Still No Structure Here

Still more miscellaneous observations—

• Startlingly, there's an article of some value on the irrationality of the publishing industry in Poets' & Writers' Magazine.¹ Of course, it isn't exactly news, either; an author's exploitability via public appearances has been a critical factor in acquisition of self-help books for quite some time.
• Amusingly, this blawg has been cited in a law review article. Once one gets past the initial surprise, the particular point was not surprising: My reminders that publishers don't universally control all of the rights demanded by Amazon's Search Inside the Book program. The article itself appears in the Stanford Technology Law Review (PDF); I found out about it via 3L Epiphany's useful Law Review Articles Citing Legal Blogs (includes link to actual list). What I find interesting about the particular citation is that I pulled my punches in the cited blawg entry. It's not just that publisher's sometimes don't have the necessary rights; it's that they usually don't have the necessary rights, and that those publishers/distributors with little claim on those rights have tended to be more aggressive in asserting that claim, both in October 2003 and today.
• Ridiculous. Sublime. And maybe just plain weird. Stephen Colbert first took on absolutely nothing on his green screen; now he takes on the "Star Wars kid," bears, and other "space monsters." Unfortunately, someone has hacked the purported "official" site to collect all of these videos in one place; the best place to begin seems to be giving the "Star Wars kid" what he so richly deserves.
• Denise Howell's new blawg Lawgarithms looks promising, and would be more so without all of ZDNet's annoying Flash-animated ads.
• Phil Carter's group blawg Intel Dump has hosted several thoughtful posts on Middle East strategy of late, including good cop/non cop, Cassandra's self-examination, and an interesting take on (not) amending the War Crimes Act.
• Last, and not least, there's the entire Watada screwup. It's screwed up all around. To begin with, Watada is himself guilty of at least two UCMJ offenses (Article 92, failure to obey an order, and Article 133, conduct unbecoming an officer) for failing to deploy to Iraq when ordered to do so. Here's the problem: A deployment order is not, and cannot by itself, be unlawful when it is offered in support of the ill-considered—but still lawful—Authorization for Use of Military Force. That said, the military grievously overreacted by making this a court-martial situation. The Seattle Times seems to have the firmest grasp of the situation, which shouldn't be all that surprising as Watada was stationed less than 60km from Seattle. I have a great deal of sympathy for the politics informing Lt Watada's decision, but much less so for the decision itself. Officers don't refuse deployment orders. They may refuse orders to go destroy a complex of villages thought to harbor insurgents… but there is nothing inherently unlawful in a deployment of this nature.

  This reminds me of the ultimate problem with too many Fourth Amendment cases. As Professor Lafave remarked on the first day of Criminal Procedure, one needs to remember that the vast majority of cases involving the Fourth Amendment concern substantively guilty defendants. Sometimes the prosecution is selective; more rarely, they are not substantively guilty; but that makes things much more difficult litigation-wise. Imagine for a moment that Dolly Mapp's crime had been not possession of obscene material, but possession of a large arsenal of automatic weapons and explosives, combined with membership in a militia group. Is it just barely possible that the Supreme Court would have been more reluctant to extend the Fourth Amendment to the states on those facts?

  Besides which, there are a lot of other things that an officer—and particularly a junior officer—can and should do to resist unlawfulness in Iraq that one cannot do from inside the brig.

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1. It's startling because the magazine is typically over half filled with ads, and almost all of the articles are either "inspire the writer" or "this is how semicelebrity author x works" in nature. That this is akin to feeding the bears at a park should be pretty obvious.