ProfessorBainbridge.com

Schramsberg J. Schram (California) 1999

This Chardonnay-based m�thode champenoise sparkling wine presents a lovely yellow-gold, with tons of very fine bubbles. On the nose, it offers apples, citrus, toast, and vanilla. On the palate, besides those flavor associations, the combination of bracing acidity and bubbles makes it a great match for rich foods. Very highly recommended. Grade: A-/A

Quail stuffed with foie gras and pistachios

The quail

• 4 semi-boneless quail (de-boned except for the legs)
  \t\t
• ½ medium yellow onion, chopped
  \t\t
• 1 shallot
  \t\t
• pat butter
  \t\t
• 3 ounces ground duck (or turkey)
  \t\t
• 1 teaspoon cognac
  \t\t
• 3 tablespoons heavy cream
  \t\t
• 3 ounces foie gras
  \t\t
• ¼ cup shelled pistachio nuts, lightly smashed
  \t\t
• Salt and freshly ground white pepper

The sauce

• 1 package D’Artganan veal & duck demi-glace
  \t\t
• 1 teaspoon balsamic vinegar
  \t\t
• 1 cup dry white wine
  \t\t
• 1 cup low-sodium organic chicken stock
  \t\t
• 2 ounces foie gras
  \t\t
• Salt and freshly ground white pepper
  \t\t
• juice of ½ lemon
  \t\t
• 1 tablespoon heavy cream
  \t\t
• 1 tablespoon butter
  \t\t
• 1 teaspoon cornstarch dissolved in one tablespoon cold water

Rinse quail and pat dry with paper towels. Season the quail inside and out with salt and white pepper.

Melt the butter in a small sautê pan and sweat the shallot until tender. Add the ground duck, season with salt and white pepper, and sautê until just done. Remove the duck and shallot mixture to a mixing bowl and allow to cool briefly.

Combine the the duck and shallot mixture with the brandy, cream, pistachios, and foie gras. Season with salt and white pepper.

Stuff the quail with the mixture. Place the stuffed quail on an oiled rack in a roasting pan and brush each with melted butter. Roast at 450° F for 10 minutes. Lower the heat to 325° F and continue roasting for 20 minutes.

While the quail is roasting, make the sauce. Combine demi-glace, balsamic vinegar, wine, and stock in a medium saucepan. Bring to a boil and reduce to a simmer. Allow to reduce to one cup. Combine the reduced stock mixture, foie gras, lemon juice, and cream and whisk until the foie gras is mostly melted away. Add butter, a dash of balsamic vinegar and whisk until melted. Dissolve one teaspoon cornstarch in a tablespoon of cold water and add to sauce. Return the sauce to a boil for one minute and remove from heat. Whisk smooth.

Place each quail on top of a wild rice cake and spoon sauce around. Serve 1 quail per person with sauce for an appetizer or two for an entrée.

Schramsberg Blanc de Noirs (California) 2001

A very interesting sparkling wine. A clear yellow-gold, with no hint of redness. Very fine bubbles. The dominant flavor association is tart apple, which is somewhat unusual in my experience for a Pinot Noir- dominated sparkling wine such as this. Lovely. Grade: B+/A-

Joseph Phelps Sauvignon Blanc (Napa Valley) 2005

A richer wine than some Sauvignon Blancs, while still offering more than enough acidity to make it refreshing. Meyer lemon, melon, and green apples. Grade: B+

Hanging Saddam: A Magisterial Perspective

The NYT opines:

Toppling Saddam Hussein did not automatically create a new and better Iraq. Executing him won’t either.

That's certainly true, but hanging Saddam is still the right thing to do.

I agree with - or, to put it more precisely, I give religious assent to - Pope John Paul II's teaching in Evangelium vitae that society:

... ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

Although a "top Vatican official condemned the death sentence against Saddam Hussein in a newspaper interview published Thursday, saying capital punishment goes against the teachings of the Roman Catholic Church" (link), I think that under the magisterial teaching of the Church - which is what is binding on those of us who are Catholics - a case can be made for an exception in Saddam's case. It is the "very rare" case to which JP II referred.

Although Cardinal Renato Martino reportedly said in reference to Saddam's pending execution that "no one can give death, not even the State,"  in fact, nothing in the sacred magisterial teaching of the Church forbids the death penalty. To put it another way, no Pope has ever forbade the death penalty while speaking ex cathedra, nor has an ecumenical council done so.  Likewise, the ordinary magisterial teaching of the Church, as represented in the Catechism (2267) "does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor." And, of course, as we have seen, even JP II's encyclical on the Gospel of Life, which is probably the most anti-death penalty Church document to date, contemplated that the death penalty remains licit in rare cases.

As I've said before, the best analysis of the Church's teachings on the death penalty I've read remains Avery Cardinal Dulles' April 2001 First Things article Catholicism & Capital Punishment. His careful and nuanced analysis concludes by extracting 10 theses from the Magisterium:

1. The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.
2. Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.
3. Punishment may and should be administered with respect and love for the person punished.
4. The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so.
5. Individuals and private groups may not take it upon themselves to inflict death as a penalty.
6. The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.
7. The death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment.
8. The sentence of death may be improper if it has serious negative effects on society, such as miscarriages of justice, the increase of vindictiveness, or disrespect for the value of innocent human life.
9. Persons who specially represent the Church, such as clergy and religious, in view of their specific vocation, should abstain from pronouncing or executing the sentence of death.
10. Catholics, in seeking to form their judgment as to whether the death penalty is to be supported as a general policy, or in a given situation, should be attentive to the guidance of the pope and the bishops. Current Catholic teaching should be understood, as I have sought to understand it, in continuity with Scripture and tradition.

As for #1, the purposes of punishment, there seems little reason to think that Saddam can be rehabilitated. To the contrary, putting him to death will protect society against the risk that he might escape. It may also deter future tyrants.

As for # 4, can there be any doubt that Saddam has done more than enough evil to justify capital punishment? Mass murder. Torture. Attempted genocide. Aggressive war. Use of WMD against the Kurds. The litany goes on. The same factors support the death penalty under principle # 6.

As for # 7, the goals of retribution and deterrence cannot be achieved in this case by imprisonment. There would be a perpetual risk that Saddam would escape. Mere imprisonment is hardly proportionate to the gravity of Saddam's crimes. Mere imprisonment would not provide a sufficiently serious example to deter future tyrants.

Finally, as for # 8, executing Saddam is unlikely to make the insurgency any worse. To the contrary, one hopes it may deter some Baathist diehards.  On the other hand, under this prong, one could make a fairly strong argument based on the claim that Saddam's trial was so lacking in due process that it was fundamentally unfair. Conversely, as the WaPo opined:

The reality is that by the trial's end, there was no significant factual dispute between prosecution and defense: Saddam Hussein acknowledged on national television that he had signed the death warrants after only the most cursory look at the evidence against his victims. That, he testified proudly, "is the right of the head of state." Exactly what would a perfect trial be capable of discovering?

Ed Morrissey also observes:

... the purpose of trials is not to nurture hope -- it's to determine the truth regarding guilt or innocence of the accused. In this, the tribunal succeeded, although as the Times notes, the issue was not in much doubt. The trial also succeeded in giving voice to many of Saddam's victims, something the Times must have missed in its zeal to find hope-nurturing elements in a genocide trial. The tribunal also established solid legal precedents for a fledgeling judiciary that has to establish itself mostly from scratch.

On balance, under the totality of the circumstances, I find it hard to conclude that executing Saddam would be a miscarriage of justice.

In sum, given the severity of Saddam's crimes and the risk that he might escape to fuel the insurgency or even start rebellions, capital punishment seems appropriate in this case. Hence, I'm in substantial agreement with Morrissey:

As I am opposed to the death penalty in civilian courts, Saddam's execution presents an interesting challenge. Michael Stickings says he cannot support the death penalty under any circumstances, but I think there is a large distinction between civil death sentences and those under wartime and genocidal conditions. ... genocidal tyrants tried by their own people and executed for their crimes serve as an example for other tyrants to fear -- and it removes the jailed tyrant as a focus for restoration, a situation that history has proven to be dangerous to recovering societies.

Update: In a very well-informed and thoughtful post, Michael Joseph takes the opposite view. After tracing recent developments in authoritative Catholic teaching on the death penalty, he concludes:

The possibility of a situation where the death penalty may be necessary is not denied in their teachings. However, there is strong skepticism expressed as to whether there are actual present conditions for the use of the death penalty.

I agree completely with that assessment, but that assessment does not end the inquiry. Instead, because Catholic teaching still holds out the possibility that the death penalty may be licit, we must ask whether actual present conditions in Iraq justified its use in this case.

Joseph exercises prudential judgment in concluding that "Saddam's death sentence does not meet the criteria of Catholic social and moral teaching, and Martino has correctly noted that fact." I disagree, albeit respectfully. The basis for Joseph's judgment is as follows:

The likelihood that Saddam could ever rise again to power is negligible; the world would not permit it. The atmosphere of death and fear that he generated will never arrive again by his doing.

First, "the world" did nothing to remove Saddam from power. The US and UK did more or less on their own, along with a fig leaf coalition. If Saddam were to escape, presumably it would be the US and UK that would have to prevent his return to power. Suppose Saddam did not escape until the US and UK have withdrawn from Iraq, however. Is it likely they would invade Iraq again to prevent Saddam from returning to power, especially given the political trends in both the US and UK? As for "the world," is it likely France, Germany, or any of our other allies who sat out Gulf War II would participate in a Gulf War III?

Second, is it realistic that Saddam might escape? In December 2006, an ex-Iraqi minister, Ayham al Samaraie, "who had escaped once before after being convicted in October," escaped from "a police station just outside the heavily fortified Green Zone where the dual U.S.-Iraqi citizen was being held on corruption charges." (Link) In February 2006, 23 al Qaeda operative broke out of a maximum security prison in Yemen. (Link) In November 2005, four top as Qaeda operatives broke out of US custody in "one of the most heavily fortified military prisons in the world" at Bagram airbase in Afghanistan.  (Link)

Most pertinently, Saddam's own nephew, who was serving "a life sentence for financing insurgents and possessing bombs escaped from prison ... in northern Iraq." (Link)

Given the unsettled nature of Iraq's government, the apparently rampant corruption, the likelihood of additional chaos should the US and UK pull out, the persistence of Saddam loyalists, I believe reasonable minds could conclude that the risk of a return by Saddam to power was non-negligible and thus justified his execution in the name of ensuring the safety of Iraqi society. If one believes that the Magisterium still allows consideration of issues of rehabilitation and retribution, as Avery Cardinal Dulles argued in his First Things essay, the case that executing Saddam would be licit in Catholic legal theory strikes me as fairly strong. This was, indeed, the very rare case.

More on the Duke "Rape" Case and the Academic Left

KC Johnson has an incisive column on the role academic groupthink played in the rush to judgment by so many members of the Duke faculty in the Duke lacrosse "rape" case. he flags three issues:

1. Concerns about McCarthyite behavior tend to depend on who is targeted.

2. In the contemporary academy, some students are more equal than others

3. Groupthink has its effects.

Money quote:

The behavior we?ve seen from Duke?s faculty ? the frantic rush to judgment coupled with a refusal to reconsider ? was all too predictable. The Group of 88?s statement was fully consistent with basic ideas about race, class, and gender prevalent on most elite campuses today. Reconsidering their actions of last spring would have forced the Group of 88, and sympathetic colleagues, to reconsider some of the intellectual assumptions upon which the statement was based.

Based on my 18 years of teaching at two state universities, plus my 9 years as a student in college and graduate schools, Johnson's critique of the campus environment strikes me as just about right. The rush to judgment here was entirely consistent with the prevailing attitudes among academic elites towards race, gender, class, and, for that matter, sports.

John Edwards Announces - The Economy

John Edwards' announcement of his bid for the 2008 presidential nomination had relatively little to say about building the economy. Back in 2004, I wrote that Edwards policies on corporate governance were "demonstrably wrong." I also criticized Edwards' impact on the economy as a trial lawyer. Given the deleterious effects the trial lawyer industry has had on the American economy, as ably demonstrated by the Manhattan Institute's Trial Lawyers Inc. project, I remain unconvinced that a trial lawyer ought to have much authority over the economy.

John Edwards Announces - Iraq and Foreign Policy

In his presidential bid announcement, John Edwards set out his Iraq policy, which can be briefly summarized as "cut and run":

... we need to make it clear that we intend to leave Iraq and turn over the responsibility of Iraq to the Iraqi people. The best way to make that clear is to actually start leaving, which is why I've said we ought to be taking 40,000 to 50,000 troops out now, and that ought to continue over time.

The arguments against the cut and run policy are well-known, and have been rehearsed bith here and elsewhere. As I wrote in a col umn for the Examiner:

As an Army brat growing up during the Vietnam War, I saw the damage our strategy of just declaring victory and going home did to Army morale and prestige, to the tone of our national politics and our nation?s standing in the world. Later, we cut and ran from Lebanon. More recently, we cut and ran from Somalia. I have no doubt that this pattern of cutting and running emboldened al-Qaida. We simply cannot afford to cut and run from Iraq, lest our foes be emboldened to new and even more devastating attacks. A global hegemon that keeps running away when the going gets tough will not command any respect.

In sum, even if attacking Iraq was imprudent, we have to stay the course. There could be nothing less prudent than cutting and running. Our permanent national interests now require that we win the peace.

While he's replaying the 60s anti-war movement with respect to Iraq, Edwards is also promoting a more robust foreign policy elsewhere:

... we're going to have to lead on things that, at least in the short term, seem like they're beyond our self- interests, things like the genocide in Sudan and Darfur. We said after Rwanda we'd never let anything like this happen again. Well, it's happening right now. America needs to lead.

I was in Uganda a few weeks ago where there are huge atrocities going on in northern Uganda. America can make an enormous difference there. I was there with the International Rescue Committee, who are another group of Americans that are making a huge difference in the world.

And how are we going to make a difference when armed thugs are commiting genocide? By sitting around the campfire singing Kum Bay Yah? Or does Edwards plan a return to the Clinton policy of deploying the military in places in which the US has no security interest and refusing to commit the military to places in which the US has such an interest?

John Edwards Announces - Poverty

John Edwards today announced his candidacy for the 2008 Democratic nomination for President. Transcript here. he apparently intends to make poverty a key part of his campaign:

I spoke earlier about this issue of poverty and the two Americas. I've been running the poverty center for the last couple of years at the University of North Carolina, which I'm very proud of. And we've developed a whole new set of ideas about what we ought to do about poverty.

Commendable. Yet, his concern might be more plausible if he has demonstrated such concern in private life. Unfortunately, as the Washington Times reports, "During his career of allegedly championing the helpless, he took no pro bono cases." This failure is especially noteworthy given that the North Carolina bar's rules of professional responsibility state that "The provision of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer ...."

Duke Rape Case Unravels; Plus, what will Dick Wolf Do?

Stuart Taylor and KC Johnson explore the role race and class have played in the now infamous Duke lacrosse player rape case:

It's no secret that hugely disproportionate numbers of the innocent people oppressed by abusive prosecutors and police in this country are African-Americans. Now one of the most outrageous cases of law-enforcement abuse is unfolding in Durham, N.C., home of the Duke lacrosse case. And African-Americans are leading the cheers for the oppressors. Why? The poison of identity politics, plus class hatred of the prosecutor's three main victims, well-off white men falsely accused of rape by an unstable black "exotic dancer," and a deeply dishonest district attorney.

As Taylor and Johnson recount the evidence, it seems clear that the players are innocent of rape and probably the rest of the charges.

But on to another aspect of the case. Taylor and Johnson point out that "two weeks ago we learned--only because dogged defense lawyers cracked a prosecutorial conspiracy to hide evidence of innocence--that the private lab did find the DNA of "multiple males" in swabs of the accuser's pubic hair, panties, and rear after the supposed rape. None of this DNA matched any lacrosse player." Will DA Nifong get hit with ethics charges? With violating the players' constitutional rights.

Perhaps more important, however, how will Dick Wolf play this story? Everybody knows that the disclaimer run before every Law and Order episode is bogus. Wolf may claim that the story and characters are fictional, but the stories in fact are often ripped from the headlines.

The trouble with telling a prosecutorial misconduct story is that all the recurring characters are prosecutors. Would Jack McCoy commit the sort of egregious violations Nifond allegedly has done? And, if so, how do you bring him back next week?

One solution, I suppose, would be to have another EADA commit the violation, which McCoy then investigates. Alternatively, if Wolf decides to write the Connie Rubirosa character off the show, he could have her commit the violation unbeknownst to McCoy (or vice-versa in case it's time for Sam Waterston to retire).

BTW, I didn't see the Shark episiode based on the Duke case, which in any event appears to have been filmed back before Nifong's misconduct had been so dramatically laid bare.

Should Ford Have Pardoned Nixon?

With the passing of former President Gerald Ford, the blogosphere is abuzz with rehashes of President Ford's pardon of Richard Nixon. (See, e.g., Mark Tapscott's roundup post.) I was 14 when Ford pardoned Nixon and I remember a profound sense of relief, because it had seemed like the country was going down the tubes. Viet Nam had ended in a mess, which was a particularly important issue for those of us who lived in military families, but the whole country was still badly divided. The cultural revolution of the 60s was still working its way through society. The Soviet Union was still poised to roll through the Fulda Gap. The 1973 Yom Kippur War had scared everybody with the possibility of igniting World War III. The Arab oil embargo had led to massive gas lines (scaring this incipient driver) and plunged the country into a serious recession. Indeed, the economy was struggling with inflation and flirting with stagflation.

The last thing the country needed was a protracted and divisive trial. The Constitutional system of checks and balances had worked the way it's supposed to, with the threat of impeachment driving a corrupt and dishonest President from office.

Duke's Academic Left

In their demolition of the Duke "rape" case, Stuart Taylor and KC Johnson sharply criticize "the powerful, identity-politics-obsessed hard left of Duke's own faculty, 88 of whom issued a statement in April saying "thank you" to protesters who had branded the players rapists. " In particular, it may well be worth recalling the reaction of Duke law professor Paul Haagen who told the local newspaper:

"There was a sense of, 'This is sad, and it's terrible,' " Haagen said. "Beyond that, people don't know what's going on."

Haagen, a law professor who specializes in sports law, said studies show that violence against women is more prevalent among male athletes than among male students in general -- and higher still among such "helmet sports" as football, hockey and lacrosse.

"These are sports of violence," he said. "This is clearly a concern."

What's sad and terrible is the way this case, to quote Taylor and Johnson, "is now unraveling so rapidly as to be ridiculed on 'Saturday Night Live.'" What's also sad and terrible is the way the academic left at Duke (and elsewhere) assumed these kids were guilty and used the opportunity to get in some shots at the "helmet sports."

Doctrines Don't Kill People, People Kill People

If I may so paraphrase an old NRA slogan, Eugene Volokh offers what I think is the definitive take on Ann Althouse's argument that "someone promoting federalism today needs to pay attention to the way it was used 50 years ago."

... of course we should expect that the institutions will sometimes be misused. Each of them, for instance, helped play a role in preserving slavery or segregation. The Supreme Court's first use of the substantive due process doctrine, for instance, was in Dred Scott v. Sandford, the 1857 case in which the Court struck down the Missouri Compromise by holding that Congress had no power to automatically free all slaves who went into certain federal territories. Each of them has been misused many other times as well, though we may disagree about which times they were.

So a particular incident in which an institution has yielded bad results -- or, to be precise, yielded results that we think were worse than they would have been in the institution's absence -- is some evidence against the institution's quality. In that respect, it does taint the institution. But by itself each such incident taints the institution only slightly, because the question isn't whether the institution will ever help bring about bad results, but whether on balance it's better than the alternatives.

I'm not sure why Eugene would call federalism an institution, but set that question aside. Principles are tools by which we build a just society. To say that federalism is tainted by its association with racism is like saying all hammers are tainted because Warren Leblanc used one to kill Stefan Pakeerah or, for that matter, like saying all video games are tainted because Leblanc was supposedly inspired by Manhunt.

Because hammers can be misused, of course, it behooves one to exercise care when using it. But one hardly needs to invoke Pakeerah's memory every time one swings a hammer. Likewise, it's hardly necessary for me to preface every blog post or article I write about Delaware and competitive federalism with some cautionary note about Jim Crow.

Tempest, meet teapot.

Legislate in Haste, Repent at Leisure

The text of my May 2006 speech to the Hoover Institute on Sarbanes Oxley, Legislate in Haste, Repent at Leisure is now available online. The NCPA's Daily Policy Digest summarizes as follows:

Sarbanes-Oxley (SOX) legislation is costing businesses more than anybody anticipated, putting many at risk, and forcing some to go private, or worse, go broke, says Stephen Bainbridge, William D. Warren Professor of Law at the University of California, Los Angeles.

For example:

• According to the Wall Street Journal, publicly traded companies routinely report that their audit costs have gone up as much as 30 percent, or even more, as a result of the tougher audit and accounting standards imposed by SOX.
• Just paying the fees now required to fund the Public Company Accounting Oversight Board can run as much as $2 million for the largest firms.
• Corporate law firm Foley & Lardner, for example, found that senior managers of public middle-market companies expect costs to increase by almost 100 percent as a result of SOX.

The most costly part appears to be Section 404, which requires inclusion of internal control disclosures, says Bainbridge:

• The Securities and Exchange Commission initially estimated that Section 404 would require only 383 staff hours per company per year.
• But according to a Financial Executives International survey, projected expenditures of staff hours reach 35,000 -- almost 100 times the SEC's estimate.
• In addition, the survey estimates that firms will spend $1.3 million on external consultants and software, and an extra $1.5 million in audit fees -- a jump of 35 percent. 

The most troubling aspect is that the costs are disproportionately borne by smaller public firms.  For many of these, the additional cost is a significant percentage of their annual revenues.  Some have chosen to go private.  But for those who stay public and are operating on thin margins, SOX compliance costs can make the difference between profitability and losing money, says Bainbridge. 

Joe Fox was Right

Remember this scene from You've Got Mail?

Joe Fox: Do you know what, we are gonna seduce them. We're gonna seduce them with our square footage, and our discounts, and our deep armchairs, and...
Joe Fox, Kevin: Our cappuccino.
Joe Fox: That's right. They're gonna hate us at the beginning, but...
Joe Fox, Kevin: - but we'll get 'em in the end.
Joe Fox: Do you know why?
Kevin: Why?
Joe Fox: Because we're going to sell them cheap books and legal addictive stimulants.

Joe was right:

Empty shelves line a back wall of Coliseum Books in midtown Manhattan and a few customers flip through the remaining stock for bargains.  After more than three decades the independent bookseller is closing its doors -- one of many bookshops across the United States that have fallen victim to the Internet, chain stores like Borders and Barnes & Noble, and large discounters.

It's sort of sad. On the other hand, somehow Barnes & Noble and Amazon don't bother me quite as much as Walmart does. Maybe it's because Walmart doesn't have deep armchairs.