April 28, 2015

IN THE MAIL: From Paul G. Mahoney, Wasting a Crisis: Why Securities Regulation Fails.

Plus, today only at Amazon: 50-70% Off Women’s Spring Styles.

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TAXPROF ROUNDUP: The IRS Scandal, Day 719.


On the way to work at the Library of Congress during the year just past, I was stopped on more than one occasion by activists from the Lyndon LaRouche movement. Among the many interesting theories they regaled me with one sunny Spring morning, one stuck out: Queen Elizabeth II, through dastardly means, exerted a secret and nefarious influence on American foreign policy, manipulating it to serve British imperial interests. This, they said, explained America’s recent wars in the Middle East. Informing these activists that I was British and therefore delighted to hear this news, I added that to have such influence over the world’s most powerful state must be a testament to the hidden genius of British foreign policy. After all, I reminded them, it was only 200 years ago—August 24, 1814, to be precise—that British troops had burned this town down, marking the only time that a foreign power had captured and occupied the U.S. capital. I then continued merrily on my way.

The reality is, of course, more disheartening. The United Kingdom’s stock in Washington, DC, is diminishing. Foot-dragging and defense-cutting Britain is not the ally to America it once was. It is not even the ally it was earlier in this young century when it stood staunchly beside the United States after September 11, 2001, and in the two wars that followed. The United Kingdom is now handwringing about its role in the world in a way not witnessed for many decades. Caught in a peculiar posture of fealty to feckless UN resolutions and deferring dangerously to ponderous parliamentary prerogatives, Britain risks corroding its “special relationship” with the United States—something that, in various incarnations (and under different appellations), has been a pillar of British foreign policy for the past century. . . .

The British condition has not gone unnoticed in Washington, where even the most Anglophilic voices have expressed disquiet about recent developments. Yet even that disquiet, however well intentioned, usually rests on a rather shallow and hence unstable basis of understanding. It thus risks causing anxiety over the wrong things. The “special relationship” may or may not be in jeopardy, but one needs to take a step back from this debate to see the bigger picture. Of greater significance are shifts in the underlying worldviews that have bound Anglo-Saxon political cultures together for a very long time indeed. If you’re in a fretting mood, here is a subject truly worthy of your energy. Indeed, if you’re concerned about “world order”, you have to remember that this very notion is an inherently Anglo-American one.

Our current President is famously hostile to all things English, most things Anglo-American, and — not to put too fine a point on it — American. So he’s not troubled by this trend and in fact has worked to accelerate it.

BOTSPIRACY IN RESTRAINT OF TRADE: When Robots Collude: Computers are adopting a legally questionable means to crush the competition. More press on my colleague Maurice Stucke’s paper, coauthored with Ariel Ezrachi of Oxford, on robot collusion.

NOT ALL STATES CAN BE AS PROGRESSIVE AS TENNESSEE, YOU KNOW: Freddie Gray Arrest Exposes an Antiquated Knife Law Similar to New York’s.

Funny, because the Tennessee lefties saw the new knife law as a bit of redneck weapons-fetishism. Little did they know that it’s actually a progressive cause, endorsed by the Village Voice! Want to help young black men in the city? Support Knife Rights!

ANOTHER EXCUSE CRUMBLES: The Clinton Foundation Is Wrong: Canadian Law Doesn’t Prohibit Donor Disclosure. Love the update: “After this article was initially published, the Clinton Foundation sent The Federalist two links (here and here) allegedly supporting its contention that federal law in Canada prohibits public disclosure of the names of charitable organization donors. Unfortunately for the Clinton Foundation, neither link supports the organization’s rationale for deliberately withholding donor information from the public. In fact, one of the links actually includes information that directly contradicts the Clinton Foundation’s assertion.”

Related: In 2013, The Clinton Foundation Only Spent 10 Percent Of Its Budget On Charitable Grants.

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WHAT IS “MARRIAGE”?:  The Supreme Court will be asking this question today, as oral arguments in Obergefell v. Hodges begin at 10 a.m.  The arguments involve four consolidated cases from Kentucky, Ohio, Michigan and Tennessee and raise two distinct questions:  (1)  Is there a constitutional right for two people to marry?; and (2) Must states recognize a marriage recognized by a sister state, if the marriage is between two people of the same gender?

Notice that the question presented isn’t whether the Constitution recognizes a right to same-sex marriage, per se.  Instead, the question posed is whether there is a right to marriage between two people.  And if marriage is defined as a union between two people, it is a foregone conclusion that the Court will conclude that it should be permitted between two people of the same gender.  The counter-argument is that “marriage” isn’t just a union of “two people,” but inherently and necessarily a union of “one man and one woman.”

The Supreme Court has long stated that “marriage” is one of the “fundamental” and “basic” rights protected by the word “liberty” in the Due Process Clauses.  In the 1967 case of Loving v. Virginia (one of the great all-time case names, btw), the Court ruled that a state anti-miscegenation law violated the Equal Protection Clause because the law inherently involved a suspect racial classification (with no compelling justification for such classification).  It also violated the Due Process Clause:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

One need only substitute “sexual orientation” for “racial” to see how the Obergefell Court will conclude that due process “liberty” gives any two individuals the right to marry.  And to make matters even clearer, the Court’s decision in United States v. Windsor, Justice Kennedy (the “center” of the Court) struck down the federal Defense of Marriage Act (DOMA), stating:

This status [marriage]  is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. . . .

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.  In determining whether a law is motivated by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. . . . The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

The Windsor Court thus concluded that Congress’ “one man, one woman” definition of marriage for purposes of administering federal law was motivated by a “bare desire to harm” homosexuals and was thus discriminatory in purpose and effect.  While the Windsor Court gave lip service to States’ traditional power to define marriage, its conclusion was based upon its belief that the law was motivated by sexual orientation animus– a desire to keep “two people” from obtaining “dignity in the community equal with all other marriages.”

So once the Court accepts that “marriage” is a union of “two people,” the conclusion seems obvious.

While I do take issue with constitutionalizing the definition of marriage via edict of 9 unelected Justices rather than allowing the political process to continue to unfold– as it has very successfully done over the past decade or so–the marriage is “two people” definition, if accepted, will have some predictable consequences.

If marriage is “two people,” then presumably the next front of litigation will be adult, consensual incestuous relationships– probably first cousins, who are prohibited from marrying in 25 States.  Once this legal restriction falls, other adult, consensual incestuous relationship bans should presumably fall, too, such as parent/child (whether same- or opposite- sex), aunt/uncle- niece/nephew, etc.  Presumably, nonage laws limiting marriage of minors would continue to be upheld pursuant to States’ parens patriae power.

But why stop at “two people”?  Why not three, four, or fifty-six?  Would restricting marriage to “two people” be discriminatory animus directed at the polyamorous?  Or is it somehow “rational” for government to limit “marriage” to “two people”?  Once the word “marriage” is unmoored from the male-female sexual union, things start to get very complicated.  If Americans wish to limit “marriage” to “two people,” it may be advisable to begin thinking about a constitutional amendment defining it as such.

ASHE SCHOW: No such thing as evidence of innocence in campus sexual assault hearings.

If a student has been wrongly accused of sexual assault on their college campus, how are they supposed to prove their innocence?

I’ve asked a similar question to lawmakers and interested parties before — how is a student supposed to prove they obtained consent in a he said, she said situation? — but received no response.

One would think there might at least theoretically exist evidence that an encounter was consensual – outside of a videotape or recording, of course. Witnesses, for example, or subsequent messages between the two students.

And indeed, such evidence does exist in some situations, the problem is that college administrators either ignore such evidence or they twist said evidence to end up being used against the accused student who brought it up.

Take contact between the two parties after an alleged incident of sexual assault. Even if the accuser appears friendly toward the eventually accused, all they have to do is claim their messages didn’t accurately portray their feelings and suddenly, those messages are used against the accused.

This occurred in the Emma Sulkowicz vs. Paul Nungesser case. After what Sulkowicz claimed was a brutal rape in which she was pinned, beaten and choked before being raped, she sent Nungesser numerous messages asking to hang out, even telling him she loved him. Nungesser tried to get those messages introduced as evidence during his Columbia University hearing, but was denied. Nungesser, who has since become the victim of a public campaign of defamation by his accuser, was exonerated anyway.

After Sulkowicz began a mattress-carrying performance art project and publicly identified Nungesser as her attacker despite confidentiality rules, Nungesser released the post-alleged-rape Facebook messages.

Sulkowicz responded to the released messages by claiming she sent them because she wanted to have a “talk” with Nungesser about the encounter. Some people still buy it.

A similar situation played out at Vassar College when Peter Yu introduced Facebook messages showing his accuser apologizing to him for the evening. She apologized for leading him on and said that she had “a wonderful time” with him. But a year later, when Yu produced these messages for the disciplinary panel, his accuser claimed they “did not correctly reflect her feelings” because she was in a state of “shock and disbelief” about the encounter.

What we’ve learned so far: Women are too emotionally immature for college. They should be kept at home until a suitable man appears, ready to marry them and assume responsibility for overseeing their poor decision-making abilities.

ROLL CALL: Trade Fight Galvanizing the Left.

With the first round of appropriations bills and a possible budget conference report on the House floor this week, the chamber’s progressive contingent is looking farther down the road at the storm brewing over so-called Trade Promotion Authority, or “fast track.”

Legislation allowing President Barack Obama to negotiate the Trans-Pacific Partnership trade agreement would ordinarily be divisive within the House Democratic Caucus, but progressives say there’s even more at stake in this most recent fight: 2016.

If they can’t stop the TPA bill, the nearly 70 voting House members in the Congressional Progressive Caucus are determined to make such a ruckus that the party’s 2016 candidates — presidential front-runner Hillary Rodham Clinton in particular — realize Obama’s middle-of-the-road approach to trade, or any major policy area, is not acceptable.

“I think if we were to keep fast track from happening here, then the message is pretty clear to the national campaigns, Hillary’s in particular, that this is an issue that’s going to energize the base,” said CPC Co-Chairman Raúl M. Grijalva, D-Ariz.

“I think it kind of sets a tone nationally,” Grijalva said, “My point being, if the vast majority of the Democrats in the House are willing to confront their president, it only makes sense that any candidate for that position is on the line.”

Every candidate should be asked.

LORETTA LYNCH’S FIRST TEST:   She’s sending two DOJ officials to Baltimore to meet with community leaders.  That’s good.  But the real question is:  What will they do and say, once they arrive?  Will they mimic Erick Holder’s DOJ, and prioritize lectures about white privilege and racism?  Or will they provide a voice of calm and reason, and unequivocally condemn the random violence?

Lynch has a chance to break with the embarrassingly biased Holder past and start rebuilding trust in DOJ as a department interested in actual justice (for all).  Will she take it?

#WARONWOMEN: Clay Aiken: Rep. Ellmers is ‘an idiot.’ An idiot who beat you like a drum, Clay.

HIGHER EDUCATION BUBBLE UPDATE: Marco Rubio: You Deserve The Facts Before Taking Out Student Loans. “Students and their families need to be equipped with the information necessary to make well-informed decisions about which majors at which institutions are likely to yield the best return on investment. This is why Marco has authored and championed the ‘Student Right to Know Before You Go Act,’ which aims to give students reliable data on how much they can expect to make versus how much they can expect to owe.”

April 27, 2015

OUR LEADERS: As Baltimore Burns, O’Malley Speaks Out, Hillary Tweets About Bumper Stickers.

THEY CAN’T HANDLE THE TRUTH: Georgetown University demands College Republicans edit video showing angry feminist protesters.

The controversy over scholar Christina Hoff Sommers’ lecture at Georgetown University last week is not over.

Lauren Gagliardi, the school’s assistant director for the center for student engagement, emailed two members of the College Republicans to request they edit the video to remove students who did not agree to be videotaped.

In the email, provided to the Washington Examiner, Gagliardi tells the students that the “edited version needs to be released without students who did not give permission to be taped.” She also says that if the Clare Boothe Luce Policy Institute, which sponsored the event, is “unwilling or unresponsive to the request, Georgetown will need to step in.”

The video that has Gagliardi so upset features feminist activists holding up signs accusing Hoff Sommers of being an anti-feminist or deny rape.

Yeah, well, if they didn’t want to be on video doing that, then they shouldn’t have done that. Here’s the video.

Much more here. “I wonder if Georgetown ever heard of the Streisand Effect?”

JOURNALISM: CBS’s Bob Schieffer to Guest: You Shouldn’t Be On a News Program, You’re Controversial and Divisive! “After Walter Cronkite left CBS, he started speaking for up for increasingly nutty causes, such as “One World Government.” When Dan Rather left, Mr. Objectivity began hosting fundraisers for the far-left Nation magazine. Bob Schieffer is set to retire this summer; based on the track record of his former CBS colleagues, his columns and speeches after he’s free to go full Bullworth should be loads of fun to read.” It’s like they’re undercover lefty operatives, until they’re not undercover any more.

“BECAUSE THIS CAMPAIGN ISN’T GOING TO BE ABOUT ME”:   Oh, Hillary, bless your sweet little heart.  Clinton’s puff-piece op-ed in today’s Des Moines Register is a pitiful attempt to divert attention away from her abominable, treasonous behavior as Secretary of State.  It’s now all about Hillary and her ethics (or lack thereof).  The only real question is:  Who will take the mantle of the Democrat party when she is forced to drop out?  Somehow, I doubt it will be Martin O’Malley.  But then again, nominating a white male would be a smart move for a party that has shown absolutely zero interest in, and downright hostility toward, this segment of the population for the past 6+ years.

ROBERT WARGAS: How Long Does America Have? “Every week this country is consumed in a new distended orgy of polarized, mutual hatred, set against the backdrop of outrage mobs, race riots, shuttered businesses, scandals, Twitter-induced career ruination, gleeful smear parties, and partisan hackery. Admit it: You’ve asked yourself where America is going, and how long it can survive the trip. Admit it.”

It’s a Republic. If we can keep it. Keeping it requires effort. It may even require sacrifice of some sort.


In truth, all Hillary ever did was marry well. But you’re not allowed to say that, because if you kept pointing it out, it might hurt the Democrats. Fiorina, of course, enjoys no such protection from the press, so she gets hit pieces like this one from reliable lefty hack Brent Budowsky.

KURT SCHLICHTER: Conservatives, Unleash the Awesome Power of “No.”

No, liberals, we refuse to go along and be complicit in the suicide of our culture and our country. Your long-term strategy has been to browbeat us into acquiescence, to pester, prod, and persecute us into silence and submission. And why? Because your only power over us is what power we allow you to have.

Unlike your leftist heroes elsewhere, American leftists have no army of willing murderers to enforce your sick vision at the point of a gun – except in Wisconsin, and the spotlight’s on that now, you scurrying cockroaches.

Just remember that most of you can’t even guess correctly which end of a gun goes “bang.” So you have to depend upon us normal people going along, of not resisting, of just giving up.

Well, we aren’t giving up. We’re on to you. We’re fighting back. And here’s our battle cry:


An idea so crazy, it just might work!

HIGHER EDUCATION BUBBLE UPDATE, LEGAL EDUCATION EDITION: Burdened With Debt, Law School Graduates Struggle in Job Market. “Mr. Wang, who works in Manhattan as a tutor for the law school admissions exam, is living a life far different from the one he envisioned. And he is not alone. About 20 percent of law graduates from 2010 are working at jobs that do not require a law license, according to a new study, and only 40 percent are working in law firms, compared with 60 percent from the class a decade earlier. To pay the bills, the 2010 graduates have taken on a variety of jobs, some that do not require admission to the bar; others have struck out on their own with solo practices. Most of the graduates have substantial student debt.”

HIGHER EDUCATION BUBBLE UPDATE: Diversity Uber Alles At Chapel Hill. Universities like to focus on things like “sustainability” and “diversity” because they produce outputs for which they are unlikely to be held accountable.

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And this remains evergreen:

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PROFESSOR BAINBRIDGE, PACE DREHER, IS NOT BACKING DOWN: “I am a sinner who is far from perfect. But I refuse to be a closeted sinner. And if my colleagues don’t like that, all I can say is ‘Come and Have a Go If You Think You’re Hard Enough.’” If you say that, and mean it, they will leave you alone. Like all bullies, they’re cowards.

VIDEOS: Lightning In the Erupting Calbuco Volcano. Plus: “So far the Calbuco eruption does not look to be as big as Mount Pinatubo in 1991 or Mount St. Helens in 1980. Pinatubo lowered global temperatures by about 0.5C. The big eruptions matter because they can cause climate changes that cause crop failures. An eruption on the scale of the 1815 Tambora eruption would cause massive crop failures and famine in many countries.”

LIFE IN OBAMA’S AMERICA: Seven officers injured, one unresponsive in Baltimore riot: police.


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VIRTUAL, MY HINEY:  Elizabeth Warren’s Virtual Candidacy.  Mark my words:  Warren will run, and her platform will be indistinguishable from Obama III.  Progressives are salivating at the prospect.

EVEN? ESPECIALLY! You Should Google Everyone, Even Your Therapist.

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I SMELL A WISCONSIN RAT:  Reporter M.D. Kittle at WisconsinWatchdog.org asks a very interesting question:  What did the Milwaukee Journal Sentinel know, and when did it know it?  The question relates to the Journal-Sentinel reporters’ knowledge of a pre-dawn paramilitary-style raid of the home of Cindy Archer, a fomer aide to Wisconsin Governor Scott Walker and one of the architects of Wisconsin’s Act 10, which reformed that State’s public sector unions.

The raid of Archer’s home occurred in the early morning hours of Wednesday, September 14, 2011.  At the time of the raid, Archer saw an individual that she believed to be a reporter, standing in her lawn.  But the question became:  How would a reporter even know that Archer’s home was being raided?  Someone had to tip the Journal-Sentinel off.  But under Wisconsin law, disclosure of a search warrant’s issuance, prior to its execution, is a Class I felony and could also violate the judge’s secrecy order of the John Doe investigation itself.

The Journal Sentinel ran a story on the Archer raid on the same day that the raid occurred (Sept. 14, 2011), authored by reporter Jason Stein.  In that story, Stein suggests that the raid was associated with the ongoing John Doe investigation:

About a dozen law enforcement officers, including FBI agents, raided the home of a former top aide to Gov. Scott Walker on Wednesday as part of a growing John Doe investigation.

The home on Dunning St. on Madison’s east side is owned by Cynthia A. Archer, who was until recently deputy administration secretary to the Republican governor. Archer, 52, now holds a different state job but is on paid sick leave, records show.

“We’re doing a law enforcement action,” one of the FBI agents told a reporter.

He didn’t identify himself or provide further comment but confirmed that he and three others were with the FBI and that a Dane County sheriff’s deputy was present.

The raid on Archer’s home coincides with a John Doe investigation in Milwaukee County.

That probe was started last year after the Journal Sentinel reported that another Walker staffer who was being paid by Milwaukee County taxpayers to help citizens with county services was instead using her work time to post anonymous comments supporting candidate Walker on websites and blogs. As part of the investigation, authorities earlier seized the work computers of two former Walker staffers and executed a search warrant of one of their homes.

Stein also intimates that Milwaukee District Attorney John Chisholm, one of the John Doe prosecutors, was involved in the raid:

Milwaukee County District Attorney John Chisholm also declined to comment.

Dane County Sheriff Dave Mahoney said one of his deputies had been placed at Archer’s house during the search at the request of investigators from Chisholm’s office. Mahoney said his office wasn’t involved in the investigation.

Sources indicated that Chisholm’s office continues to take the lead in the case of Walker’s former county staffers, with federal authorities providing assistance with computers and other digital technology.

The rest of the Stein story describes prior John Doe raids initiated by Chisholm’s office.  Stein may have just guessed that the raid was John Doe-related, but the tone of his piece seems more confident than that.

Journal Sentinel reporter Patrick Marley–not Stein– has admitted that he was the reporter Cindy Archer saw in her lawn.  But Stein admits that he, not Marley, was tipped off about the Archer raid, and he merely asked Marley to observe and take notes because Marley lived closer to Archer’s home.

So the question remains:  Who tipped off Stein (a political reporter) about the Archer raid?  Stein denies that his source was a prosecutor or law enforcement officer, and it’s theoretically possible (though somewhat farfetched) that one of Archer’s groggy neighbors just happened to know Stein’s home or cell phone number and called him in the middle of the night to tip him off.

The John Doe investigation has been plagued by selective leaks all along, is an ongoing problem, and is almost invariably favorable to the prosecutors. All of this strongly indicates that the source of these leaks is an insider in the John Doe investigation.  While Stein appears to claim a reporters’ privilege to protect his source regarding the Archer raid, Wisconsin does not have a reporters’ shield statute, its courts have recognized only a qualified privilege pursuant to its state constitutional equivalent of the First Amendment.  So in theory, the identity of Stein’s source could be revealed under the right circumstances.

But regardless of Stein’s possible privilege, it seems evident that there is a serious and continuing leak in the Wisconsin John Doe investigation, and that it warrants an investigation of its own.

Indeed, if it hadn’t been for the courage of Eric O’Keefe of the Wisconsin Club for Growth–who has defied the ridiculous gag order imposed on John Doe targets–the only knowledge the public would have today about the investigation would come from these one-sided, pro-investigation leaks. But getting the truth about an issue of such public importance shouldn’t depend upon the courage of one person. The leak’s one-way nature and suspicious timing only amplify the impression that the entire investigation is, as O’Keefe’s lawsuit contends, a political witch hunt, designed to silence conservatives in the State.  Thankfully, O’Keefe is punching back twice as hard.

NOW IN CANADA, every time a new regulation is enacted, an old one of equivalent burden must be eliminated. Can we do that here?

Thankfully, regulatory transparency got a considerable boost Thursday when the Red Tape Reduction Act (C-21) received Royal Assent and became law. Minister Tony Clement, who has championed the bill, can be proud that Canada is now the first country in the world to require that for every new regulation introduced one of equivalent burden must be removed.

C-21, has been operating as policy for several years already, which means that the costs of new rules must be quantified and equal or greater costs removed. It essentially caps the cost of rules coming directly from regulations. Government rules can also come from legislation and policy so the one-for-one rule is not a cap on the cost of all government rules. Still, it is a very good start.

Why is this so important? Regulation, both necessary and unnecessary (red tape), are a huge hidden tax on all Canadians. The latest estimate from the Canadian Federation of Independent Business suggests that regulation costs $37 billion a year. To be clear, not all of these costs could or should be eliminated. But Canada’s small business owners suggest that about 30 per cent of these costs, $11 billion, could be eliminated with no negative impact on human health, safety or the environment. This number seems reasonable given that British Columbia has reduced its regulatory requirements over the past decade by over 40 per cent with no one arguing the cuts had any serious negative impacts.

(Via Against Crony Capitalism).

WHEN BOTS COLLUDE: Can Algorithms Create A Price-Fixing Cartel? A nice piece citing the paper by my colleague Maurice Stucke and Oxford’s Ariel Ezrachi that I linked the other day.

PLANETARY DEFENSE: A gentle nudge with a nuke: deflecting Earth-bound asteroids.

AFTERBURNER: The Class of 2015: Book Burners Afraid of Matches | Bill Whittle.

THE MESSAGE MAY NOT SINK IN UNTIL A FEW BUREAUCRATS ARE TARRED AND FEATHERED: “If there’s an overriding principle, it ought to be this: Let parents raise their kids as they see fit.”

TEACH WOMEN NOT TO RAPE! (CONT’D): My husband had a long affair with his aunt—starting when he was 16.

ROGER KIMBALL: Annals of corruption: What’s real, what’s parody?

MY USA TODAY COLUMN: Hillary’s Scandals: Who Wins, Who Loses?

IN THE MAIL: From David Ignatius, The Director: A Novel.

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TAXPROF ROUNDUP: The IRS Scandal, Day 716.

K-12 IMPLOSION UPDATE: Why Chinese Students Do Better.

The Chinese favour a “chalk and talk” approach, whereas countries such as the UK, US, Australia and New Zealand have been moving away from this direct form of teaching to a more collaborative form of learning where students take greater control.

Given China’s success in international tests such as PISA, TIMSS and PIRLS, it seems we have been misguided in abandoning the traditional, teacher-directed method of learning where the teacher spends more time standing at the front of the class, directing learning and controlling classroom activities. . . .

Beginning in the late 1960s and early ‘70s, teachers began to experiment with more innovative and experimental styles of teaching. These included basing learning on children’s interests, giving them more control over what happened in the classroom and getting rid of memorising times tables and doing mental arithmetic. This approach is known as inquiry or discovery learning.

Based on this recent study of classrooms in the UK and China and a recent UK report titled What makes great teaching?, there is increasing evidence that these new-age education techniques, where teachers facilitate instead of teach and praise students on the basis that all must be winners, in open classrooms where what children learn is based on their immediate interests, lead to under-performance.

Well, the chalk-and-talk approach is proven. The newer approaches seemed more exciting because they were new, and they also offered more opportunities to politicize the curriculum in appealing ways.

PRAY THIS WOMAN NEVER TEACHES YOUR CHILDREN:  Meg Stentz, a teacher in North Charleston, S.C., has written an “opinion” piece in Cincinnati.com (apparently she grew up in Cincinnati) lamenting racial violence.  Her lead paragraph is unremarkable, but her second paragraph is worth a close read:

Just over a week after Walter Scott was gunned down, the Rev. Jesse Jackson returned to his home state to speak about the national tragedy. He spoke to less than 100 people, including media. The event was put on by the small, young, grassroots group leading the local resistance, Black Lives Matter of Charleston.

Jackson offered the media a chance to ask questions after his talk. The first came from a flushed white man, who said that since Jackson was calling for police to wear cameras, he wanted to know how many officers Jackson had spoken to himself. This white micro-aggression, this nearly purposeful missing the point, has been largely how I’ve perceived Charleston to be taking this horrifying incident.

So apparently, in Ms. Stentz’s infinite wisdom, asking Jesse Jackson a logical question about whether he had spoken to police about wearing cameras is a “white micro-aggression.”  Not a “micro-aggression,” mind you– a white micro-aggression.  Is there really any other kind?

And of course this “aggressive” question came from a flushed white man.  Again, is there any other kind?  They’re just so, you know, pasty-faced– a bunch of Pillsbury Dough Boys, really.  I’m sure his “flushing” emanated from some unconscious physiological acknowledgment of his own whiteness and micro-aggressive behavior.

But wait, it gets worse:

After being raised in Ohio, I moved to now-well-known North Charleston to teach in a Title 1 middle school. My roommates are also transplants and teachers, meaning they’re at least as liberal as most of the North and still observant of how the South operates.

Of course, Ms. Stentz never bothers to explain “how the South operates,” but the educated (read: liberal) reader will understand what this means without elaboration (wink, wink, nod, nod).  You know, it’s how the South operates.  In case you don’t understand (because your white privilege or something is blocking your awareness), she thankfully makes her meaning clear in her closing paragraph:

In the Deep South, complacency is king, and the reaction here, even to sensationalized coverage, is minimal. My students are not angry, because anger only springs from a belief that things could be different. This racial violence is all they’ve known. I hope one day, that won’t be true, but from where I’m standing, the only people up in arms about this “news” are north of the Mason-Dixon line.

Well, thank you Ms. Stentz for condemning an entire region as racists.  I’m sure you know this is true, since you grew up in the pure, non-racist, above-the-Mason-Dixon State of Ohio and everything.

And I’m sure Southern racism persists because of the enormous influx of Northerners over the last several decades, as well the reverse migration of  of blacks into the South.  Oh, wait–those aren’t “real” Southerners (wink/nod)–they’re virtuous transplants from north, so they don’t really count as Southerners.  That term only applies to people who are direct descendants of Confederate soldiers–such as Bushrod Johnson, a Confederate General from Ohio– as any intelligent person knows.

And besides, there’s never any racial violence anywhere else, and it’s never initiated by minority groups.  #Ferguson #FreddieGray #NYCcopambush

This is the kind of intelligent discourse our universities are encouraging, awarding degrees to those who reflexively mirror their liberal/progressive professors’ views, all while flying the banner of #diversity and #tolerance.   And to make matters worse, she is a teacher.

EVERYTHING THAT IS WRONG WITH WASHINGTON: The White House Correspondents’ Dinner: “Everyone knows the White House Correspondents Association dinner is broken. What started off decades ago as a stately formal celebration of the best of presidential reporting has morphed into a four-day orgy of everything people outside the Beltway hate about life inside the Beltway—now it’s not just one night of clubby backslapping, carousing and drinking between the press and the powerful, it’s four full days of signature cocktails and inside jokes that just underscore how out of step the Washington elite is with the rest of the country. It’s not us (journalists) versus them (government officials); it’s us (Washington) versus them (the rest of America).”

It’s no surprise to anyone who has seen The Hunger Games.

Jay Rosen writes: “True! And yet they keep doing it. Why?” Contra Rosen’s predictable take, it’s not Bush’s fault. Thronesniffers gotta throne-sniff. And this is how these people get revenge for not receiving the adulation they think they deserved in High School.

Related: When Washington fiddled while Baltimore burned. “So, where were the cable networks on Saturday night as Baltimore was rocked by violence? Telling their viewers to go to Twitter if they wanted to read the news. . . . That editorial instinct, one shared by virtually every media outlet, reflects a toxic level of self-veneration and an ugly disdain for the public this institution supposedly serves.”

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MY USA TODAY COLUMN: Hillary’s Scandals: Who Wins, Who Loses?

THEY SHOULD BE: Are Democratic Insiders Starting To Panic About Hillary?

HE’S SMALL, PETTY, AND INSECURE, AND THUS CAN BROOK NO DISAGREEMENT: At correspondents dinner, Obama lets second-term anger out.

VIRGINIA POSTREL: Breaking Moore’s Law? Does Not Compute.


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Background here.

KIRSTEN GILLIBRAND (D-NY): America’s Most Gullible Senator, Or Its Most Dishonest?

CIVIL RIGHTS UPDATE: State restrictions on concealed carry by noncitizens are unconstitutional.

A federal district court in North Carolina held Friday that North Carolina may not discriminate against permanent resident noncitizens in issuing licenses to carry concealed guns. (Messmer v. Harrison.) The U.S. Supreme Court’s D.C. v. Heller decision said that general bans on concealed carry of guns are constitutional, because the have been around in many states starting with the early 1800s. But the Supreme Court held that state laws discriminating against noncitizens — even as to activities that aren’t themselves constitutional rights — usually violate the Equal Protection Clause. That seems to be the court’s rationale in this case.

I think the court’s result is quite right, and other courts have recently held the same, see Smith v. South Dakota (D.S.D. 2011); Say v. Adams (W.D. Ky. 2008); Jackson v. Eden (D.N.M. 2014). And there are older precedents supporting that, too: People v. Rappard (Cal. Ct. App. 1972) and State v. Chumphol (Nev. 1981). State v. Vlacil (Utah 1982), did uphold a ban on noncitizens’ possessing guns (not just carrying them concealed), but I think that was a mistake.

Note that none of this affects bans on gun possession by illegal aliens; such bans have been uniformly upheld. It also doesn’t affect bans on gun carrying or gun possession by noncitizens who are legally here but aren’t permanent residents — a category that includes not just tourists but also people who have lived here for many years, for instance on work visas that let them work in a particular job. Federal law generally bans gun possession by such non-permanent-residents; it doesn’t violate the Equal Protection Clause, because courts have said that the federal government may generally discriminate against noncitizens, but it might violate the Second Amendment, at least as applied to gun possession and not concealed carrying. I know of no cases that have dealt with the federal non-permanent-resident possession ban.

Plus: “A possibly surprising fact: The South Dakota and Kentucky cases were brought by the local ACLU chapters; though the ACLU generally views the Second Amendment as not securing an individual right to own guns (and thus disagrees with the Supreme Court), local chapters are apparently willing to challenge some discriminatory gun laws.”

HIGHER EDUCATION BUBBLE UPDATE: LSU To Draft Insolvency Plan As Jindal Cuts Loom. “Exigency, declared when schools face insolvency, would allow the state’s flagship institution to restructure and fire tenured faculty.”

THE HILL: Cruz warns of ‘liberal fascism’ targeting Christians.

Sen. Ted Cruz (R-Texas) on Saturday said Democrats had gone to extremes in their persecution of Christians.

“Today’s Democratic Party has decided there is no room for Christians in today’s Democratic Party,” he said at the Iowa Faith and Freedom Coalition summit in Waukee, Iowa.

“There is a liberal fascism that is going after Christian believers,” the 2016 GOP presidential candidate continued.

“It is heartbreaking,” Cruz argued. “But it is so extreme, it is waking people up.”

“Liberal fascism.” What a catchy term!

Plus: Rubio: ‘The wrong people’ run America.

“Our nation is on the verge of another American century,” Rubio said. “It begins by turning the page on leaders trapped in yesterday.” . . .

Rubio cited flaws in Obama’s economic and foreign policies as the cause of fears over dwindling U.S. influence. First and foremost, the Florida lawmaker argued, were outdated notions towards America’s jobs market.

“Adjusting to the 21st century means understanding that automation and technology have ultimately changed the nature of work,” he charged.

Rubio next criticized Obama’s actions on the world stage. The president’s chief misstep, he claimed, was his tentative pact with Iran on its nuclear energy program.

“We can’t be a strong country if we are ambivalent towards our allies and accommodating of our enemies,” he said.

“How can it be that our president shows more respect for the Ayatollah in Iran than our allies in Israel?” Rubio added of Obama’s interactions with Israeli Prime Minister Benjamin Netanyahu and Ayatollah Ali Khamenei, Iran’s supreme leader.

“There has always been evil, but never in so many places and in so many ways,” he concluded of the global atmosphere.

America has the worst political class in its history. The White House Correspondents’ Dinner’s sole positive function is to make that abundantly clear.

“POVERTY KILLS:” Rand Simberg on the tragedy of Nepal.


NEWS FOR THE LEFT: Witch-Hunts Are Not Reality-Based.

ANDREW KLAVAN: Actors Quit ‘Ferguson’ Because ‘Truth is Subjective!’

HIGHER EDUCATION BUBBLE UPDATE, LEGAL EDUCATION EDITION: What LSU Portends for the Future of Legal Education. “When we are trying to figure out what is going to happen with law schools we need to think through what is going to happen with universities. Regardless of what law schools do, if they become financial burdens on their host universities it can be expected that the universities will initiate actions. One is the bankruptcy variation such as reported in relation to LSU in the Boston Globe and the other is the closing of the law school in its entirety and termination of its faculty en masse. The latter approach may be as strategically cynical as closing a school for 3-5 years and then reopening as a new school after ridding the university of faculty during a period in which the demand for new law graduates may increase again.”

Yep. “Financial exigency” lets you override tenure for economic reasons. If economic conditions change, there’s nothing stopping schools from starting over, with new, cheaper hires. Accreditors might be a speed bump, but if more than a couple of schools do this, the accreditors will roll over. They have to have someone to accredit, after all.

April 26, 2015

MY USA TODAY COLUMN: Hillary’s Scandals: Who Wins, Who Loses?

YEAH, THAT’S PRETTY MUCH IT: Charity watchdog: Clinton Foundation a ‘slush fund.’ “Charity Navigator, which rates nonprofits, recently refused to rate the Clinton Foundation because its ‘atypical business model . . . doesn’t meet our criteria.’” It’s a money-laundry for bribes. I hope that President Walker will order Attorney General Schlichter to investigate it thoroughly.

KEVIN WILLIAMSON: George Washington University’s Swastika Problem: The Left discovers the value of fake hate crimes. I notice from Prof. John Banzhaf’s twitter feed that GWU is getting a lot of bad press in India, which they may come to regret since India is a source of many lucrative full-tuition foreign students. Which is why, contra Williamson, I don’t think that this kind of idiocy is the future. I think it’s approaching collapse.

ROGER KIMBALL: Is Ed Miliband Insane? “Let’s leave to one side the fact that Islamophobia is a fantasy tort: a “phobia,” as you dictionary will tell you, is an irrational fear or loathing of something in the noraml course of things is not fearsome or worthy of loathing. But how about Muslim extremism? . . . But here’s the question: if (heaven forfend) Ed Miliband actually moves into Number 10, will he arrest Tony Blair? For he has just gone on record saying that he wants to make “Islamophobia” a crime. Yes, that’s right. Not only does Ed Miliband want to expropriate wealth from the productive class, he wants to make an attitude a crime.”

ON TWITTER, A BUNCH OF LEFTIES ARE BLAMING BUSH FOR DESTABILIZING THE MIDDLE EAST, WHICH PROBABLY MEANS BATTLESPACE PREP FOR STILL MORE TERRIBLE NEWS. So remember, as late as 2010, the Obama Administration was bragging about how stable and successful Iraq was. And, of course, when Bush left office Syria, Yemen, Libya, Egypt were all stable. But they’ll blame Bush as long as they can get away with it, because it’s better than admitting that Obama has been an absolute disaster in foreign policy.

But, you know, the problem for them is that Obama has been an absolute disaster in foreign policy.

THE LONGER-TERM CONSEQUENCES OF MAKING “RACIST” THE EQUIVALENT OF “ENEMY OF THE REGIME” ARE LIKELY TO BE POOR: David French: Feds Play the Race Card to Crush Parents’ Revolt Against Common Core. If they keep this up, people may come to feel that racism isn’t so bad.

Of course, it wouldn’t be the Obama Administration if its reflexive accusations of racism weren’t also just a cover for its staggering ineptitude: “The federal government is flexing its muscles to protect an allegedly state-run program. Liberals are treating other liberals like they’re racist. Even the teachers’ unions are calling Common Core’s rollout ‘botched’ and walking back their ‘once-enthusiastic’ support for the program. It looks like the education technocracy is every bit as ineffective as the rest of our national technocracies.”

RUTH WEDGWOOD ON FACEBOOK: “John Kerry will run for president.”

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JOHN HINDERAKER: Our Mean-Spirited President Cuts Loose.


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TOO GOOD TO CHECK? Hillary Furious as Thousands of Americans Send Cigars to Her Office.

JOHN NOLTE: Gay Panic: Jenner, Rubio, Cruz Shock Parochial Mainstream Media.

IT’S NOT CHEATING WHEN THEY DO IT: Report: DHS Adding Millions of ‘New Americans’ to Vote Democrat in 2016. “Of the 20 states with the highest green card population, 14 are holding Senate races in 2016, so millions of new voters could dramatically impact the election.” This is no accident.

HOW OUR RULING CLASS THINKS: Gillibrand On Rape Hoaxes: ‘I Hope It’s Just Putting More Of A Spotlight On The Problem.’

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BECAUSE DIVERSITY!:  A “diversity” officer at Goldsmiths, University of London, Bahar Mustafa, sponsored a meeting recently to discuss the need for greater “diversity” in the curriculum, announcing on Facebook:

Invite loads of BME [Black and Minority Ethnic] Women and non-binary people!! Also, if you’ve been invited and you’re a man and/or white PLEASE DON’T COME just cos i invited a bunch of people and hope you will be responsible enough to respect this is a BME Women and non-binary event only.

Non-binary is a term that apparently refers to individuals who don’t identify as exclusively male or female.  Ms. Mustafa tried explain the exclusion of whites and men:

Don’t worry lads we will give you and allies things to do.

How thoughtful and inclusive of her, especially for a department that touts as its goals:

  • combat discrimination, victimisation and harassment
  • advance and promote equality of opportunity between different groups
  • foster good relations between people from different groups

Ms. Mustafa–is it a microagression to refer to her as “Ms.”?– describes herself as follows :

I am particularly interested in looking at the gendered body in Japanese pornographic anime and horror through a Foucauldian framework in order to analyse the West’s gaze upon a world it attempts to categorize.  My politics are intersectional, queer, feminist, anti-racist . . . I am a working class, Turkish Cypriot, queer, disabled woman and activist.

Um, okay.  I cannot for the life of me translate that first sentence into English.  She is interested in Japanese anime porn’s portrayal of “gendered” bodies (is there any other kind?) because it attempts to “categorize”?  Whatever.  Yawn.

Apparently, the University was forced to back-walk its exclusionary policy, later posting “ALLIES NOW WELCOME.”   Yeah, right– about as welcome as a bleeding pig in a lion cage.

Can you imagine a University holding an event and publicizing it as “whites only, please?”  Of course you can’t.  “Diversity” is a just a politically-correct label for discrimination against whites, especially white males.  And it most certainly does not include diversity of viewpoint (i.e., conservative thought).

RELATED (kind of):  Abercrombie and Fitch decides to ditch its uber-sexual teen marketing and simultaneously announced  plans to continue to encourage “inclusion and diversity,” such as hiring more non-white “associates” (formerly called “models”).   It also announced plans to establish the A&F Global Diversity and Leadership scholarship program with the National Society of High School Scholars.

Gee, I wonder if this has anything to do with the Supreme Court case currently under consideration, Equal Employment Opportunity Comm’n v. Abercrombie & Fitch?  This is a discrimination claim by a Muslim individual who was not hired by Abercrombie.  During the interview, she wore a headscarf, though it wasn’t mentioned during the interview. She was later told by a friend that she wasn’t hired because of the headscarf.

Bottom line:  Make it very expensive not to hire anyone other than a white male.  And of course, make white men feel unwelcome as much as possible.  Because #diversity!

BECAUSE DIVERSITY!:  Johns Hopkins University student government votes to ban Chick-Fil-A from its campus.  Because, you know, tasty chicken and the whole belief in God thing is a #microaggression against the LGBTQ community.

NEWS FROM THE WISCONSIN STASI: Milwaukee DA John Chisholm Lets The Mask Slip. Again.

For guys who ordered pre-dawn raids using battering rams, the John Doe prosecutors turn out to be kind of touchy… so thin-skinned that they actually let the mask slip.

Milwaukee DA John Chisholm was apparently so unhinged by recent criticism that he actually suggested Saturday that Governor Scott Walker be criminally charged with defamation for criticizing him.

So, no, Chisholm really doesn’t get the First Amendment thing, does he?

And so much for the notion of prosecutorial restraint and Chisholm’s non-political motivations. Normally, prosecutors running a secret investigation that imposes gag orders on subjects avoid public comment. But obviously, they have been feeling the heat — legally, politically. Maybe that’s not surprising, because they’ve had a very bad week. No, make that a bad year.

Chisholm deserves to end up broke and in jail.

ED DRISCOLL: Lambert and Stamp: The Men Who Made The Who.

LIFE IN THESE UNITED STATES: The Plight Of A Christian Professor At An Elite Law School. I totally disagree with Rod Dreher’s counsel of despair. I say, punch back twice as hard. For Jesus! And, yes, I’m totally serious.

WORDS OF WISDOM, FROM JOHN RINGO ON FACEBOOK: “Idiots abound to such an extent one has to pick and choose which ones to care about and which to ignore.”

A TORTUROUS WASTE OF TIME:   Apparently, banning torture — even in one’s constitution — doesn’t do much to reduce the incidence of torture.  A recent study conducted by a couple of law professors concludes that they “do not find any evidence that constitutional torture prohibitions have reduced rates of torture in a statistically significant or substantively meaningful way.”  The authors find that 84% of national constitutions prohibit torture, and yet “countries without constitutional torture bans have actually engaged in less torture” over the 1990-2010 time period studied.

The definition of “torture” itself is highly subjective.  The UN Convention on Torture, for example, defines it as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”.  But putting that definitional problem aside, torture may well work in some situations, yielding information that could not otherwise be obtained.  Robert Jervis, examining the Senate Intelligence Committee’s controversial report on the CIA’s interrogation program, put it this way in the latest issue of Foreign Affairs:

In judging the torture’s effectiveness, the majority report looks for direct connections between the intelligence derived from the torture and its benefits to national security. But the minority and CIA rebuttals are right to urge a broader view. For one thing, analysts needed a great deal of information about al Qaeda before they could make sense of any one source. By the majority report’s standard, the torture was not effective if it merely contributed to a general understanding of al Qaeda, rather than leading directly to the foiling of a terrorist plot or the capture of an 
al Qaeda member. Yet crucial insights often result from indirect links. It might have been, as the majority report argues, that breaks in many cases came from prisoner interrogations that did not involve torture. But in some cases, interrogators asked those detainees questions because of intelligence that came from others who were tortured. And although the majority report lends little weight to information that simply confirmed other intelligence, such findings can prove invaluable, since tips from individual sources are rarely sufficient to merit action on their own. In essence, the report and the rebuttals talk past each other on this point: the Democrats dismiss evidence of a type that the Republicans and the CIA (rightfully) consider central.

This past week, Amnesty Intenational issued a new report, complaining that the Obama Administration has “done nothing” after the Senate Intelligence Committee’s report, and urging DOJ to prosecute CIA and other U.S. officials involved.

Even if one agrees that what the CIA did, post 9/11 was “torture,” the truth remains that in some situations, the risk of not using such techniques may well exceed societal benefits of refraining from their use.  As liberal law professor Alan Dershowitz has put it, “No President would want to be responsible for the deaths of thousands of innocent citizens if he could have prevented these deaths by authorizing the use of nonlethal torture against a guilty terrorist.”

Indeed, there is a logical reason why constitutional prohibitions on torture don’t reduce its use:  We may ban torture, to make ourselves “feel” better.  But given its amorphous definition and potential to save thousands of innocent lives, it will continue to be used in extraordinary situations.  So there is a legitimate question as to whether it is desirable, from the perspective of the rule of law, to ban something society knows (and indeed expects) will be disregarded in the most difficult situations.   And polls show Americans overwhelmingly believe torture is appropriate in such situations.

WELL, THIS IS THE 21ST CENTURY, YOU KNOW: ULA’s New Vulcan Rocket Comes Back to Earth via Helicopter. “ULA’s new Vulcan rocket will use BE-4 engines currently being developed by Blue Origin, the private aerospace company of Amazon founder Jeff Bezos. They’ll be 20 percent more powerful than the engines currently powering ULA’s Atlas, and Vulcan will be able to handle six strap-on boosters for heavy lifting, as opposed to five on the Atlas. The Vulcan replacement for the Atlas should cost under $100 million, $65 million less than an Atlas launch, and competitive with the SpaceX Falcon. With 65% of the booster costs of the Vulcan wrapped up in the engines, reusability can slash launch costs dramatically. Rather than try to duplicate SpaceX’s not-yet-successful vertical landing to reuse the entire rocket, ULA is planning on reusing just the engines themselves, and to do that, they need to come up with a way of getting them back to Earth in a soft, gentle, non-crashy sort of way.”

OUCH: I Once Ate Barbecue Pork That Was Smoked in an Old Clothes Dryer: That’s how much barbecue sucks in San Francisco. Though, honestly, that wouldn’t necessarily have to be bad. And, in fact, in this case it wasn’t: “It was really, really good. In fact, it was the only edible barbecue sandwich I’ve been able to find in the entire Bay Area—and I’ve looked, I’ve looked really hard.” Which kind of undercuts the great headline.

But is this really a surprise? I mean, the place is a cultural wasteland: “People in San Francisco don’t have any idea how to make barbecue. They also don’t understand iced tea, chicken and waffles, or biscuits and gravy—but it’s the barbecue that really gets me.”

UPDATE: Reader Austin Waine emails:

I grew up in Memphis, went to UT (had several friends who were your students), lived in Nashville for 4 years, and have lived in SF for the last 3.

When I moved here, the BBQ was suspect; but there have been several spots producing good ‘cue. It’s not quite the Wasteland the author described.

http://4505meats.com/ These guys have *killer* brisket. Check out their site background photo and tell me that doesn’t look tasty.

http://sneakysbbq.blogspot.com/ This guy has an underground operation consisting of an email list and weekly pop-ups at SF area bars. He makes killer pork ribs, pulled pork, and even vegan using jackfruit. He uses high quality meat and smokes it in almond wood that doesn’t impart a lot of smoke flavor and brings out the flavor of the meat.

Well, good.

TEST-DRIVING THE 2016 Lexus ES. I don’t care for the “spindle grille.” It’s not quite as big a turnoff as the Acura beak, which I’ve always detested, but I’m not crazy about it.

ACCULTURATED: Fascism in Our Comics: It’s Not Where You Think.

MICHAEL WALSH: The World Barack Obama and Eric Holder Have Made: Baltimore, 2015. “You voted for it, America. And now you’re going to get it, good and hard.”

IN THE MAIL: From Dr. Tara Palmatier & Paul Elam, Say Goodbye to Crazy: How to Rid Yourself of that Crazy Ex and Restore Sanity to Your Life.

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TAXPROF ROUNDUP: The IRS Scandal, Day 717.

DEATH BY A THOUSAND LAWSUITS?:   The death penalty may be dying a slow death, by litigation.  The Republican-controlled unicameral Nebraska legislature voted 30-13 (with 17 Republican “yes” votes) to repeal that state’s death penalty. The reasons for lost Republican support are varied:  the inefficiency (and cost) of years of litigation to carry the penalty out; perceived incongruity with pro-life beliefs; fear of wrongful executions; and a shortage of drugs needed to carry out executions.

The drug shortage is the biggest culprit.  The death penalty in most states is carried out by a lethal injection of a three-drug “cocktail”:  (1) an anesthetic (to prevent pain); (2) a paralytic (to paralyze); and (3) potassium chloride (which stops the heart). But in early 2011, U.S. drugmaker Hospira announced it would no longer manufacture sodium thiopental, the primary anesthetic used in the lethal injection cocktail.

Hospira’s exit from the market left States scrambling for a substitute, including purchases of the drug from foreign markets. When death penalty lawyers complained that States lacked legal authority to import sodium thiopental from foreign countries, the Obama Administration seized State stockpiles of the drug, claiming its possession violated federal law.  States then turned to pentobarbital, manufactured by Danish drug company Lundbeck.  But by summer 2011, Lundbeck, too, announced it was denying distribution of the drug to U.S. prisons.

The State of Oklahoma has turned to midazolam hydrochloride as a substitute anesthetic, though it hasn’t specifically been approved by the FDA as such.  It is widely used off-label, however, for anxiety and sedation.  On Thursday, the Supreme Court will hear an Eighth Amendment challenge, Glossip v. Gross, to Oklahoma’s use of midazolam, which claims that its use constitutes “cruel and unusual punishment” because midazolam isn’t foolproof at inducing unconsciousness.

The Supreme Court has never struck down a specific death penalty method as unconstitutional.  Indeed, in 2008, the Supreme Court upheld the constitutionality of a four-drug lethal injection cocktail in Baze v. Rees.  The Court suggested, however, that a state may violate the ban on cruel and unusual punishment if it continues to use a lethal injection method, without sufficient justification, in the face of superior alternative procedures.  In the Glossip case pending before the Court, therefore, Oklahoma asserts–in an excellent brief authored by Oklahoma Attorney General Scott Pruitt and well-known constitutional lawyer David Rivkin– that the inmate must carry the burden of proving that there are, indeed, superior alternative anesthetics available. They assert:

This Court requires Petitioners to demonstrate the availability of a constitutional alternative method of execution for good reason. Capital punishment is constitutional, and this Court has made clear that States must have a means of carrying it out, even if some pain results as an inescapable consequence of execution. Accordingly, challenges to a method of execution must demonstrate that there exists a feasible alternative method that will result in substantially less pain. Otherwise, a petitioner’s challenge would constitute a challenge to the death penalty itself – an issue foreclosed by the Constitution.

In the event that the Supreme Court uses Glossip to reopen the constitutionality of lethal injection, States are now bringing back older methods of execution including nitrogen gas, the electric chair and firing squad.

States’ adopting a variety of methods is probably the best way to ensure that the death penalty can survive these liberal/progressive “lawfare” tactics.

UPDATE:  Midazolam’s use for anxiety and sedation is “on label,” but its use for maintenance of general anesthesia is off-label.  It should be noted, however, that off-label uses of all FDA-approved drugs is perfectly legal and indeed, common.

MEGAN MCARDLE: Welfare Reform Was, and Still Is, a Good Idea. Yes, but the Democrats’ political strategy requires a large, dependent, easily-mobilized underclass.

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WE CAN’T TALK ABOUT DIVERSITY AROUND PEOPLE WHO ARE DIFFERENT! Anger after white people and men are banned from ‘anti-racism’ rally at British university by its own student union DIVERSITY OFFICER.

A students’ union has been accused of racism and sexism after banning white people and men from an event to promote equality.

Those studying at Goldsmiths, University of London, were invited to the students’ union meeting to discuss ‘diversifying the curriculum’.

But they were shocked when an organiser told white people and men ‘not to come’ as it was only open to BME [black and minority ethnic] women.

The union eventually backed down after a backlash from students, one of whom described the exclusive policy as ‘patronising beyond belief’.

The event, held on Wednesday, was organised by welfare and diversity officer Bahar Mustafa, who said she hoped to persuade academics to broaden courses to include more material relating to minority groups.

Fire her.

THOUGHTS ON UVA AND CAMPUS SEX CULTURE. I’m not convinced that campus sex culture is all that bad — though this piece seems to think otherwise, there are actually fewer sexual assaults on campuses than off — but the hypocrisy and ideological maneuvering of colleges on the subject is pathetic.

FLASHBACK: With so Many Red Flags, Why Isn’t the IRS Auditing the Clinton Foundation? Probably the same reason they’re giving Al Sharpton — and, apparently, the entire on-air staff of MSNBC — a pass.