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A very wise discussion from Taleb’s new book Antifragile about the significance of smear attacks, and how to respond to them:

Information is antifragile; it feeds more on attempts to harm it than it does on efforts to promote it. For instance, many wreck their reputations merely by trying to defend it.

…

Criticism, for a book, is a truthful, unfaked badge of attention, signaling that it is not boring; and boring is the only very bad thing for a book. Consider the Ayn Rand phenomenon: her books Atlas Shrugged and The Fountainhead have been read for more than half a century by millions of people, in spite of, or most likely thanks to, brutally nasty reviews and attempts to discredit her. The first-order information is the intensity: what matters is the effort the critic puts into trying to prevent others from reading the book, or, more generally in life, it is the effort in badmouthing someone that matters, not so much what is said. So if you really want people to read a book, tell them it is “overrated,” with a sense of outrage (and use the attribute “underrated” for the opposite effect).

Balzac recounts how actresses paid journalists (often in kind) to write favorable accounts— but the wiliest got them to write unfavorable comments, knowing that it made them more interesting.

…

Criticism itself can be antifragile to repression, when the fault finder wants to be attacked in return in order to get some validation. Jean Fréron, said to be a very envious thinker, with the mediocrity of envious thinkers, managed to play a role in intellectual history solely by irritating the otherwise brilliant Voltaire to the point of bringing him to write satirical poems against him. Voltaire, himself a gadfly and expert at ticking off people to benefit from their reactions, forgot how things worked when it came to himself. Perhaps Voltaire’s charm was in that he did not know how to save his wit. So the same hidden antifragilities apply to attacks on our ideas and persons: we fear them and dislike negative publicity, but smear campaigns, if you can survive them, help enormously, conditional on the person appearing to be extremely motivated and adequately angry— just as when you hear a woman badmouthing another in front of a man (or vice versa). There is a visible selection bias: why did he attack you instead of someone else, one of the millions of persons deserving but not worthy of attack? It is his energy in attacking or badmouthing that will, antifragile style, put you on the map.

In the event anyone launches a smear attack on me in the future (it has already happened), I plan on simply linking back to this post. That will be the extent of my response.

The audio is here. I come on around 19:45. Apparently I add a “distinctly international flair” to the show.

I also focus on the CFTC suit against InTrade. InTrade is based in Dublin, Ireland. Please check out my Op-Ed in the Houston Chronicle on the InTrade suit.

“There are four of us from New York City. We have every borough covered except for Staten Island; we’re waiting for that Staten Island judge.”

I have commented for some time on the lack of a Supreme Court justice from Staten Island.

Four of the five boroughs are represented. Kagan is from Manhattan. Sotomayor is from the Bronx. Scalia is from Queens. And Ginsburg is from Brooklyn. But what about Staten Island?

The Daily Show even did a segment on this tragedy.

The Daily Show With Jon Stewart	Mon – Thurs 11p / 10c
Staten Island Supreme Court Justice
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

In the event they are looking for a colleague from the County of Richmond, hey, Elena, call me, maybe! (and no, Justice Alito being from Jersey does not count!).

For my further comments on Justice Kagan’s lecture, see here.

Justice Kagan gave a lecture at the 6th and I synagogue in Washington, D.C. (where I used to attend), and commented on two different types of dissents–which she has “a little bit of practice now.”

There are two types of dissents, Kagan said. The first are cases, like the two she mentioned [one about campaign finance and one about taxpayer dollars going to religious institutions–JB: Arizona Free Enterprise v. Whiting and Arizona Christian School Tuition v. Winn, respectively] and , that are particularly important and which lead a judge to write her dissent hoping that it will be read in the future as a “marker.”

“You want to set down an alternative way of viewing the issue…in the hope that that might affect something in the next case, or the next case or the next case. You would love that some day this decision is going to be reversed and my way will be the law of the land,” Kagan said, though she noted those instances are rare.

These likely turn into perpetual dissents (see here, here, and here). I have proposed, but no one has seconded, my rule against perpetual dissents.

Implicit in Kagan’s comments is that such a “marker” dissent does not accept the precedent as being valid (in conflict with the other type, discussed infra, which she accepts, begrudgingly perhaps). Breyer is more blunt–the majority is simply wrong.

In a recent Sidebar column, Adam Liptak focused on Breyer’s Perpetual Dissent (and cites a GMU Law Review article!)

In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

Likewise, Justice Sotomayor has no problem labeling the majority as “wrong.”

“I do think I was right. I think the (majority) were wrong.”

Breyer, like Sotomayor, and Ginsburg never accepted Heller as valid. Kagan has joined Ginsburg, Breyer, Sotomayor, and Stevens, in arguing that Citizens United is not valid, in light of their vote in the Montana case last year.

But for some cases, Kagan dissents, because, well, just sayin.

Other times, though, Kagan said, a judge writes a dissent to explain why she disagrees and out of respect for the litigants and the law, but then she moves on and accepts the majority opinion as the law of the land.

This is a very important discussion. I’m glad the Justices are frank about what they are trying to do with their dissents. I’m still not sure about Kagan’s Medicaid vote in NFIB. Just sayin.

Of course, Justice Harlan’s explanation of dissenting is my favorite.

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

Kagan, who Larry Tribe noted would have “purchase” on Justice Kennedy–as opposed to Sonia Sotomayor, who would not–prided herself in being able to “move minds”:

Kagan said that, although there are cases where justices “just see the law differently,” there are also those “where you can persuade each other and you can find a greater answer than anyone could see at the beginning. … I love the cases where you can and you do move minds.”

Kagan also commented on the role public opinion does (not) play in judging.

“Well, I don’t think any of us make our decisions by reading polls,” Kagan said. “One’s sense of what to do as a judge is bounded in some way by the society in which one lives” and the political process of getting appointed, she said.

Still, the justice said, “One does think long and hard as a judge — and I’m not sure I’ve ever been in this position –… before you do something that you think is required by law that would be incredibly disruptive to society, and that’s where great wisdom is called for.”

Kagan was also asked about how her faith impacts her role on the Court:

Kagan was also asked about how her religion has affected her on the court, where she is one of three current Jewish justices. (The other six are Catholic).

“It feels very natural; it doesn’t feel like a big deal. And that is an unbelievable thing about this country,” she said.

And as for being a woman on the bench: “We go into the conference room; we close the door. I don’t think that very much turns very often on the gender differences.”

I’ll never forget Kagan’s answer to Senator Graham of how she spent her Christmas day:

 “Like all Jews, I was probably at a Chinese restaurant.”

A very cool lecture. I’m sorry I missed it.

Nearly five months after the tragic shooting, Colorado Gov. John Hickenlooper stated that “the time is right” to reconsider various gun laws.

“I wanted to have at least a couple of months off after the shooting in Aurora to let people process and grieve and get a little space, but it is, I think, now is the time is right,” Hickenlooper said.

While I may not agree with the substance of the Governor’s reforms, I commend him for approaching this issue when passions have calmed and the tragedies are a bit less fresh in our mind.

Hickenlooper also recently (quietly) signed into law the law legalizing marijuana, so I guess everything got a lot more chill in Colorado.

Update: I wrote this post last night–before the tragic shootings in Connecticut his morning–and scheduled it to publish this morning.

Update 2: CF. this tweet from Maryland Rep. Donna Edwards:

[tweet https://twitter.com/repdonnaedwards/status/279649364169854976]

Update 3: Cf. The White House said “today’s not the day” to talk about gun control.

“I think that day will come, but today’s not that day, especially as we are awaiting more information about the situation,” Carney told reporters in a somber press briefing at the White House.

Update 4: Mayor Bloomberg weighs in:

With all the carnage from gun violence in our country, it’s still almost impossible to believe that a mass shooting in a kindergarten class could happen. It has come to that. Not even kindergarteners learning their A,B,Cs are safe. We heard after Columbine that it was too soon to talk about gun laws. We heard it after Virginia Tech. After Tucson and Aurora and Oak Creek. And now we are hearing it again. For every day we wait, 34 more people are murdered with guns. Today, many of them were five-year olds. President Obama rightly sent his heartfelt condolences to the families in Newtown. But the country needs him to send a bill to Congress to fix this problem. Calling for ‘meaningful action’ is not enough. We need immediate action. We have heard all the rhetoric before. What we have not seen is leadership – not from the White House and not from Congress. That must end today. This is a national tragedy and it demands a national response. My deepest sympathies are with the families of all those affected, and my determination to stop this madness is stronger than ever.