a high schooler in the 1970s, a quite outstanding, really excellent, production of Brecht’s Mother Courage by the SFMT – and a rousing audience-participation rendition of the Internationale in the intermission.

In which I enthusiastically joined, being a sixteen year old leftist in those days. When I moved right, it was not because I knew, or know, very much about conservative thought (I’ve never read Russell Kirk, or many other of the classic American conservatives, for example, and I am indifferent to Ayn Rand, seeing her less as a libertarian than a Romantic). It’s because one day I woke up and asked the truly vital question of political identity … “What Would Gramsci Do?”

BEHAVIORAL ECONOMICS: “The Consumer Financial Protection Bureau on Wednesday tapped Sendhil Mullainathan, a leading behavioral economist, to help aid its work in crafting consumer-protection rules.”

DEATH TO HIGH SCHOOL ENGLISH CLASS: I broadly agree with the article, but have a very specific concern, as a parent with a child going through the exit from high school.  My perception is that our finest high school English programs are still essentially about literature.  Which is okay, so long as it’s not too wacky.  But what students need, so far as I can tell, is not training in either the reading of literature for substance (most of it fiction and poetry, not non-fiction of the kind that most of the rest of life consists of). Or training in the tropes of literary analysis (metaphors, similes, the logic of analogies, which, I grant, is important; innovation in anything is often metaphor, the metaphorical leap later shown to be true of the world).

What most students – oh, let’s not cavil, my kid and her friends – need is training in logic.  Not necessarily symbolic logic, though that’s good, but informal logic in written language.  The problem with even very well taught English classes is that they teach as though there were nothing but Aristotle’s Poetics … and no Logic.  (One very useful, and spreading textbook, is Everything’s an Argument.) Put another way, the author of the Salon article acknowledges that she will not possess the technical skills of science, math, or engineering. (Although we trust that she will make the effort to understand the output of these fields sufficiently to connect them to society and the world, even without possessing them as technical skill sets.  We trust also that she will take at least a class in basic calculus and basic statistics and basic accounting, sufficient to make it through a not-so-great MBA program, and that she will make an effort to keep those basic skills alive through numeracy in everyday life.)

Past those things, however, pretty much the only skill that’s left is the ability to engage in clear and persuasive logical reasoning, including the sometimes inelegant and even brutal, but essential, apparatus of logic, deductive and inductive, in written communication.  It is not so great if you don’t possess that one, either.

Update: I have received quite a lot of interesting emails about this, both endorsements and some pushback.  I’ve asked one high school teacher I personally know, Mary McConnell (bio below), to expand her views into a short post that I’ve put below the fold.  This is an important debate for parents, students, and teachers, and my thanks to her for letting me post this:


CURTIS BRADLEY EXPLAINS case in which the Supreme Court agrees to decide whether the Executive has the Constitutional power to decide what goes on a child’s US passport under place of birth: Jerusalem or Israel.  As with many Constitutional cases, the legal issue is not the political argument on the surface – in this case over Israel and Jerusalem – but the separation of powers question, here pertaining to the recognition of foreign governments.

DERIVATIVES MARKETS’ PAYMENT PRIORITIES IN BANKRUPTCY: Harvard Law School’s Mark Roe summarizes his new article in this blog post.  “Stanford Law Review recently published my article, The Derivatives Market’s Payment Priorities as Financial Crisis Accelerator, in which I analyze the Bankruptcy Code’s role in undermining the stability of systemically-vital financial institutions.” The key observation, I think, having finished the article last night, is the role provisions of the bankruptcy code play in making certain derivatives accelerants in spreading systemic risk, by promoting the derivatives-holders to the front of the pack in bankruptcy.  The Dodd-Franck bill is, well, a work in progress; Michael Lewis’s The Big Short is a pretty good place to begin on derivatives and the financial crisis.

RANDY BARNETT ON THE MANDATE HEARING YESTERDAY: Volokh also has more back and forth with Orin Kerr, Jonathan Adler, and others; Barnett was at the Fourth Circuit hearing and comments on the oral argument.