Linkage

Paleo Retiree writes:

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Notes on “The Last of the Mohicans”

Fabrizio del Wrongo writes:

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This 1936 adaptation of James Fenimore Cooper’s frontier classic was directed by George B. Seitz, a veteran of the silent serials, and in its simplicity and rat-a-tat pacing it’s likely to appeal most to young boys and unapologetic philistines. Judged on its own terms — the terms of the B adventure film — the movie is quite successful. The characterizations are pithy and colorful, and the editorial sharpness and graphic intensity of the big action set-pieces redeem their basic modesty. (Here Seitz, or perhaps his technicians, seems to draw inspiration from the Soviets.) As Hawkeye, the rifle-bearing woodsman whose sympathies are more Indian than white, Randolph Scott projects a courtliness that shines through his rustic accoutrements; no one has ever looked so gallant with a dead raccoon on his head. Though in adapting the novel Seitz and screenwriter Philip Dunne emphasize its movement and incident over its romanticism, it’s clear that filmmaker Michael Mann’s 1992 take on the material — a romantic juggernaut — is based largely on their example; several of the later film’s best lines and moments are lifted directly from its ‘30s predecessor. Despite the movie’s pleasures, the love story is weak, and it’s more than a little disappointing that it ends with Hawkeye — that embodiment of American self-reliance — enlisting happily in the British Army. Seitz has the good sense to end the picture before he trades his buckskins for a redcoat.

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What is “Really Going On”? And What is “Conspiratorial Nonsense”?

Fenster writes:

Glenn Greenwald says that it was not only the Russians that interfered with the presidential election.  The FBI and the CIA were probably in there, too.

CNN’s Michael Smerconish asked Greenwald whether he gave “any credence to the conspiracy theory” that the CIA, along with the Russians, had attempted to manipulate the results of the election, and the journalist replied simply that it “was probably both.”  And he asserted the FBI had also played a part.
“I also think the FBI clearly sided with Donald Trump and did a lot of damaging leaks on purpose to hurt Hillary Clinton,” he added, an apparent reference to the bureau’s handling of the investigation into Clinton’s email.Greenwald went on to sum up the 2016 election as “a proxy war … for unseen forces.” He said he hoped for a “real investigation” into what happened, “where the evidence is publicly disclosed so that we can stop playing these games with anonymous leaks by people with unseen agendas trying to manipulate public opinion.” Doing so, he argued, is the only way to distinguish between “what’s actually true” and what’s “conspiratorial nonsense.”

Greenwald appears credible to me, in part because he comes across as willing to say and do things that will gore oxen when they need to be gored, as opposed to most of the press both left and right that come across as bought and paid for spinmeisters.

The notion of a struggle between powerful forces, whether or not you choose to call it Deep State, was around a lot during the election and then too I found the stories credible.

Of course as Greenwald suggests it is very very difficult for any amateur newsreader, no matter how busy at the task, to distinguish between what’s actually true and conspiratorial nonsense.  The recent Wikileaks disclosures don’t help matters as they suggest the CIA has the ability to leave the fingerprints of others behind where it has been.  That technical ability, combined with a professional inclination to produce disinformation, means that it if fiendishly hard to figure out who is actually doing what.  I have taken to watch the news more to look for what is not said–the “dog that didn’t bark”, as Sherlock Holmes put it–than I watch it in the hope of being told all the news that’s fit to print.

Alex Gibney’s document on Stuxnet, Zero Days, is worth a watch.  People against the CIA want to paint it as a devil and people in support want to paint it as an angel.  The truth is probably more complicated.  The picture that emerges in Zero Days suggests that the US is in a similar place is it was after WW2, when it held the nuclear reins.  We wanted to be the sole power with the bomb since we could then impose a Pax Americana.  But that proved impossible and so we had to engage in a long term, imperfect, messy but essential job: creating some sort of reasonable international rules on nuclear technology to avoid a Wild West.

Zero Days suggests we are in a similar place now with toxic technology.  We’d like to be the Lord of such things.  But we are not.  In fact, the situation is even more difficult than with nuclear technology.  There, the barriers were entry were high: qualified scientific talent, access to uranium, development of centrifuges and all the other mechanical aspects.  By contrast our newly developed weapons are just computer code.  And the process of using them involves letting them loose in the wild so that they can find their way to a target.  Assange indicated that he didn’t get the material he released from the CIA directly but from a source that picked it up in the growing secondary market for these things.  So-called greyhats are out there picking this stuff up and potentially selling them to the highest bidder.

So we are potentially entering a new and dangerous world, with the powers-that-be fundamentally unaccountable and probably convinced that they need to maintain control, which was our default view on nuclear at the start of the cold war.  All the more reason, as Greenwald suggests, to open the beast up for dissection and take a long hard look.

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What the President of Middlebury Did Not Say

Fenster writes:

Charles Murray was properly incensed over the egregious actions of those protesting his recent appearance at Middlebury College.  At the same time he was gracious and generous as regards the way the Administration handled the event.

In truth there is a lot to be said for how the Administration handled the whole affair.  That they allowed it to happen at all and that they agreed to structure it as an open discussion with what appears to be a reasonable (though critical) interlocutor are good things .  The Administration  warned the students about the implications of disruption.  It had a back-up plan for livestreaming that was put into place effectively.  Laurie Patton, the president, made a point of emphasizing free speech concerns in her statements at and after the event.

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Architecture and Color

Paleo Retiree writes:

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Possible Good News on Civil Asset Forfeiture

Fenster writes:

Fenster is highly suspicious of the practice of civil asset forfeiture, and wrote of the issue here.

You may know that the law often allows police or other authorities to keep the ill-gotten gains from a criminal transaction.  That’s bad enough as far as creating a financial incentive.  But the moral hazard is serious enough that police often take assets when no criminal action has been shown to have occurred, or if the owner of the asset was not aware of the crime.  Spending sprees are known to result as well.

As I read more about this practice I came across the legal distinction that supports forfeiture.  Typically, when the state proceeds against a defendant in a criminal law setting it does do “in personam“–that is, against the actual person.  It is this proceeding against an actual person that in turn gives rise to the full range of criminal procedure protections such as a right to a jury trial and heightened standards of evidence.

But the legal theory underpinning asset forfeiture is not “in personam” but rather “in rem”–that is, against “the thing” itself.  As Justice Thomas wrote in a recent Supreme Court opinion we will get to below, the use of “in rem” for forfeiture has a long history in American law, with early statutes “permitt(ing) the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime.”

Lawyers are permitted to concoct any number or counterintuitive and indeed absurd devices, and sometimes they will even make sense, or be proven to be useful in pragmatic terms (more on which below).  But I must confess I was stumped when I got here.  A person is pulled over in a routine traffic stop and is found to have several hundred thousand dollars in cash in the car.  The police do not like the explanation, conclude it is ill-gotten in some manner such as a drug transaction, and seize the money without benefit of trial, conviction or criminal standards of evidence.  And this is to be deemed somehow reasonable on the grounds that the cash is guilty of a crime?

Oyez, oyez now comes Justice Thomas writing in Lisa Olivia Leonard v. Texas.  The facts of the case are similar to the ones sketched out above.  It is a one-justice opinion in which Thomas declines to hear the case.  But he uses the opportunity to send a clear shot across the bow of the legal theory justifying forfeiture.

He starts by acknowledging that the use of civil “in rem” proceedings instead of criminal “in personam” proceedings has a long history in the United States.  Forfeiture arose in the context of customs violations and piracy, with the “offending” vessels being seized without the need for the full range of procedural protections.   Thomas quotes from an earlier case dealing with the historical context:

One unaware of the history of forfeiture laws and 200 years of this Court’s precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process.

But rather than endorse the idea that this historical context supports current practice Thomas goes the other way:

I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice . . .

 . . . and he takes this view for two reasons.

First, he argues that historical practice and law were substantially narrower than current practice and law.  Cases arose out of customs and piracy matters.  The actual “in personam” person was often overseas and out of reach of the criminal system and so the offending thing was taken “in rem” under a preponderance of evidence standard.  And the assets seized were limited to the instrumentalities of the crime (i.e., the vessel) and did not include criminal proceeds.  The taking of criminal proceeds, or what is held to be such proceeds in the absence of procedural safeguards, is a modern invention.

Second, Thomas argues that there is more than a thread of early legal thinking that clearly recognized that standing behind some of the legal fiction of civil “in rem” proceedings stood a recognition that criminal matters were being addressed.   It is as though a legal fiction was permitted for practical reasons but that there was still an underlying awareness that taking something from a person is still taking something from a person, and that criminal issues lurked near the surface.

Thomas quotes approvingly from another recent case:

Ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture.

Thomas turned down a review of the case, citing the fact that the petitioner Leonard only introduced a due process argument for the first time in its brief to the Supreme Court, and not in the Texas Court of Appeals case he was reviewing.  Still, it is an encouraging sign that at least one member of the Supreme Court is willing to tackle this important problem.

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Naked Lady of the Week: Chynna

Fabrizio del Wrongo writes:

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I recently came across a photo of this week’s naked lady while exploring an old hard drive. I thought, “Oh, I remember her.” Some Googling revealed that she’s gone by a number of aliases and hasn’t modeled for quite some time. A commenter on the FreeOnes board had this to say about her:

I do recognize her from my pre-Internet, porno magazine days. Like many of the women from those days, her identity changed depending on the particular publication she appeared in, but she was in a lot of them. I never did find out what, if any, regular names she used, but I’d say she was most active from around 1998 to 2000, give or take.

Whoever she is, her fresh-faced healthiness made enough of an impression to cause me to save some of her photos for over 15 years. I remember thinking that the dolphin tattoo above her navel was exotic and racy. Today it looks rather prosaic.

There’s something either Middle American or mid-century Californian about her — something anodyne, wholesome, and cheery. Maybe that’s why the photo set showing her dressed as a cheerleader is so ubiquitous. While searching for information on her I must have come across those photos in a dozen different combinations of format and resolution. Can’t blame a girl for finding her niche and exploiting it.

Nudity below. Enjoy the weekend.

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