WAPO ON THE BIG BOX

Yesterday, editorialists at WaPo critcized Montgomery County (MD) executive Douglas Duncan for proposing a tougher zoning ordinance "for stores larger than 120,000 square feet that devote at least 10 percent of their floor space to groceries." Here's WaPo:

It's not a coincidence that this narrow definition covers huge nonunionized grocery-selling stores such as Wal-Mart's supercenters, SuperTarget and Wegmans, all potential competitors with the unionized Giant and Safeway supermarkets, which fall under the 120,000-square-foot limit. . . .

Concern about the effect of big new stores on surrounding communities is legitimate, but local planning decisions should be based on sound, uniform principles, not on arbitrary criteria targeting specific disfavored companies. . . .If there is concern over Wal-Mart's labor practices, its employees have the right to unionize; if there is concern over stingy health care packages, workers should target that issue directly. County government should not misuse its considerable planning powers to punish certain companies or reward others.

Most zoning decisions can be described as "punish[ing] certain companies or reward[ing] others." It's not clear to me why unionized workers shouldn't attempt to do what business groups do all the time: ask local authorities to pursue policies that are favorable to them.

SOUND FAMILIAR?

From Murray Edelman, Constructing the Political Spectacle:

Those who favor a particular course of governmental action are likely to cast about for a widely feared problem to which to attach it in order to maximize its support. This process is not necessarily self-conscious or deceptive. Those who recognize that the attachment of a favored course of action to a problem will get them what they want can easily persuade themselves of the rationality and morality of their rhetorical appeals as part of the process of persuading others. (22, footnote omitted)

IITYWYBAD?

Just FYI: The Grapes of Wrath is a fine book, but it's not the best book to be reading while you're looking for a job.

EUROPEAN REACTIONS TO YESTERDAY'S (MODEST) DOCUMENT DUMP

Most of the European papers weren't satisfied with the documents that the White House released yesterday.

The headline in Berlin's Der Tagesspiegel is "Rumsfeld approved brutal methods," and an opinion piece with the title "Betrayal of its own values" begins thus: "The bad conscience in Washington is palpable." In his commentary in the Sueddeutsche Zeitung ("Bush and Torture"), Stefan Kornelius writes that the documents show that the administration -- including the President -- engaged in "detailed" discussion of interrogation methods, and that Rumsfeld "ordered methods that were similar to torture" (folterähnliche Methoden). The papers "show that a grey zone could be created while the administration watched, a zone within which torture was possible." The Frankfurter Rundschau carries the headline, "Bush relativizes human rights."

Few European papers seem willing to accept at face value the administration's attempts to highlight the "humane" nature of U.S. treatment of detainees. This is probably due to European emphasis on the binding nature of international commitments, something that the Bush administration has done its best to reject, openly and forcefully, over the past three and a third years. Just looking at the headlines, it is striking to me that the U.S. media seems willing to give the Bush administration the benefit of the doubt, or at least to play up the self-limiting aspects of the administration's positions as revealed in the documents. The headline in the SF Chronicle is "President rejected torture of prisoners," and Fox News also repeats Bush's denials on the torture front. Some news outlets in the U.S. are more critical, to be sure, but in Europe the spectrum of opinion, as reflected in major newspaper coverage, seems to go from critical to very critical.

For more foreign coverage, check out Libération (here), Le Monde (here), Spain's El Mundo (here), and Austria's Der Standard (here) . The last piece, titled "Bush's counteroffensive," is especially biting.

For links to the docs themselves, see WaPo, here.

KAXIL KIUIC

Check it out, here. I came across this while trying to find out what Prof. George Bey is up to nowadays -- two connections: Chris Lawrence is heading down to Millsaps, where Bey teaches, and I spent two months in 1994 working with George Bey and Bill Ringle as a field assistant at their site in the 1990s, Ek Balam, on the Yucatan peninsula between Cancun and Merida.

WHAT LAWYERS KNOW, AND WHAT THE PUBLIC SHOULD IGNORE

Just wondering: imagine if judges in interwar Italy were subject to something like the constraints of the current Code of Conduct, which limits judicial speech endorsing or opposing particular candidates. And then imagine that a judge said, "Mussolini's rise to power is a threat to the democratic system and must be opposed by citizens who care about constitutional constraints on politicians."

Should we (non-lawyers, that is) care if that judge could reasonably be described as violating a rule of judicial ethics? Seems to me that we should care under two conditions: 1) if we thought that the judge's response was a threat to the judiciary, and / or 2) if we thought his analysis was simply wrong. But if we thought that his analysis was basically persuasive, or even if we thought that the risks that he might be right outweigh the risks associated with option 1) (increased politicization of the judiciary), then we might not care so much about the Code of Conduct question.

My hypothetical is a bit silly, to be sure. Our responses to it are conditioned by our knowledge of what Italian fascism was. (And I do not mean to say that my hypothetical is close to what Judge Calabresi said recently; I wasn't there, and I'll wait for the transcript to make my judgment.) But I would be extraordinarily surprised if throughout American history there weren't judges who expressed worry - in public -- about the health of our constitutional order and linked that worry to processes connected with particular candidates. Seems to me that on balance it's a good thing for judges to do that when they feel so moved. Sometimes they might be right.

This is not to say that lawyers shouldn't have a debate about the Code of Conduct question. As Charles Fried argued in an interesting article on the "artificial reason of the law," the law can be viewed as a specialized discipline that connects broader philosophic views with certain facts on the ground. It shouldn't be surprising that the specialized discipline can sometimes seem at cross-purposes with the broader philosophic views, including questions concerning political theory (in this case, encompassing the intersection of politics and constitutionalism). The law is not a perfect mediator (good, then, that it is not the only mediator!). Here, the Code of Conduct question should only be interesting to lawyers and those who study them. The important questions lie elsewhere.