ProfessorBainbridge.com

Canning Reese

The resignation under pressure from the Vatican of Fr. Thomas Reese as editor of America, the Jesuit magazine, is generating a lot of flak from the usual suspects. Russell Shaw, however, offers a persuasive defense of the decision:

Where [America] formerly defended the church's doctrines and policies with unblushing tenacity, it came to prefer dissent. During Father Reese's tenure, it implicitly took issue with the church on matters such as same-sex marriage, fetal stem-cell research and a Vatican declaration five years ago underscoring the unique redemptive role of Christ and the Catholic Church. America didn't say flatly that the church was wrong about such things, but in one way or another suggested as much, giving space over to critical views.

Such an editorial policy may sound perfectly proper--even laudable, in keeping with the spirit of a free press. But America isn't like most other magazines. Catholic priests are public officials of the church, with a duty to reflect its teachings and policies in word and deed. This duty may seem archaic now, after several decades in which numerous clerics and others affiliated with the church have routinely questioned the magisterium of the pope and bishops. Yet the traditional model remains the norm.

Thus editing a religious magazine is, for a priest, analogous to preaching a homily. Catholics rightly expect to hear their church's teaching expounded from the pulpit, and they have the same right to find it upheld in the pages of a Catholic journal edited by clerics and published by a religious order. Parallels are easy to find in other fields. Junior officers do not have the right to lecture the troops on the folly of the strategy and tactics devised by senior officers. Diplomats are not free to criticize their governments' policies before their foreign counterparts. And public officials of the church have no right to undermine its authoritative doctrine and policy in the eyes of the Catholic people.

Wine and Illegal Immigrants

In the Wine Spectator (I think you may have to be a subscriber to read the whole thing), J ames Laube praises the role of Hispanics in the California wine industry and even dares acknowledge the contributions made by illegals:

The Sabor de Napa ("flavor of Napa") event salutes Latino influences on winegrowing, cuisine and visual arts in Napa Valley. ... There are now more than a dozen Hispanic-owned wineries in California; perhaps the most prominent is the lavish Rutherford estate of Quintessa, founded by Chilean natives Agustin and Valeria Huneeus. ...  Among enologists, Elias Fernandez of Shafer would make the short list of the state's finest winemakers. ...

As vital and energizing as Hispanics are to the wine industry, their contributions to California's overall economy are so pervasive and indispensable that I doubt we could exist without them. They are today's labor force, just as Europeans and Chinese were in centuries past. One of the great ironies is that as the wine industry pays homage to Hispanics, there is talk in the state capital of tightening the border and making it hard for Hispanics to cross.

Many Hispanics who work in the wine business are U.S. citizens and part of the American fabric. "For us?and I speak for many? [Hispanics] have been long-term employees and really a strong part of our company," says Craig Williams, winemaker at Joseph Phelps Vineyards in Napa. "They are involved in all aspects of the business?accounting, sales and marketing. They are our next generation of lawyers, doctors, scientists and teachers. It's a great American success story."

It's also a double-edged sword, since many other Hispanics entered California illegally and aren't citizens. Shutting down or even constricting the flow of immigrants across the border would be disastrous well beyond the wine industry.

Hispanics are the backbone of the wine industry, pure and simple, says Pete Seghesio, CEO of Seghesio Family Vineyards in Sonoma County. Year-round, most of the vineyard work is done by Hispanics?everything from pruning vines in the winter months, to thinning grapes and leaves during the growing season, to the actual harvest.

"We can't do what we do without them," Seghesio says. "California cannot make 90-point wines without the hand care of these individuals. We're not Australia, where many of the [farming operations] are done by machines. It's impossible to make the kind of quality wine we're making in California today without this labor force of hands." ... The bottom line, though, is this, says Seghesio: "If people really knew the percentage [of Hispanics working in California] that's driving our economy, there wouldn't be any of this talk from our government."

Unfortunately, if my hate mail is any indicator, Seghosio's wrong. People know and an awful lot of them don't seem to care. They don't want the illegals here, no matter how much they contribute to our culture and economy.

Rosty on Social Security Reform

If anybody knows how scary seniors can be when you threaten their government gravy train, it's former Democrat congressman Dan Rostenkowski:

... it all boiled over on a hot day in August when [Rostenkowski] failed to sell the new coverage to elderly activists at a seniors' center on Chicago's North Side. Brandishing canes, some waving signs saying "Rottenkowski," they chased the sweating, panicked lawmaker to his car. When they surrounded his car, he got out and ran down the street. (Link)< /p>

(I wish I could have found a picture of it for you.) So imagine my surprise when Rosty came out in support of Social Security reform:

Democrats have been unified in saying they don't want to deal on Social Security long-term solvency issues until Bush takes individual investment accounts off the table.

Rosty said Bush ought to yank his individual account plan to call the Democrats' bluff. "You know what I would do if I were the president? I'd take it off the table and say, 'OK, come up with something.' And the Democrats would be frightened as hell.''

Pension Fund Politics

There's a very good column by Bryan O'Keefe over at TCS on how union pension funds are playing politics. Money quote:

Take Social Security as an example. Should union bosses really be deciding who manages their pension funds based on a firm's position on Social Security? Shouldn't actual financial performance count for something? If the AFL-CIO followed through on their threat, pension fund management would be determined not by which firm has the best performance but also by who shares labor's political beliefs. The real losers would be the union's pension fund beneficiaries, who could be stuck with lousy pension fund management just because of their leadership's politics.

Lamb Tenderloins in Red Wine Sauce with Red Wine Mushroom Risotto and Carrots

Lamb Tenderloins

• 1 1/4-lb lamb tenderloins (I got mine from D'Artagnan in a 2 1/2 pound package, so I'll get two meals out of the package)
• 1 bottle Annie's organic oil and vinegar dressing
• salt and pepper

Marinate lamb tenderloins in dressing for 6-8 hours. Remove from marinade, rinse, and pat dry. Season with salt and pepper. On a preheated grill, cook tenderloins about 10 minutes, turning once. Remove to a cutting board (preferably one with channels to collect any juices that run off) and loosely tent with foil.

Sauce

• 1/4 cup chopped onion
• 1/4 cup chopped celery
• 1/4 cup chopped carrot
• 3 cloves garlic, halved
• 2 sprigs fresh thyme
• 1 cup red wine
• 1/2 cup chicken stock
• 1/4 cup 100% unsweetened cranberry juice
• 1/4 cup D'Artagnan duck-veal demi-glace
• 1 tablespoon cornstarch dissolved in 2 tablespoons cold water
• pat butter
• salt and pepper

Add oil to a preheated nonstick skillet. Swirl. Add vegetables and thyme. Lightly season with salt and pepper. Saute until onions just start to brown at the edges. Add red wine, stock, and cranberry juice. Bring to the boil, reduce to a steady simmer and allow to reduce to about 1 cup. Strain and transfer liquid to a small sauce pan. Discard vegetables. Add demi-glace and any juices that ran off from the lamb to sauce pan and reduce liquid until you again have one cup. Add cornstarch and bring to the boil. Cook 1 minute at the boil, stirring constantly. Remove from heat. Swirl in pat of butter. Taste and adjust seasoning as needed. Transfer to a plastic squeeze bottle.

Jazzed-Up Semi-Homemade Red Wine Mushroom Risotto

• 1 package Alessi Funghi Risotto
  
• 1 cup white wine
  
• 1 cup red wine
  
• 1 oz assorted dried wild mushrooms
  
• 1 tablespoon butter
  
• 1 tablespoon D'Artagnan black truffle butter

Pour white wine into a 2 cup glass measuring cup. Heat white wine for 2 minutes in microwave. Add mushrooms and allow to reconstitute for at least 20 minutes. Strain, reserving soaking liquid. Strain soaking liquid through unbleached coffee filter to remove any grit. Roughly chop mushrooms and transfer to your Cuisinart rice cooker. Add Alessi risotto mix, red wine, soaking liquid, and enough water to total 2 cups of liquid. Stir well. Add butter. Turn on cook cycle. When done, finish with truffle butter just before service.

Carrots

• 8 baby carrots, peeled
  
• 1/4 cup water
  
• 1 tablespoon butter
  
• lavender salt and white pepper
  
• 2 tablespoons lavender honey

Combine all ingredients in a small saute pan. Bring to the boil and reduce to a simmer. Cook 6 minutes, adding water if necessary as it cooks. Adjust seasoning to taste.

Service

Use a 1/3 cup measuring cup to serve risotto. By packing the risotto into the cup and then tapping it out on the plate, you get a nice mound effect. Top with Parmesan shavings. Cut lamb into bite-sized pieces and plate next to the risotto. Drizzle sauce over lamb and risotto. Plate carrots. Sprinkle all with very finely chopped Italian parsley.

I served it with a 1986 Chateau Sociando-Mallet, which was a great match (admittedly, lamb and a good red Bordeaux is the proverbial no brainer).

Hedge Funds

The W$J reports that Carl Icahn and two of his allies won election to Blockbuster's board of directors, with substantial support from hedge funds:

Mr. Icahn's victory starkly demonstrates the growing willingness of hedge funds to wield clout in corporate boardrooms. A number of the large, private investment pools rank among Blockbuster's biggest shareholders and were enthusiastic backers of Mr. Icahn. (Pay Link)

Are hedge funds the next big thing in corporate governance, solving the principal-agent problems inherent in that governance structure? Or will they fizzle out the way hostile takeovers and, to a lesser extent, institutional investor activism have?

My guess is the latter.

First, thus far hedge funds have been mainly followers. The high profile cases in which hedge funds have - or likely will - played a major role have mostly been cases in which there was an individual activist around whom the hedge funds rallied: Roy Disney and Stanley Gold at Disney, Icahn at Blockbuster, and, possibly coming down the pike, Kerkorian at GM. The leading recent case in which hedge funds tried to affect boardroom deliberations without a rallying figure was MCI, in which the hedge funds (thus far) failed to sway the MCI board from its preference for Verizon over Qwest. Given the constraints on shareholder activism in US corporate and securities law, it seems likely that hedge funds will be most successful in those limited number of cases in which there is a central coordinating figure driven by a private agenda.

Second, at least two of the above-referenced cases - Icahn at Blockbuster and Kerkorian at GM - look a lot more like 1980s-style greenmail raids rather than efforts to improve corporate governance long-term. Granted, there is a theory (most prominently advanced by law professors Jon Macey and Fred McChesney) that greenmail sometimes benefits not just the greenmailer but rather target company shareholders generally. The empirical data, however, as summarized by Gilson and Black (at 788) suggests that greenmail only does so where the greenmailer's raid is followed by a successful takeover of the target company by another acquirer. To the extent hedge funds are simply piggybacking on the efforts of greenmailers like Icahn and Kerkorian, they therefore are more likely to obtain private benefits through wealth transfers than to provide systemic benefits.

Third, much of the success of hedge funds has been attributed to the fact that they are lightly regulated. The WSJ report, for example, quotes a hedge fund manager who "said there is no doubt hedge funds are gaining power, in part because the lightly regulated funds are able to challenge companies without the restrictions that can encumber mutual funds and other institutional investors." The prospects for hedge fund activism are thus circumscribed in two ways. First, hedge funds in fact are subject to many of the constraints on shareholder activism that have helped prevent institutional investor activism from becoming much more than a thorn in management's side. Second, the SEC and Congress have already been flirting with efforts to regulate hedge funds. If hedge funds succeed at becoming something more than annoyance, one can expect the business lobby (such as the Business Roundtable, NAM, and the Chamber of Commerce) to provide critical support for such efforts.

In sum, the basic precept of corporate law and governance is separation of ownership and control. Hedge fund activism is unlikely to put them back together again. And, as Martha Stewart might say, that's a good thing.

Update: For additional commentary, check out Gordon Smith and Larry Ribstein. Also, for commentary on possible regulation of hedge funds, see Dale Oesterle.

Conason is Wrong. Again.

EJ Dionne observes, I think correctly:

The current acrimony in politics is incomprehensible unless it is understood as the inevitable next act of a long-term struggle.

But then he demonstrates a remarkably short memory:

... every one of today's fights can be seen as a response to something that happened in the 1990s.

Democrats in the Senate insist on their right to stop some of President Bush's judges because Republicans were so aggressive in stopping Clinton judges in the '90s.

Ever hear of a judge named Bork? Whose sufferings at the Democrats' hands made his name into a verb? There's fault aplenty on both sides in the current judicial confirmation mess, but it was the Dems who first turned it into a bloodsport and EJ knows it.

Previewing Purgatory

Once again, I'm using my Treo 650 to blog from the back row of a faculty meeting. I generally like my colleagues and the institution, but I must confess to finding our governance processes painfully interminable. I've referred before to the adage one of my colleagues coined: A faculty meeting isn't over when everything has been said, it is only over when everything has been said by everyone. The problem today is that we can't seem to get past stage 1, because a lot of people are on their second or third round of comments. My vision of purgatory is a meeting that never ends. So my one hope is that St. Peter will apply these earthly hours against my stint in Purgartory.

LAT Swipes Bush Social Security Reform

In a diatribe against Social Security reform thinly disguised as a news article, LA Times writer Peter Gosselin makes much of the fact that some Nobel economics laureates make plenty of lousy investment decisions. I'm still far from convinced personal Social Security accounts are a good idea (see, e.g., these doubts), but Gosselin's case against them is too bogus to go unchallenged.

Setting aside the rather interesting theory that an efficient capital market requires investors to be irrational, the article misses the point that investing is really rather simple. You park your money in no-load passively-managed index funds, weighted as heavily to equities as your risk tolerance can take, and then you get on with the rest of life. As Nobelist Clive Granger told Gosselin (not that Gosselin got the point): "I would rather spend my time enjoying my income than bothering about investments," which is exactly what passive investing allows you to do. If you need proof at length, be sure to check out the latest edition of Burton Malkiel's classic A Random Walk Down Wall Street.

By the by, Gosselin has tapped into (but not really understood) some of the learning on behavioral economics:

Analysts examining the actual behavior of individuals — as opposed to what most economists' theories predict — find that it rarely conforms to standard notions of what's rational. Instead, it often involves systematic mistakes that end up producing the very opposite of what people say they intend.

That's not exactly right, especially the adjective "rarely," but set that aside. As I wrote in a TCS column a while back, Richard Thaler, the leading exponent of the behavioral finance theories Gosselin invokes, has made a telling admission:

Mr. Thaler … concedes that most of his retirement assets are held in index funds, the very industry that Mr. Fama's research helped to launch. And despite his research on market inefficiencies, he also concedes that "it is not easy to beat the market, and most people don't." (Link)

So if personal accounts come down the pike, put your money in passively-managed no-load funds and forget about it. If the Democrats and their MSM allies like Gosselin manage to block personal accounts, put what little discretionary money Uncle Sam leaves you after taxes in passively-managed no-load funds and forget about it. In the long run, you'll come out ahead of the game with a lot less stress.

Update: Referring to this post, as well as others by Will Collier and Megan McArdle, BTD snarks:

They sound like they have it all figured out. I wonder why these people aren't money managers??

Well, for one thing, the whole point of this post is that I don't need to be a money manager and, indeed, I don't even need to hire an active money manager. The beauty of passively managed index funds is that I can safely leave my money at, say, Vanguard and not have to worry about managing it. Instead, I can go do fun things, like blogging and being a law professor.

Immigration

The WSJ($) weighs in:

So long as the U.S. shares a 2,000-mile border with a developing nation, we'll never reduce the illegal flow with punitive measures that ignore the market forces luring foreign workers here in the first place. The best way to decrease the number of illegal crossings, while also satisfying our economic needs, is to give immigrants more legal ways to come. Under the World War II-era bracero program, which allowed Mexican workers entry to meet the labor demands of American growers, illegal border crossings fell.

The U.S. border-enforcement budget has quintupled since 1993 -- one of the highest growth rates in the federal government after defense spending. Yet the illegal immigrant population in the U.S. has continued to increase. Readers may remember the days when conservatives criticized liberals for throwing money at policies that aren't working.

Exactly. The problem isn't the immigrants. The problem is the arcane and archaic laws that prevent us from having a sensible guest worker program. As I wrote for TCS a while back, it is time for Congress and the President to move forward with just such a program.

Roy Disney's lawsuit

Dissident Disney investors (and former Disney directors) Roy Disney and Stanley Gold have filed suit against, among others, Walt Disney Co., the Disney board of directors, outgoing CEO Michael Eisner, and incoming CEO Bob Iger. (See NY Times article.) Disney and Gold claim that Disney's board of directors misled investors about the succession process that led to Iger's selection. Specifically, the complaint (available from SaveDisney.com) alleges that had "Disney and Gold known that the Company and a majority of the Board did not intend to stand by their public statements about engaging in a bona fide CEO selection process, [Disney and Gold] would have run an alternate slate of directors at the 2005 annual stockholders meeting." As relief they seek invalidation of the 2005 board election and new board election.

I would be very surprised if Disney and Gold received the relief they're seeking. Their fraud claim seems pretty weak - anybody who had been following events at Disney knew Iger was the frontrunner to succeed Eisner. Indeed, as I reported in September 2004, Disney and Gold were already complaining all the way back then about the prospect that Iger would succeed Eisner. The notion that the board somehow juked them out of their socks when it came time to put up or shut up is just ludicrous. (Gordon Smith seems to agree, while Larry Ribstein seems inclined to give Disney and Gold the benefit of the doubt.)

Update: With respect to the foregoing, Larry replies:

I don’t see the logic of that argument against the suit.  Doesn’t it show why Disney and Gold thought it important that the board promised an open search?

Count I of the Disney-Gold complaint sounds in fiduciary duty, but is actually a nondisclosure claim. Count II of their complaint is explicitly grounded in fraud. I don't think they'll be able to prove they reasonably relied on the purported Disney board statements. How can they reasonably claim to have been defrauded when they were complaining all along about the prospect of Iger being selected?

Setting aside the merits of their claim, it's worth noting that the relief they're seeking is highly extraordinary. In public corporations, Delaware courts rarely grant equitable retrospective relief of this sort. Damages for fraud and/or breach of fiduciary duty would be far more typical.

A minor point: Larry notes that:

...  it’s not clear Disney and Gold would have no claim even if they clearly wouldn’t have run an alternative slate – the shareholders might well have just voted down the incumbent slate, as they almost did before.

The problem with this argument is that Disney followed (and I believe still does so) the statutory default under which directors are elected by a mere plurality. As I've explained before, the shareholders' option to withhold authority to vote for certain candidates does not empower them to vote against those candidates. In the absence of a competing slate, a single vote for Eisner (say) would suffice for him to be elected to the board even if all the other shareholder withheld their votes from him. So I disagree that Disney and Gold have a claim absent a showing that they would have run a competing slate.

Finally, Christine Hurt uses the Disney suit to pose the following rhetorical question:

If we structure corporate law around many assumptions, including one that shareholders will monitor the board, then why are we so annoyed by large shareholders that actually do monitor?

The answer, of course, is that we do not "structure corporate law" around the assumption that shareholders will effectively monitor the board. Or, at least, I don't. As I observed in a lengthy post back in May of 2004:

Shareholders do not own the corporation. Instead, they are merely one of many corporate constituencies bound together by a complex web of explicit and implicit contracts. In this model, the directors thus are not agents of the shareholders subject to the control of the shareholders. To be sure, shareholders elect the board and exercise certain other control rights through the franchise. Yet, shareholder voting is not an integral part of the corporate decisionmaking apparatus. Although corporate law grants shareholders exclusive electoral rights, those rights are quite limited. Instead, shareholder voting is merely one accountability mechanism among many--and one to be used sparingly at that. Put another way, the board of directors functions as a sort of Platonic guardian--a sui generis body that serves as the nexus for the various contracts making up the corporation. The board's powers flow from that set of contracts in its totality and not just from shareholders. ...

The board's primacy has a compelling economic justification. The separation of ownership and control mandated by corporate law is a highly efficient solution to the decisionmaking problems faced by large corporations. Recall that because collective decisionmaking is impracticable in such firms, they are characterized by authority‑based decisionmaking structures in which a central agency (the board) is empowered to make decisions binding on the firm as a whole.

To be sure, this separation of "ownership" and control results in agency costs. Those costs, however, are the inevitable consequence of vesting discretion in someone other than the residual claimant. We could substantially reduce, if not eliminate, agency costs by eliminating discretion; that we do not do so confirms that discretion has substantial virtues. Given those virtues, one ought not lightly interfere with management or the board's decisionmaking authority in the name of accountability. Preservation of managerial discretion should always be the null hypothesis.

This line of argument explains much of corporate law. It is the principle behind such diverse doctrines as the business judgment rule, the limits on shareholder derivative litigation, the limits on shareholder voting rights, and the board's power to resist unsolicited corporate takeovers.

For a more detailed but relatively concise treatment of the issues, see my article Director v. Shareholder Primacy in the Convergence Debate

V-E Day and Just War

The V-E Day celebrations this week have largely spared us the "greatest generation" meme. Instead, perhaps because the main celebration is taking place in Russia, we have had an opportunity to reflect on that generation's serious moral failings. Niall Ferguson calls it a "soiled victory" - and he's got a point.

Ferguson observes:

We forget all too easily the extent to which our side also meted out death to innocent men, women and children in pursuit of victory. We forget the terrible moral compromises that were the price of winning the war.

Ferguson calls attention to two particular compromises that taint the Allied victory; first, siding with the devil himself in the pursuit of victory:

Most historians today would give the lion's share of the credit for the Allied victory to the Soviet Union. It was, after all, the Soviets who suffered the largest number of wartime casualties (about 25 million). That reflected in large measure the appalling barbarity with which the Germans waged the war on the Eastern Front. Yet it also reflected the indifference of Stalin's totalitarian regime to the lives and rights of its own citizens. It might have been expected that in the crisis of war, Stalin would suspend the terror that had characterized his regime in the 1930s. On the contrary. The lowest estimates for the period (1942-1945) indicate that 7 million Soviet citizens lost their lives via political executions, deportations or death in the gulag system. All of this reminds us that to defeat an enemy they routinely denounced as barbaric, the Western powers made common cause with an ally that was morally little better.

Hitler had to be beaten, of course. But it's well worth remembering - as President Bush did this week in Latvia - that the price paid by the US and the UK was condemning Eastern Europe to 50+ years of Soviet tyranny. Not to mention losing China to the Maoists.

Ferguson then turns to the great moral failure of "strategic bombing":

... the destruction caused by the British and American air forces in their bombing campaigns against civilian populations in Germany and Japan is hardly something we can look back on with pride. Hamburg was destroyed in a firestorm code-named Operation Gomorrah; about 45,000 people died. Similar numbers perished when Dresden was bombed. Tokyo was literally incinerated in a raid that killed between 83,000 and 100,000 people — maybe more.

Such bombing was precisely what the U.S. State Department had denounced as "unwarranted and contrary to principles of law and humanity" in 1937, when the Japanese bombed Chinese cities. And it was precisely what Neville Chamberlain, Winston Churchill's predecessor as prime minister, had dismissed as "mere terrorism," to which "His Majesty's government [would] never resort."

As those refernces suggest, the greatest generation had doubts about the morality of the strategic bombing campaign even in the midst of the war. The British denied Bomber Harris a peerage in 1946 (although they did offer him one in 1951, which he refused), even though they gave peerages to virtually all of the UK's other major World War II commanders at that time. Bomber Command did not get a separate campaign medal. And so on.

Indeed, there seems little doubt but that the strategic bombing campaign violated the precepts of a just war. In particular, it violated the tenets of proportionality and discrimination. Proportionality holds that the response to aggression should not be disproportionate to the original aggression. Was the deliberate firebombing of Dresden or Hamburg, say, proportional to the Blitz? As for discrimination, there is no doubt that Bomber Harris and his US counterparts deliberately targeted German and Japanese citizens.

Of course, I would echo Ferguson's conclusion:

None of this is intended to detract from the valor of the millions of Allied service personnel who lost or risked their lives in World War II. Nor is it to deny that the war had to be fought to rid the world of two of the most evil empires in all history. There is a moral difference between Auschwitz and Hiroshima. The Axis cities would never have been bombed if the Axis powers had not launched their war of aggression. And the Axis powers would have killed even more innocent people had it not been for the determination of the Allied powers to prevail.

Yet, two wrongs do not make a right. Even a just war must be fought justly. And we do the so-called greatest generation no service if we ignore their serious moral failings in this regard. The West, after all, is supposed to be the good guys.

Update: Sometime later I ran across some very interesting work on the ethics of strategic bombing, including this very provocative essay by Air Force Peter Farber, who argues: "there is no single, coherent just-war position. Rather, there are clusters of ideas that have waxed and waned through time, and they have not evolved into a transhistorical system of simple moral rules." I then had some fun playing around with this very serious topic using an episode from Star Wars IV.

The Constitution in Exile

Cass Sunstein ( a U. Chicago legal academic for whom I otherwise have a lot of respect) has been peddling nonsense about conservatives trying to resurrect something called the " Constitution in Exile." (You've doubtless seen Sunstein's recent debate with Randy Barnett over the term and its alleged content; if not, it's a must read.)

Dick Polman spelled my name wrong but otherwise nailed my thoughts on the issue in a recent news article:

University of Chicago law professor Cass Sunstein contended the other day that the phrase reflects "a partisan movement masquerading as law." And George Washington University law professor Jeffrey Rosen said, "These ideas are serious, they have consequences, and the consequences are radical."

Conservatives insist that the propagation of the phrase is just a liberal trick to make them look bad. Steven Bainbridge, a business law professor at the University of California, Los Angeles, barely concealed his pique in an e-mail the other day: "The Constitution in Exile buzz is being generated by liberal academics who basically want to paint [us] as Neanderthals who want to turn back the clock...

"It's the legal equivalent of the theocracy scare being drummed up in the liberal media. Both are designed to delegitimate having any debate over the proper size and role of the federal government. It's dishonest and cheap."

V-E Day and Just War

The V-E Day celebrations this week have largely spared us the "greatest generation" meme. Instead, perhaps because the main celebration is taking place in Russia, we have had an opportunity to reflect on that generation's serious moral failings. Niall Ferguson calls it a "soiled victory" - and he's got a point.

Ferguson observes:

We forget all too easily the extent to which our side also meted out death to innocent men, women and children in pursuit of victory. We forget the terrible moral compromises that were the price of winning the war.

Ferguson calls attention to two particular compromises that taint the Allied victory; first, siding with the devil himself in the pursuit of victory:

Most historians today would give the lion's share of the credit for the Allied victory to the Soviet Union. It was, after all, the Soviets who suffered the largest number of wartime casualties (about 25 million). That reflected in large measure the appalling barbarity with which the Germans waged the war on the Eastern Front. Yet it also reflected the indifference of Stalin's totalitarian regime to the lives and rights of its own citizens. It might have been expected that in the crisis of war, Stalin would suspend the terror that had characterized his regime in the 1930s. On the contrary. The lowest estimates for the period (1942-1945) indicate that 7 million Soviet citizens lost their lives via political executions, deportations or death in the gulag system. All of this reminds us that to defeat an enemy they routinely denounced as barbaric, the Western powers made common cause with an ally that was morally little better.

Hitler had to be beaten, of course. But it's well worth remembering - as President Bush did this week in Latvia - that the price paid by the US and the UK was condemning Eastern Europe to 50+ years of Soviet tyranny. Not to mention losing China to the Maoists.

Ferguson then turns to the great moral failure of "strategic bombing":

... the destruction caused by the British and American air forces in their bombing campaigns against civilian populations in Germany and Japan is hardly something we can look back on with pride. Hamburg was destroyed in a firestorm code-named Operation Gomorrah; about 45,000 people died. Similar numbers perished when Dresden was bombed. Tokyo was literally incinerated in a raid that killed between 83,000 and 100,000 people — maybe more.

Such bombing was precisely what the U.S. State Department had denounced as "unwarranted and contrary to principles of law and humanity" in 1937, when the Japanese bombed Chinese cities. And it was precisely what Neville Chamberlain, Winston Churchill's predecessor as prime minister, had dismissed as "mere terrorism," to which "His Majesty's government [would] never resort."

As those refernces suggest, the greatest generation had doubts about the morality of the strategic bombing campaign even in the midst of the war. The British denied Bomber Harris a peerage in 1946 (although they did offer him one in 1951, which he refused), even though they gave peerages to virtually all of the UK's other major World War II commanders at that time. Bomber Command did not get a separate campaign medal. And so on.

Indeed, there seems little doubt but that the strategic bombing campaign violated the precepts of a just war. In particular, it violated the tenets of proportionality and discrimination. Proportionality holds that the response to aggression should not be disproportionate to the original aggression. Was the deliberate firebombing of Dresden or Hamburg, say, proportional to the Blitz? As for discrimination, there is no doubt that Bomber Harris and his US counterparts deliberately targeted German and Japanese citizens.

Of course, I would echo Ferguson's conclusion:

None of this is intended to detract from the valor of the millions of Allied service personnel who lost or risked their lives in World War II. Nor is it to deny that the war had to be fought to rid the world of two of the most evil empires in all history. There is a moral difference between Auschwitz and Hiroshima. The Axis cities would never have been bombed if the Axis powers had not launched their war of aggression. And the Axis powers would have killed even more innocent people had it not been for the determination of the Allied powers to prevail.

Yet, two wrongs do not make a right. Even a just war must be fought justly. And we do the so-called greatest generation no service if we ignore their serious moral failings in this regard. The West, after all, is supposed to be the good guys.

RIP

Washington legal/politico maven Lloyd Cutler has passed away. I had the privilege of having him slosh a martini on me at the 1985 Virginia Journal of International Law banquet and thereafter writing the footnotes for his published speech - Cutler, Some Reflections on the Adjudication of the Iranian and Nicaraguan Cases, 25 Va J. Int'l L. 437 (1985) - which unfortunately doesn't seem to be available online. As an after-dinner speaker, he impressed equally for his considerable intellect, substantial capacity, and prolixity.