Once one gets past the lurid title and slightly condescending rhetoric born of "innate British superiority," the column in today's Guardian by Will Hutton on the Hollinger International controversy—which, given who that company controls in this country, should be of more than passing interest to serious nonfiction authors—provides some interesting perspective.

Companies were originally invented as a group of companions sharing risks in order to discharge a vital economic and social function from which they maximised profits. They would petition the crown for a licence to trade, promise that their intent and vocation was to do X and accept reciprocal obligations in return. The company thus accepted that society imposed obligations along with the right to trade and placed that above the quest for profits. For example, the East India Company in 1600 was granted a licence to trade with the proviso that it carried its cargoes in English vessels and paid duties to the crown. It then set out to maximise profits for its shareholders. It built a great business around a central vocation, accepted reciprocal obligations, and additionally made a lot of money.

This classic conception of the company, at the heart of Anglo Saxon capitalism at its best, has been wrecked by the pernicious notion, incubated by the American Right, that a company is no more than a network of contracts that maximises returns for its shareholders. The idea that it should have an organisational purpose, earn a licence to trade or accept obligations to the society of which it is part is "socialist." Yet a capitalism run along these allegedly purist principles soon loses its bearings and its companies degenerate. At their worst, like Black's Hollinger or Enron and WorldCom, they collapse under the weight of individual greed.

A company that owns newspapers thus has a choice. It can treat its assets as just another commodity to be bought, sold and sweated to enrich the shareholders. Or it can accept that it has a vocation to build and sustain the very precious thing that is a newspaper with all the obligations that implies — to readers, to journalists and to what the newspaper stands for — from which it will then aim to maximise profits. In this conception profitability results from being a great newspaper company, and it is that to which the company should be consecrated.

"Black Day for Capitalists" (29 Feb 04) (emphasis added).

Hutton's article never quite comes to grips with the underlying problem. Hutton's rhetoric is aimed squarely at what he calls "shareholder maximisation" as a target, but he left out a critical qualifier: "short-term." The real difficulty with the rules as they stand now is that they actually do recognize the difficulty of predicting the future! They have gone too far the other direction, by relying upon current and immediately past stock prices in a positive-feedback loop. Perhaps the most obvious example of this is the business-school method of using the beta statistic, which measures relative variability of return, as a proxy for "risk" when it is nothing of the kind. But the disjunctures between reality and theory are far deeper even than that. The tyranny of the quarterly report is only a symptom of other problems, most particularly the assumption that immediate gratification is the only thing that is in investors' best interests.

More Questions of Character

Paul Myers, over at Pharyngula, offers an interesting perspective on the purported "left-wing bias" in university faculty. He concludes that

The reason that you won't find many Republicans in biology classrooms is that this current crop [of Republicans] has successfully alienated anyone who knows anything about the subject. It's really that simple. And short of fielding Republican candidates who actually support preserving and studying the biological world, you aren't going to find a majority of biologists voting Republican.

"This Is Never Going to End… But Once More Into the Breach" (22 Feb 04). As someone with a foot in all four academic regions—an AB in chemistry for the Natural Sciences, an AB (and a whole lot more) in English for the Humanities, a JD for the Social Sciences, and a minor in CS and substantial professional experience for Applied Technology (aka Engineering)—I think there is a more fundamental reason that universities will, as a population, always seem more "liberal" than perhaps society as a whole.

By definition, universities and their faculty are devoted to the advance of knowledge. This certainly includes providing a base of existing knowledge to students, and studying that existing knowledge itself for further insights; but it is not limited to intensive navel-gazing in the modern university (cf., e.g., Jonathan Swift, "The Battle of the Books"). By its nature, this selects a population—not all individuals by any means; just as with evolution, these factors don't operate to transform individuals, but to transform population characteristics over time—that shares three general traits.

1. Devotion to evidence over doctrine. Although this is obviously true in the Natural Sciences (at least since the formal development of the scientific method) and in Applied Technology, it is also true for the other two regions. The key is what we mean by "evidence." In the Social Sciences—at least outside of economics—the current trend is to based theories upon intensive statistical analysis of populations. The "dismal science" still lags behind, because undergraduates learn exactly the gross national product of Upper Lower Slobbovia about evidence; but that is starting to change as "behavioral economics" begins to get a foothold in the undergraduate curriculum. In the Humanities, the problem is that what scholars consider "evidence" is not what laypeople tend to think of as "evidence." Nonetheless, the mindset is there. Almost by definition, and certainly by inclination, political conservatism tends to value doctrine over individual circumstances.
2. Recognition of outliers as legitimate. Conservatism, by its nature, deemphasizes individualismus for "social stability." (This is really a chicken-and-egg problem; walls can be undermined by insufficient attention to the quality of the bricks as easily as insufficient attention to how they interlock.) On the other hand, almost all academic work involves either inductive or deductive consideration of instances that are at the margin of present knowledge. Both the development of quantum physics and the development of postmodern approaches to literature stem from precisely such inquiries. In academic life, one cannot dismiss an outlier; one must either explain the outlier or justify excluding it from the field. Either approach, though, accepts the existence, and hence legitimacy, of the outlier. Now look at politics, and consider just how many things outside the field of immediate vision get ignored on a daily basis—and particularly so when principles such as "least acceptable excursion" are applied at the system, and not individual, level.
3. Acceptance of the possibility of error. By its nature, academic approaches beseech themselves to consider the possibility that they may be wrong. (No, smartass, the egotism of many academics themselves is not a counterexample; even when bowing down to doctrine about the orbit of young academics around academic monoliths, the monoliths still move over time.) The fact that every single academic field as taught to undergraduates in 2004 is different from that in 1904—and probably even than in 1954—demonstrates that. It is not just "changes in fashion"; a significant part of academic work beyond the freshman year in college involves implicit and ofter explicit contrast of the instructor's approach with historical approaches to the same or similar material. This also links back to the first point. Even in the most hidebound, authority-ridden fields (such as law and pre-20th-century English literature), argument from authority declines in force over time after the authority is no longer current.

There is certainly a place for conservatives in academia. In an evolutionary sense, they are actually necessary, as new "doctrine" that cannot withstand a conservative attack is mere hypothesis, not theory or fact. However, the mindset necessary to advance knowledge is population-skewed toward what we now, in this country anyway, call "liberal."

Character Defects

Judge Posner of the Seventh Circuit penned a fascinating copyright decision yesterday. In Gaiman v. McFarlane (PDF, 78kb), he made two obvious holdings, and one not-so-obvious one. On the whole, this is a victory for authors' rights, even if it does contain a small potential landmine.

The first, and perhaps most important in the light of Morris and its progeny, holding concerns when the statute of limitations on copyright infringements begins to run. Although not entirely ruling out the concept of "constructive notice," the opinion explicitly holds that none of the following, individually or collectively, constitutes "constructive notice" to the author that there has been an infringement, and therefore starts the running of the three-year statute of limitations:

• The printing of a compilation copyright notice to the compiler in the original edition, with or without notice of copyright of any contributor to the work.

  The function of copyright notice is to warn off copiers, not to start the statute of limitations running. There may be situations in which the notice just happens to put a copyright owner on notice that someone is acting in derogation of his rights. Remember that a claim inconsistent with the copyright holder's interest sets the statute running, and in particular circumstances a notice indicating that the defendant was the sole copyright holder might amount to such a claim. But not when the work is a compilation, as Spawn No. 9 plainly is. For it contains, besides [author] Gaiman's contributions and goodness knows who else's, a letter-to-the-editors column containing a number of signed letters from fans plus art work contributed by fans. As [artist/publisher] McFarlane concedes, the copyrights on those letters and on the art work are owned by the fans and his copyrighting the issue is not a claim to own their copyrights.

  Slip op. at 11-12 (citations omitted).

• The printing of a compilation copyright notice to the compiler in a later revision or reprint incorporating substantially all of the original edition, even in combination with other works ("unless there is a duty of authors to read the copyright pages of works containing their copyrighted materials—and there is not—then… the notice can affect the accrual of the cause of action only if the victim [actually] reads it").
• The copyright registration filed by a compiler in the compilation. Presumably, this would hold true even if the compiler improperly claimed not a compilation, but a total, copyright.

  In addition to the copyright notices, McFarlane registered copyright on the issues and the books. But to suppose that by doing so he provided notice to Gaiman of his exclusive claim to the characters is again untenable. Authors don't consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane's registrations no more revealed an intent to claim copyright in Gaiman's contributions, as distinct from McFarlane's own contributions as compiler and illustrator, than the copyright notices did. The significance of registration is that it is a prerequisite to a suit to enforce a copyright. More precisely, an application to register must be filed, and either granted or refused, before suit can be brought…. All that is important in this case is that it is no more the purpose of registration to start statutes of limitations running than it is the purpose of the copyright notice itself to do so.

  Slip op. at 14 (citations omitted).

• Negotiations over compensation occurring after publication of the original edition, at least until such negotiations show that the compiler is claiming the original (not just compilation) copyright in a way that would place a prudent author on notice that his or her copyright was being claimed by the compiler. In Gaiman, this involved an explicit statement ("The statement 'all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions' was an unambiguous denial of Gaiman's copyright interest and therefore is the last date on which his claim could have accrued and the three-year copyright statute of limitations thus have begun to run" (citation omitted)). There are probably other ways of doing this; they just didn't appear in this matter.

In this matter, McFarlane's statement that placed Gaiman on notice of the copyright claim was in early 1999. Gaiman filed suit one month short of three years later. Judge Posner ruled that Gaiman therefore filed suit inside the statute of limitations. (This result was obvious after listening to the oral argument in the matter, at which time Judge Posner granted McFarlane's lawyer extra time and then spent it eviscerating McFarlane's lawyer.)

The second holding concerns what is necessary for copyrightability of characters.

[W]here two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared. The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren't thinking of the case in which it couldn't stand alone because of the nature of the particular creative process that had produced it.

Slip op. at 21-22.

This does not extend to mere contribution of an idea; it requires at least some originality, albeit not enough originality to justify a copyright in the abstract, standing alone.

The minor landmine is for another time.

The Rule of Law

As usual, a Slate columnist has gone too far. I don't know what it is about Slate that encourages extreme positions. This is not to say that they shouldn't be published, because they add to the value of public discourse. It is only to wonder about the willingness of the editorial staff to question illogic. Richard Ford asserts that "[u]ntil a court decides otherwise, then, local officials are bound to uphold state law." Professor Solum rebuts this persuasively:

City officials, like judges, are obligated by the law itself. This means that when the responsible city official believes that an ordinance or is unconstitutional, she should not enforce it. Ford takes the position that the rule of law is virtually identical with the rule of judges—a proposition that is unsound as a matter of political and legal theory. The rule of law requires that we adhere to the law—and not only to what judges have already pronounced the law to be.

"Ford on the Duty to Obey the Constitution" (23 Feb 2004).

To borrow an approach from Slate, let's look at the extreme case. A military officer is even more bound to follow directives than is a "local official." Local officials, after all, aren't subject to court martial for failure to obey an order. Consider an order to raze a village in north-central Iraq. The order itself doesn't say so, but the superior officer—let's say the battalion commander, a lieutenant colonel—indicates to the company commander who will be charged with the task that this means killing civilians because they're almost all al Q'aida members, or at least sympathizers. In turn, the company commander (a captain) parrots this to the platoon leader, a second lieutenant barely out of Annapolis (we'll pretend these are Marines, not Army). The lieutenant blindly follows the order, resulting in the deaths of approximately 125 civilians.

Under Ford's theory, the lieutenant did the right thing. Those with long memories may recall something similar in the 1960s. As Lt William Calley and Capt Ernest Medina found out, their defense that they were "only following orders" was improper both on factual grounds—they didn't present much evidence that such orders had actually been given, although later investigation indicates that they most probably were—and legal grounds. The military judge ruled that even if such orders had been given, they were so clearly unlawful that an officer under the pressure of a combat zone was still required to disobey them. This ruling was undisturbed on appeal. Under Ford's theory, though, the lieutenant (and captain) would not be guilty of war crimes, but would be guilty of disobeying an order.

I'll freely admit that I have stacked the deck here a bit. The military provision actually pertains to "lawful written" orders and "dereliction of duty." In other words, even in the rigid environment of the military, one is required to at least make a surface inquiry into whether an order is lawful. This points out the reality of what military officers, and local officials, must do: they must use their judgment to apply potentially conflicting directives from higher authorities to particular factual circumstances. Whether the local officials in San Francisco are correct in their conclusions is irrelevant; Ford would make them incorrect in their inquiry. Nobody has presented evidence that the San Francisco officials have made their stand in bad faith—quite the opposite: they have pointed to a conflicting authority even higher than the statute itself. That is the opposite of what the lieutenants described above did. Ford's invocation of John Hart Ely is unavailing, because it is precisely opposed to the particular examples Ely used in forming his theory. Remember, "Jim Crow" wasn't just a practice—it was state law.

The local officials in San Francisco have been put in an untenable position by conflict between two provisions from higher authority. They have made an explicit choice of which one controls, and then adapted their actions to that choice. Whether one agrees with their interpretation is a separate question; they did their duty as local officials. If their choice proves to be egregiously wrong, there are retrospective remedies for the particular choice they made (the marriage licenses can be retroactively revoked and the officials removed from office). But criticizing them for having the temerity to act without judicial guidance when there is no judicial guidance on the particular issue is not just unrealistic; Ford's position arguably violates both the US and California constitutions. It sure as hell violates common sense. That's why we have local officials and not automatons.

Antidisestablishmentarianism,

one of the favorite "spelling bee" words in the 1960s, would be a clear and easy concept compared to the Shelby bill to "restore the Constitution" that was recently introduced. As Professor Balkin notes, the bill

is designed to pander to the far right by stripping the federal courts of jurisdiction to hear certain Establishment Clause cases, requiring that in deciding constitutional cases federal courts may not look at the law of any other nation but "English common law," and threatening impeachment and removal of any judge who defies its provisions.

"The Unconstitutional Restoration Act" (24 Feb 04). He concludes that

Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.

Id.

The real problem is that the sponsors of the bill are unwilling to admit that what they want to do involves constitutional change, regardless of whether that is "restoration" or not. The Constitution, as the Judicial Power (Article III, § 2) has developed, has come to include a great deal more than the mere text of the constitution; the text is the starting point for interpretation, but not always the endpoint. The problem with the Shelby bill will be a little clearer when it is placed in a less-emotional context. Consider, for example, some recent calls to return to Lochner, which was overturned in the 1930s. Under Lochner, it would be virtually impossible to regulate working conditions, because such regulations would impair the "freedom of contract" of the individual laborers. Let's hypothesize a bill that, perhaps without naming Lochner itself, in practice reverses almost seventy years of doctrine. The logical question here is whether that would represent "constitutional change." If it does, then the proper means of accomplishing it is by amending the Constitution. The concept of "supremacy within respective spheres of action" governs here. Congress cannot by statute overrule a provision in the Constitution. If the Judicial Power means anything at all, Congress cannot by statute overrule a Supreme Court decision interpreting the Constitution.

The real point is that Shelby et al. would rather have the Judicial Power mean nothing at all. They instead want the Constitution to be interpreted solely through (their vision of) the current majority rule. To them, that this contradicts virtually everything in Article III that is designed to keep the courts from becoming playthings of mob rule is irrelevant; to me, it is the point.

Shelby and his cronies did not have the intellectual honesty to admit that they want to change the Constitution. If they did, they would have introduced an amendment to accomplish the same purposes. That this would have been politically inexpedient, because it admits that change is required (regardless of whether the change is to "correct" misinterpretation), and their position is that change simply shouldn't happen. Which, of course, leaves the question of why the Constitution has provisions built into it regarding amendment.

Pigs in Pokes

There was a fascinating article in today's Observer on the practice of buying books on spare synopses. Whether the British numbers are slightly ahead of or slightly behind the American numbers is irrelevant; the practice is very similar indeed.

A truly surreal moment on the radio today: right after a news report mentioning the Martha Stewart trial, there was a Martha Stewart commercial beginning something like "Have you ever had one of those annoying moments when you can't leave somewhere?" I'm afraid that the new color of the dashboard is coffee.

Over at FindLaw, Professor Vik Amar (Hastings) completed a provocative two-part series on jury reform. The articles (part 1) (part 2) are well worth a look.

I have considerable personal experience with peremptory challenges—as a juror. Or, rather, potential juror. I have never been called to a civilian court (and, absent a medical situation, I would welcome the opportunity). I was selected for the initial panel of courts-martial over forty times. I was peremptorily challenged off those panels thirty-seven times, generally for a single reason: during that time, I was on command orders. In the community of military defense counsel, there is a perception that commanding officers will always vote to convict and throw the book, just on the word of their counterparts in other units. Silly me—I thought I was supposed to listen to the evidence and decide based on the evidence alone. (I also note that one of the four panels I did serve on acquitted the defendant—and the conviction rate in peacetime courts-martial is well over 90%.) At least in a court martial each side gets only a single peremptory challenge. That is one too many, for many reasons other than those noted by Professor Amar.

Judicial Activism

<SARCASM> Yeah, the gay marriage issue is all the fault of activist liberal judges. </SARCASM> So, then, does that make Bull Connor an activist reactionary elected official? Or Richard M. Daley an activist anything?

What I find most disturbing about the whole "gay marriage" argument is what it reveals about the priorities of those who are up in arms about it. On the one hand, those most adamantly opposed want to waste the government's time and effort on opposing perhaps the most victimless of imaginable victimless crimes: the marriage of individuals not involving themselves (or even, necessarily, their families). Leaving aside the obvious parallels to miscegenation, the torrent of sound and fury on gay marriage contrasts rather starkly with the silence on, for example, the greatly increased propensity to commit (or at least be convicted of committing) violent crime associated with grossly inadequate inner-city school systems. The irony that many educators think that family involvement is the single greatest determinant of educational success, and the Disloyal Opposition is trying to prevent family formation while simultaneously blocking every effective effort at reform and improvement because it would cost too much, itself points to a problem with priorities. What that crowd really seems to want is not respect for, but universal conformity with, their preconceived notions of morality. If that really is their priority, that's their business; but trying to pretend that the priority itself is content-neutral is not.

On the other hand, the most rabid pro-gay-marriage forces can be just as bigoted as their opponents. Again, this is most apparent in an absence of respect for alternative viewpoints. A strongly held moral belief that gay marriage is wrong is not a sure indicator of someone who supports summary execution of gays—but that is the rhetoric one hears all too often. Similarly, "marriage" is hardly the most critical issue confronting the GLB community, even in the narrower sense of civil rights.

I think I am expecting far too much honesty from politicians again. For that is what this is about: it is not religion, or morality, or concern for future generations of children; it is about raw, naked power. That some of the individuals on each side are operating from any of those concerns does not change the nature of the entire debate, nor the reprehensible bigotry (on both sides) of most of the major public leaders.

I'm going to be a bit scarce for the next few days; I slipped on some ice and sprained my wrist catching myself. Voice recognition only goes so far…

Treating the Symptom

I'm going to pull a random CD out of my collection (not completely random, as it will be so-called "popular music" from the last 15 years) to show what the real problem with the music industry is. Don Henley alluded to it indirectly in his opinion piece in the Washington Post yesterday:

So whether they are fighting against media and radio consolidation, fighting for fair recording contracts and corporate responsibility, or demanding that labels treat artists as partners and not as employees, the core message is the same: The artist must be allowed to join with the labels and must be treated in a fair and respectful manner. If the labels are not willing to voluntarily implement these changes, then the artists have no choice but to seek legislative and judicial solutions. Simply put, artists must regain control, as much as possible, over their music.

"Killing the Music" (17 Feb. 2004).

I just pulled a copy of Suzanne Vega's 1990 CD Days of Open Hand from the shelf. It bears the following copyright notice, and only notices elsewhere in the packaging consistent with this notice printed on the CD itself:

Produced by Anton Lanko and Suzanne Vega (P) © 1990 A&M Records, Inc. All rights reserved. Made in the U.S.A.

By comparison, pulling a recent first-time novel off the shelf, we find this notice:

All rights reserved. © 2001 by Ken Wharton [the author].

In terms of power relationships, Suzanne Vega in 1990 had a great deal more relative power, following up on a critically acclaimed and commercially successful album (Solitude Standing), than did new writer Ken Wharton, whose novel was accepted for publication before his first professional sale of other fiction. So, what gives? Why are musicians treated like employees and authors like artists? And does Henley's well-presented and well-taken objection to continued consolidation in the music industry treat the cause or the symptom? Does the title of this posting give away my answer?

Can you guess that this is another pathetic cliffhanger, on a subject I've alluded to previously?

More Electioneering Over Sense

There was an interesting article today on the gays in the military issue today in, of all places, Newsday. The article discusses a number of flag officer who "came out" relatively recently. (Given the time lapse and Newsday's usual practices, for that paper it's "relatively recently.")

…Adm. John Hutson, 56, who was a judge advocate general — the top legal officer of any service — joined their open dissent. The former Navy officer, a heterosexual who has been married 35 years, asserted recently in an exclusive Newsday interview that "don't ask, don't tell" undermines core U.S. military values. "It exacts a huge cost in dignity and respect from gays, who are forced to conceal their true sexual identity," said Hutson, who ended a 28-year naval career several years ago to head the Franklin Pierce Law Center in Concord, N.H. "It also detracts greatly from the esteem in which our military has been held by the international community, many of whose members allow such people to serve."

Arnold Abrams, "Ex-Officers: Military's Gay Policy Outdated" (17 Feb. 2004) (emphasis added; fake paragraphing removed for clarity).

Now compare this to the clear misconduct going on at the Air Force Academy—heterosexual misconduct in the main—and ask yourself which kind of conduct is more harmful to the military: consensual sexual relations between adults or heterosexual rape? I spent the better part of a decade as a commanding officer, and never used the then-equivalent of AFI 36-3208 § 5G (enlisted, then known as AFR 39-10 ¶ 5-11(h)) or AFI 36-3207 § 1B (officers, then under AFR 36-12). I had too many problems with heterosexual misconduct in my units to waste effort on witch hunts.

Review of 10 U.S.C. § 654 is enlightening:

[(a)](2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

*  *  *

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

These statements are all in the "findings of fact" part of the statute, which is virtually unreviewable. These findings of fact were made by persons who had never served in combat after stacked hearings. They would be thrown out by a court of appeals had they been made by a lower court. But what is most enlightening is the structure: it takes fourteen findings of fact before getting to that crucial fifteenth one. In argumentation, a chain of inference that long is usually a sign that some or all of the intermediate facts are known to the speaker as being of dubious value. For example, item 5 is a non sequitur — remove it from the chain and you've lost nothing. It is clearly an element of item 4, since the word "combat" implies "possibility of death or maiming". Instead, what this structure does is bury the controversial assertion —it doesn't even qualify as a "legal fact" — in the hope that eyes will glaze over before reaching it.

Yep. That kind of disingenuousness really improved my morale, enabled me to ensure good order, discipline, and unit cohesion, and helped create bonds of trust among individual service members. We're supposed to protect the Constitution against all enemies, foreign and domestic. So, by the terms of this statute, we have to consider that some of ourselves are the enemy. Whether those enemies are the ungodly homosexuals in the service or the moronic legislators is above the pay grade of most service members — but not above mine. I was a commissioned officer, which requires me to always ensure the lawfulness of orders I gave or followed. That did not always mean a formal legal review; but it meant a much more searching inquiry than that performed by William Calley and Ernest Medina.