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August 31, 2003

If you can't stand the heat...

I've never understood the passionate contempt that some of my associates have for Ann Coulter. She's not on my reading list, but I notice somehow she's gotten herself fixed as a hate figure for the Left to an extent devoid of all reason. Take this article, from the often lucid Spinsanity: Ann Coulter: The Jargon Vanguard.

After going to great length to point out that Coulter writes in an aggressive, emotional fashion (stop the presses!), he concludes:

Why is Coulter so important? Even though most people haven't heard of her, she and other relatively young jargon-slingers like David Limbaugh and Michelle Malkin are gaining stature. As a result, the rise of aggressive political jargon is likely to continue, with predictable and pernicious consequences for American political discourse.

Because, you know, Maureen Down has been a model of tact and discretion, and I go to the New York Times editorial page looking for the Marquis of Queensbury rules of political debate. Still, for you Coulter-haters, I leave the link so you can pick up a few more quotes.

Don't say I never did anything for ya!

Whiskey, Wires, and Women

The server has landed: now the HFMD has two computers: my notebook and a backup server permanently connected to the net and always on. I've been buzzing since 7:30 AM when the coffee pot started automatically and the server launched my mail client, checked the mail, and played a list of very loud songs designed to get my sorry butt out of bed.

A piece of advice: if you've had far too much good bourbon the night before and woken up in a bit of emotional turmoil anyway, do not turn on Mary Chapin Carpenter's Stones in the Road. It's a guaranteed one-way trip to depression central. The only cure? A bit of Jimmy Buffett and a strong margarita. Hey, it's past five in England, I consider myself to be drinking with old friends.

Just plain dowdy

Can someone please tell Maureen Dowd that it's hard to take an argument seriously when it's written primarily in one-sentence 'paragraphs?' This woman would be an embarassment to a paper that still had a sense of shame.

There's one of two possibilities here. Either a) the New York Times has given up all hope of excellence in editing (maybe they're too busy looking for the next Jayson Blair to check for style?), or b) she somehow conned whoever glanced at her work into thinking that it wasn't really an op-ed, but an extended piece of free verse.

Chickadee, if your writing is the worst Karl Rove has to be nervous about, he's sleeping soundly at night. How does this woman keep her job?

August 30, 2003

Bush v. Gore II: Update on the Taco Bell Election

Taco Bell accused of Election Rigging. I'm expecting the appeal to the Supremes any day now.
(via CityCynic)

Wondering what it's about? See the Taco Bell Recall Poll.

Can this election get any funnier?

Update: Am I really that bad? I've gotten three emails now from people telling me there's no 'case' and this would never go to the Supreme Court.

Folks, read it again. If you're wondering what 'an appeal to the Supremes' would be, walk into a Taco Bell and look at the menu...

Ben v. Jerry: I've found my Pro Bono Opportunity!

It's been bothering me for a while, though it's not immediately important: Columbia Law School has a 40-hour pro bono requirement that I've had no idea how to fill. How does a right-wing republican who doesn't believe that the law should be used as a blunt instrument for social change find pro bono work? Most of the options put forward by the law school so far make the place look like a wholly-owned subsidiary of the Democratic Party. If I were to choose some picked upon client for whom I'd donate my time, it would be the tobacco companies--but since they've got the money to pay, they don't count.

Now I've found it. First there was the crusade against tobacco, then the gun industry. Then that paragon of junk science and ahistorical drivel Fast Food Nation joined forces with economic illiterate Naomi Klein's No Logo to spawn ridiculous lawsuits against the fast food industry. Now, just in time to generate a lawsuit right when I'll need pro bono work? The assault on ice cream! (From your friends at the Orwellian Center For Science In the Public Interest.)

“It’s as if these ice cream shops were competing with each other to see who could inflict the greatest toll on our arteries and waistlines,” said CSPI senior nutritionist Jayne Hurley. “It’s not just regular ice cream, but premium. It’s not just one scoop, but two or three. It’s not just a cone, but a chocolate-dipped waffle cone. It’s not just hot fudge, nuts, and whipped cream but every conceivable combination of cookie, candy, and chocolate.”

And for God's sake, gimme more! These self-described 'food sleuths' are officially nominated for my Blinding Flash of the Obvious award:

“No one disputes that the obesity epidemic has many causes,” said CSPI executive director Michael F. Jacobson. “But certainly the sheer size and caloric density of these ‘indulgences’ has something to do with the size of Americans’ pants.”

And you know, the worrying thing about that is Levi's is running out of cotton to make husky trousers. CSPI might someday replace Vogue as a leading cause of bulemia in impressionable young women.

Certainly when the inevitable class action suit comes out next year, there'll be a way for me to manage some kind of work that will take forty hours, no one will pay me for, and can be said to be in the public interest. These guys aren't exactly trying to take candy from babies, but it's close.

Only downside--if it's pro bono, I probably won't get any free ice cream.

August 29, 2003

For my old web-developer friends

I just ran across Goats. If you've ever worked in web development and haven't seen this (and I'm sure I'm last on the bandwagon here), you need to read it.

In case you need any more incentive, Goats stand on the California governor's election: Republicans for Voldemort.

A new form of torture

Note to future 1L's in this dorm: stuff in the Malebolge always breaks while the supervisor is out for a long weekend.

In this case, my call-box to the door has decided to start issuing a barely-audible high-pitched squeak. It was such that I could never get to sleep with it working, but of course, the super was out. I had two choices--find somewhere to crash or disconnect it.

I'm sure I've broken some rule of the dorms by unscrewing the faceplate and disconnecting the wiring. Still, it's better than feeling my ears start to bleed.

Inexplicable associations

I went out to Bar Revue (otherwise known as the weekly piss-up) tonight. Again, a loud and somewhat overpriced Manhattan bar, which served a Manhattan in a martini glass and managed to screw up a vodka on the rocks.

For some reason I was reminded of Wilde's The Happy Prince, though for the life of me I couldn't tell you why.

I caught a cab with a few friends on the way home. Walking back from the law school to my dorm on a warm and clear night, another more grim set of stories passed through my mind: the strange folklore of the La Llorona (the Crying Lady or the Mirror Lady) and the Blue Lady. If you don't know what these horrifyingly beautiful legends are, you should check them out. Just fair warning, they're not pretty.

August 28, 2003

Rule 1 of Socratic Method

This is hardly original, but having just been called on, I'd like to state Rule 1 of Socratic Method as I've learned it:

You will be called on only on the day that you've not prepared your briefs and have to bluff your way through. Preparation is the best way of getting out of ever getting called on.

Didn't make an utter fool of myself, but I wish I'd read a little more closely.

Update: Got called on for the next case, and did make a fool of myself. Lesson learned.

Judge Moore: Defender of Stare Decisis

The Yin Blog. The Legal Theory Blog. The Volokh Conspiracy. Today, Marci Hamilton. All of them, over the last few weeks have decided to blast Judge Moore for failing to remove his absurd monument to the 10 Commandments. With such a parade of heavy hitters against him, it makes it irresistable to try to defend the man, especially since he's doing such a poor job of defending himself.

While I actually think that an antipathy towards Christianity is behind at least some, if not all, of the general outcry against Judge Moore (though certainly not in the sources above), his key problem is the order of U.S. District Judge Myron Thompson to remove a 5,300 pound eyesore that seems to offend some very sensitive anti-religious sensibilities. Unless he can get past that, he's a goner.

Now Moore's key problem is he's a bombast, and more interested in being right than winning. So far he's made a number of fairly inconsistent and illogical arguments, mostly centering over state's rights issues. But imagine he were a Cardozo, a Learned Hand, or one of these other fellows accustommed to generating 'revolutions' in the law. In other words imagine he wanted to be clever and win, rather than garnering publicity. He might say this:

"Fellow Alabamians, fellow Americans: there has been a lot of talk lately about my failing to obey the order of a federal court to remove a monument to the Ten Commandments. It is with great regret that I have to announce that I cannot announce the order, as a matter of well settled law.

One of the backbones of our legal system is stare decisis, that a lower court must follow the precedent and example set by higher courts. In matters of the constitution, there is no court higher than the U.S. Supreme Court, and they have overturned the order of Judge Thompson.

The Ten Commandments are displayed prominently in the Supreme Court building itself, and of the great lawgivers immortalized in statue therein, the one of the oldest is Moses. I can't tell from the picture, but he seems to be holding the transcription for which he's best known.

Now, it's true that the Supreme Court denied certiorari in this case, however I choose to believe this is because they have established, by their very building, a precedent in fact. Their actions have spoken eloquently enough that no ruling was necessary. It would be violating my duty as a judge in upholding stare decisis for me to remove the monument, for by doing so I would be questioning the constitutionality of the United States Supreme Court, and I am not willing to take that step."

Why should he do it? Well:

  1. It certainly increases his chances of the Supreme Court paying attention, if only in order to take their words out of his mouth.
  2. It would show how silly this entire thing is. No one's trying to remove the Commandments from the Supremes.
  3. From my point of view, it's about time that Christian conservatives start working the 'legal realism' beat. If Justice Kennedy can find sodomy in the Fourteenth Ammendment, certainly Judge Moore can interpret the actions of the Supreme Court to speak as loudly as their words. And if we're ever going to get rid of legal realism, it needs to be less of a one-party process. Right now, it's a trend from which a (mostly secular) left has nothing to fear, because it will rarely be used against them. Here's a chance to stop that.
  4. It's narrow. Yes, in most cases I'd disapprove of a strategy like this, simply because it's making up the law as you're going along, 'pretending' that there's a tradition of stare decisis in action that doesn't exist. Then again, in how many cases can the structure of the Supreme Court building itself be used as an argument?
  5. It's clever, at least superficially, and would satisfy those who demand a little nodding wink with their judicial creationism and can't stomach claims of 'states rights.'

Just a thought before breakfast.

August 27, 2003

The itinerant chef strikes again

My plan to steal the kitchens of friends in apartments and entertain them with malice aforethought has gone one step further, this time with a cajun salmon (I was going to do tuna but Fresh Direct decided not to deliver it) over a three-pepper stir fry with wild rice. The salmon was a touch overcooked, and next time I'll do something a bit more special with the stirfry, but it went off fairly well and I might be invited back to cook.

So not having a dorm kitchen isn't completely defeating me. Indeed, it gets me out of the house and meeting people, and provides a nice break before studying in the evening. At the end of law school I think I'll write a book called The Itinerant Gourmet: How to Cook For Four With No More Food Than You Can Carry in a Handbasket.

Next stop, an apartment of four guys. This time something with lots of red meat and red wine, or even beer. Recipe suggestions?

Wonder of wonders!

The ethernet connection to the Malebolge now works. OK, the kitchen is still a cockroach-ridden abomination unto the Health Department, but at least I can browse the web from the dubious comfort of my dormitory.

What a piece of work is law!

I think the sum total of one and a half weeks of legal methods so far has inspired, mostly, a longing to live in the mid-ninteenth century, or at the very least, to live under its jurisprudence. The conception of law after the coming of the realists has been undoubtedly more just, and certainly more realistic, but it is so incredibly unromantic.

The cases we've studied so far focus mostly on the breakdown of the common law 'master-servant' rules, and the formation of modern product liability and workplace liability law. One of the things that has struck me, although since this isn't a philosophy or literature course we've not focused on it, is how the cases change not what is a conception of law, but a conception of man.

Even the servants in Priestly v. Fowler or other earlier, common law liability cases, are imagined to have a responsibility both to themselves and others, and the ability to make real, albeit hard, choices. Priestly, a servant, is considered to be able to make a choice--get on the cart, whether he thinks it's overloaded or not, or leave his master's service. The latter is a hard choice, of course, but it's considered to be within his power to understand the decision and within his ability to assume the risk. He is a man, "how noble in reason! how infinite in faculty!"[1]

Jump forward one country and several centuries, and see what Judge Frank has made of this man, in Ricketts v. Pennsylvania R. Co.. Ricketts, a man who has benefited from a public education unavailable to Priestly (and was, for that matter, much more likely to be simply literate), has signed a release for injury to his railroad company, with advice of counsel. And yet Judge Frank decides:

"I believe that the courts should now say forthrightly that the judiciary regards the ordinary employee as one who needs and will receive the special protection of the courts when, for a small consideration, he has given a release after an injury. As Mr. Justice Holmes often urged, when an important issue of social policy arises, it should be candidly, not evasively, articulated."

I won't argue that the decision is less than just, or even that it's less than realistic. But how miserable the creature that Franks is addressing, one who does not, and it can be presumed cannot, understand the world in which he has entered, the forces by which he's surrounded, and can't make a decision of certainty vs. risk even if it is offered. I think much of my fondness for the Scalia-brand of textualism is that its view of mankind does not encompass that man. Why is this someone that one would want to be?

Whatever its other merits, realism is revolting to a romantic instinct. Can one imagine what a Cardozo or Learned Hand would have done if faced with the contract of Doctor Faustus? [2] Never mind the fact that the Doctor was one of the most educated men of his time, that he can be assumed to have understood the 'deed of gift' in its language, and that (Hell having had many centuries to ammend it) the contract could be considered to be complete: wouldn't Hand have thundered that no signee could possibly (they being with soul and thus mortal) have comprehended what that clause about 'eternity' meant? Can't it be assumed that Cardozo would find some reason that Mephistopheles, as Faust's 'employer,' warranted safe 'working conditions,' and that these could not be found in a firey furnace?

Ah well, time to get back to the next few cases. One good thing about blogs, for any of you up-and-coming 1L's: they give you a place to file irreverant thoughts like these, and they're good for a bit of daily distraction from the stress of briefing.



[1] Hamlet Act II, Scene II
[2] For the picky, assume that Faustus is an immigrant and a professor to the City University of New York, and that Mephistopheles has his office in California for sake of diversity jurisdiction.

August 26, 2003

I'm never going to get any work done if I keep reading the prolific Volokh

I love the Volokh conspiracy, because even when I disagree with it, it's a funny read. Unfortunately, the article to which I linked shows a pretty common danger on blogs--arguing your opponent's point of view and then describing why the argument is so weak, having made a hash of their argument.

Volokh compares religious intolerance to intolerance of homosexuality, but in doing so I'm not sure he takes his opponent's arguments seriously. I was particularly thinking of his point regarding conduct and belief:

2. Conduct v. belief. Another reaction is that homosexuality is conduct, and therefore the proper subject of man's law, while belief is not properly governed by man's law. But Hinduism involves more than just disbelief in the Christian God, and belief in other gods; it also involves the conduct of creating graven images, and breaking the Sabbath. What's more, as I understand it, from a Protestant perspective, belief in God is at least as theologically important as conduct, and perhaps more so. The Ten Commandments, as we see, command belief as well as conduct. If the justification for outlawing homosexuality, or firing homosexual teachers, is simply that it violates God's law, then how does importing the conduct/belief distinction fit with such a justification?

But of course, this is a pretty limited statement of the difference between conduct and belief. First of all, most conservative Christians who make this distinction aren't outlawing homosexuality, but acts which practicing homosexuals would indulge in, and most, if not all, of those proponents of this belief would make such actions illegal between consenting adults of different sexes as well. Most of them would make the quite logical distinction between a practicing homosexual and someone who has such temptations but does not act upon them. ("Sinning in one's heart," however much one disliked Jimmy Carter, wasn't going to be made illegal by the religious right.)

His article doesn't explicitly state, but seems to rest upon the presumption that the branch of conservative Christians of whom he speaks (of which I am not one, by the way, having no big issue with homosexuality one way or the other, and not being particularly Christian) despise the idea of homosexuality but are perfectly willing to tolerate same-sex sodomy wheresoever they may find it. They're not--they have definite views on the importance and morality of certain sexual actions.

The distinction blurs simply because there are not that many heterosexuals who, in the normal course of their daily lives, announce loudly and in public that they engage in heterosexual sodomy, and for the most part, there's no way to prosecute a heterosexual who enjoys such acts but keeps the relationship private. On the other hand, two men who proudly declare themselves homosexual are not necessarily, but certainly suggestively, indicating that they engage in such acts. [1] But is anyone suggesting that the Jerry Falwells of this world wouldn't support prosecuting a man and a woman who explicitly stated they'd committed similar sexual actions? I can't imagine any of my old Christian Coalition friends from Washington objecting to a homosexual being allowed to be a teacher, but then simultaneously welcoming a female heterosexual teacher who admitted that she enjoyed any of the acts covered by Georgia's old sodomy statute.

In the end, sex isn't religion, and religion isn't sex, and I don't find it contentious that one can believe an act should be illegal because, from one's religious perspective, it's considered to be immoral.[2] I agree with him that many people are uncomfortable with the idea of discriminating against homosexuals partially because it goes against our ideas of religious toleration. But I'm also very wary about the simplistic charicatures of the religious right that tend to pop up in the blogosphere.

[1] I would think that most of Volokh's intended groups would have little problem with two men who lived together and never engaged in any sexual activity, at least legally, but the case is rare enough as to be difficult to tell.

[2] Volokh also slights the argument about toleration when he states that:

But I would hope that many people's attachment to religious freedom is deeper than just "Well, the Constitution requires it, so we have to reluctantly adhere to it." Religious freedom is often described as a broader ethical principle -- a principle that people should be tolerant of those of other religious groups, and should treat them equally (at least in allotting government jobs) even though they disagree with that religion.

Except, of course, that for many evangelicals this is explicitly not the case, whatever his 'hopes' for their attachments. Indeed, if you're an evangelical you pretty much by definition consider conversion a religious duty, and may not have a problem with that being enforced by law, per se. The principle behind the Establishment Clause can equally be seen as broadly pragmatic, instead of ethical--by not allowing the Federal government to establish a religion, every religious person is assured that their belief won't be outlawed, and that they may continue to evangelize. Volokh argument basically boils down to, "If you don't happen to be a strict evangelical, then the strict evangelical argument won't make sense to you." Which is true as far as it goes.

Update: There's been a lot of commentary on the original posting, including this at the Legal Theory Blog. Professor Solum quibbles (a bit more politely) with Volokh's view in similar ways to the above. I'll link to other comments as I find them.

August 25, 2003

Because I've got *so* much free time on my hands

I'm sure it's just there's a lot of work that I'm not doing, but I'm finding that I have a few stress-free moments in which to do other things. This weekend, for instance, I managed to see Fritz Lang's M, a fantastic old black and white film with Peter Lorre.

Today I checked a copy of F. W. Maitland's The Forms of Action at Common Law, at the suggestion of one of the 2Ls I've met. The law library here isn't quite as old, musty, and archaic as the Bodelian, but it's getting there, and it definitely has that same feel of thousands of books, most of which languish untouched for ages.

The book itself has a few virtues that recommend it to a starting law student. First, it covers a number of basic concepts from which modern law has evolved, even though they're not directly relevant anymore. Secondly, it's not on a syllabus, so it can be considered to be 'reading for pleasure.' And thirdly, it's quite short, so I can't feel too guilty for taking an hour out to read it.

Blue Laws

Forget about Judge Moore, the rule of law, and constitutional issues... why did no one tell me that in New York City you can't buy wine on Sundays?

I expected that in Alabama, but this is supposed to be a progressive state?

August 24, 2003

I'd Like an Arnie with Fire Sauce

OK, the most important question of California politics gets settled via Tex-Mex fast food: that's right, the Economist has the Big Mac index, but Taco Bell takes on the California Recall. "It's our way of reminding you to vote on Election Day. Sure, it's a little different, but so is this election."

Note that the Taco Bell poll doesn't even foresee a possibility of victory for Davis. For that I guess you go to Wendy's or something.

(Again, via Volokh.

I'm happy I don't go to Berkeley

Professor Volokh reports on yet another story of craziness at Berkeley. One student accuses a teacher of anti-Semitism, the other argues over-sensitivity, and no one at Berkeley is embarassed at being open-minded to the point of idiocy. To quote from the article:

Perhaps the "Protocols" was written by Jews and perhaps it was written by Russian secret police, said Kadhim, adding that he hasn't done the research to know for sure.

"This is not my expertise, this is not my Ph.D. I am not a scholar of everything. I know some people say it is a forgery and some people say it is not, but it not my job or duty to know the details," said Kadhim, 37, a graduate student in Arabic and Islamic studies [emphasis mine] and a former Iraqi resistance fighter in the curtailed 1991 uprising against Saddam Hussein.

"I never in my life thought I would be asked about the 'Protocols.' It's unfair to ask me to have a precise opinion on it. I always thought it was enough to know both sides and be open to change. It is not responsible to endorse one view or the other without the full information."

Isn't anybody at the university ashamed that someone who purports to be a graduate student in Arabic and Islamic studies is admitting to being so ignorant of the origins of a text that, elsewhere in the article, he admits to having been taught in school in Iraq? He never thought he would be asked in class about the Protocols of the Elders of Zion? When he's talking about Arab culture and one of the big hot-button issues in the last year has been the Egyptian decision to screen A Knight Without a Horse? What alternate world does this fellow live in?

But the more one looks into the incident, it's just disturbing on both sides. Kadhim's view of 'rational ignorance' is bad enough--teaching Arabic culture and not having a view on the Protocols would be like me teaching Japanese and not having heard of the Rape of Nanking. In a letter to Volokh he proclaims that "As you know, this issue of authenticity and the identity of the author -- or authors -- of the Protocols has not been settled between the Middle Eastern disputants (that is to say, no one said to the other, 'you are right.')." Maybe my own knowledge is incomplete, but I was pretty certain that outside of the Middle East (and it's not a Middle Eastern document, it just appeals to popular prejudices there) the matter was pretty well settled.

But Volokh presents both sides and the other side is pretty ugly too. His accuser, Susanna Klein, is hardly a model of intellectual tact and comity. You really can't take seriously someone who thinks it appropriate to spit in people's faces at a political rally.

All in all, it's just a depressing incident. One wishes that Berkeley's dean would write his teacher telling him to do some reading, and his student telling her to grow up. Berkeley campus life is never going to be lived according to Debrett's, and I understand that, but this is something that serious scholars, serious students, and those who truly care about political thinking should view with disgust.

Coming to you via pirate signal

Incidentally, the last two entries have been brought to you courtesy of someone's wireless network, which they've left completely unsecured. While the Malebolge's wired ethernet access is still gestating (we have wires now, but no service, a hellishly frustrating tease), someone in the building is not only using Linksys, but broadcasting that fact to everyone on my floor.

I'm trying to figure out who this person is and send them a message to lock down their wireless network, but I'm afraid this exceeds my skill. I don't suppose one of my readers might suggest a solution? I've been playing around with NET SEND commands, but of course his computer isn't on my workgroup.

There's a ship lies rigged and ready in the harbour...

One good definition of a romantic:

One who knows that if he's heard "The Last Farewell" on a dance floor once, he's unlikely ever to hear it again in his lifetime.

One interesting thing about all the law school 'meet and greet' events that we've been having is that, given the vast difference in ages among the student body, the music seems necessarily mixed. So far most events have had some uncomfortable combination of things from the eighties to new stuff from the naughties, usually settling down to some kind of fairly recent hip-hop. Not being a big fan of such music, it usually means I give the dance floor a wide berth.

August 22, 2003

Bloom County is back

They've brought it back. Bloom County, the strip that beat Doonesbury hands down back in the 80's and 90's for pure fun satire.

See the Ucomics.com Bloom County page, especially if you're too young to remember it the first time around.

If I can find an even plausibly legal RSS feed for this, it'll be appearing on the site.

Did you look behind the cushions?

I should know better than to blog while in a bad mood, so I'm not even going to touch on such matters as the Diversity Reception here at Columbia Law School. (No, I don't like diversity, as the term is generally used in such things, but you have probably had your fill of my Grutter posts.). Besides, while I may not like such things as a matter of policy, it's unrelated to anything at which I'm actually annoyed. But as long as I'm venting:

Today in Legal Methods, I found myself defending a very strict interpretation of the Federal Railroad Safety Appliances Act of 1893 (Section 2), which reads:

That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

Now, the Supreme Court, in Johnson v. Southern Pacific, announces what is undeniably true--that the legislators who wrote the bill undoubtedly meant for the text to have a comma after 'uncoupled', which would apply the 'without the necessity of men going between the ends of the cars' language to coupling as well as uncoupling. But as I see it, the intent of a legislature isn't read from what the individual legislators said they meant, but by what the legislature actually passed.

So I ended up making the point that by inserting the comma, the Supreme Court actually changed what the law meant, and I didn't think it was proper for them to do that. [1] True, it's very technical, and most members of Congress undoubtedly meant for it to be read as if the comma were there--but it wasn't.

Back at home, I had to start pondering why I felt such revulsion at a comma. Finally, I settled on the fact of that comma being a simple single step towards one of my real annoyances in constitutional law: the 'penumbras and emanations' that are found by 'realists,' particularly in the Due Process clause.

One day I'm going to write a stage play about the Supreme Court Justices, and it's going to have a section that includes this:

JUSTICE KENNEDY: Hmm... so, is there a right to homosexual intercourse? Let us look in the penumbras of the Constitution. Hmm... not there. In the emanations? In its pencil case? No. Let's see, where else? Have I checked behind the Constitution's couch cushions?... a lot of rights have seemed to fall between the cracks there...

I've been told that textualism is a pretty lonely road, especially in law school. Maybe I should just hope it's some kind of mental infection that will go away...


[1] I didn't get the chance to say that for the sake of that case, I don't think it mattered--while it didn't explicitly say, I somehow doubt that the cars that didn't couple automatically would come apart without need for a man to go between the cars.

Those who do not learn history are condemned to go into engineering...

There's been a lot of navel-gazing recently, both from the right and the left about how we're failing in the war in Iraq. My old friend Martin never ceases to inform me that my belief in the analogy between nation-building reconstruction in post WWII Japan and the present situation is naive, and that it's all gone horribly wrong.

It's depressing to be right about uncheerful things, and so far my contentions that the 'peace processes' in Ireland and Israel would have neither peace nor process (a view I've held consistently since Oslo) have turned out to be fairly correct, with respect to Ireland at least inasmuch as the situation is not over. (I still think Ireland will begin breaking down more dramatically in the next few years.) So perhaps I can make a prediction a little more pleasant in nature:

By 2008, Iraq will be a stable, multi-party democracy in which women will have the right to vote. This democracy will look to the United States as its 'founders' with a certain amount of respect, although forces (primarily on the right) within this democracy will be busy rebuilding 'cultural' features of the prior order which had been forbidden during the occupation.

I say this simply because, whilst Martin keeps telling me things are going so much worse than during the Japanese occupation, I'm not so certain. While we're missing a MacArthur figure, certainly, I'd say that's about it. We're still in the first year--in the analogous case families were still scurrying out of cities to live with relatives in the countryside because they could be assured of some small amount of food; the script of the country was going to near worthlessness in an engineered hyperinflation; and a good part of the security of the city of Osaka had been devolved to the yakuza.

Indeed, if there's anything that might cause us to fail in the endeavor, it's not George Will's accusation of 'arrogance,' but rather a lack of ambition. Those men who, under MacArthur, broke down the zaibatsu, reformed the ownership of land, and instituted a system of government completely foreign to the 'feudal' ideals that pertained before the war were not timid men. In this case, if we set out to reform Baghdad, we must reform Badhdad.

August 20, 2003

He's Been Terminated

Man, I need to get to work, but I had to blog this.

Michael Dorf writes a hysterical column today on "Why Federal Law May Keep the Terminator off the Air Until After California's Recall Election." The basic jist is that due to an issue of FCC regulation, any broadcast TV channel showing an Arnie movie would have to give 'equivalent airtime' to each of his (one hundred thirty some and counting) political opponents. That would take about ten days.

I only take issue with one point:

One perhaps might argue otherwise. Granted, an airing of Kindergarten Cop, in which Schwarzenegger plays an affable undercover police officer, or Terminator 2, in which he portrays a benevolent cyborg sent from the future to save humanity, could boost his standings in the polls. But in the original Terminator, Arnold is an evil robot sent from the future to destroy humanity. Perhaps his electoral opponents would actually benefit from repeated showings of the film.

Actually, I'd put it the other way around: the original Terminator was a good film, the others were pretty lousy, especially the awful Kindergarten Cop. But by my argument, Arnie's latest role in T3 might beat the Labour Party's famous manifesto as 'the longest political suicide note in history.'

So now all we need is for someone in California to nominate the following for Governor:

  1. Jim Carey
  2. Barbara Streisand (should be easy to convince)
  3. The Red Hot Chili Peppers
  4. Yahoo Serious and Carrot Top (joint ticket)

Anyone else got some nominations? Congratulations to the FCC for having figured out how to constitutionally reintroduce a Hollywood blacklist! With any luck, by September all that will be showing on TV are news programs and Merchant Ivory flicks.

Back to Law and Politics

There's been a lot of commentary on Judge Moore's refusal to remove an absurdly heavy monument to the ten commandments from his courtroom (one convenient source is at the Yin Blog, but I think my entire blogroll has said something about it). I feel obliged to comment about it, since I'm a former resident of the great state of Alabama.

And all I'll say is that it's nuts like this who make Alabama the crazy and wonderful place that it is to live. I mean, we can get all bent out of shape about whether he's following the law, violating the Constitution, and all the other matters of great import. Or we can say, more reasonably, "This is Alabama. What do you expect?"

I mean, this is the state that's left a (patently unconstitutional) law on the books banning sex toys. It's a state in which the matter in controversy is a monument to the ten commandments weighing more than all the cars I've ever owned put together. I reserve a little soft spot in my heart for the place, if only because it gave me a good education whilst surrounding me with the quixotic, if not Chestertonian, company of people convinced they were doing right in the strangest of ways.

Class choices, goals, law review, and your moment of zen

There's been a lot of discussion in the introductory period here about why we should pursue law school, what we should study, and how we should behave. Most of these have been some very good advice: don't be too competitive, be kind to others, get lots of sleep (doing well at that so far, actually), and learn for the sake of learning--you'll have time later to do courses to pass a bar exam.

This last reminded me of a zen riddle of which I'm quite fond, from a tsukubai found at the Ryoanji Temple in Kyoto. (A tsukubai is a small well or basin, shown below.)


(From http://www.htokai.ac.jp/DA/hvass/seminar99/ryoan-ji/ryoan-ji_main.html.

If you look at the well, there are five characters around the box in the center. Taken clockwise from the top, they are the characters for five, an old character for bird, what might be close to a character for 'to stop' but is probably meaningless, and the character for arrow. Taken this way, it means nothing.

However, Japanese (or, more properly, Chinese) characters are sometimes formed from the combinations of simpler characters, and the key to the riddle is the pay attention to the box. (A square character in Japanese, 口, means 'mouth.') If, for instance, you form a character by combining the word for 'five' (the top symbol) with a box, the resulting character is 吾, or ware, meaning "I." The real meaning of the tsukubai, therefore, is 吾唯足(を)知(る), or ware tada tare wo shiru. Loosely translated, it's "I learn only to be contented."

It's a particularly zen phrase, in that there's a constructive ambiguity leading to two, both applicable, conclusions. One is that one should only learn contentment--anything else, or at least anything learned without contentment, will not lead to happiness or enlightenment. The other meaning, however (it involves changing the wo to a ni, which is possible) could mean, "I learn only for the sake of contentment," sort of learning for learning's sake.

I doubt that's really helpful to anyone trying to learn about the law, but it's a lesson I sometimes keep in the back of my mind when things get too hectic. After two nights at the library until 10:30 PM, I can use a little zen.

August 19, 2003

Freddy v. Jason

You know you've been doing to much work when you look at an advertisement, miss one letter from the text, and immediately think, "That would make a good legal brief." With no further ado:

Freddy v. Jason
Supreme Court of the State of California, 2003

The Parties
Mr. Freddy Kreuger: Damned soul intent on revenge upon the children of Elm Street
'Jason': Deranged man of no fixed address, assumed to be fixated on hockey and farm implements

The Procedure
Verdict was entered in favor of Mr. Krueger. The case came before the Supreme Court when 'Jason' did not so much appeal to the intermediate appelate courts as chop the three judge panel into interchangeable parts.

The Facts of the Case
Mr. Krueger claimed that as a matter of common and traditional law, he was entitled to a monopoly upon maiming, mutilation, and murder of the children of Elm Street, up until the seventh generation or the twenty-third sequel, whichever was to come first. He alleged monetary damages and requested an injunction against 'Jason' to prevent any further encroachments upon his domain.

The Legal Issues

  • As a matter of common law, does an oath of vengeance made just before being burnt to death entitle one to a legally enforceable monopoly on maiming, mutilation, and murder, or is such an oath enforceable only directly by the one so sworn?
  • As a matter of common law, does having a greater number of sequels and a greater body count entitle an 'agent of greater evil' to concurrent claims to territory, even if there is no reason (other than box office necessity in the silly summer season) for a territorial overlap?

The Holding
The court held for the plaintiff, on two grounds:

  • First, that it was in the interests of the state of California (and most particularly in the interests of the three judge panel ever getting a good night's sleep again) that oaths of vengeance be enforced 'up unto the extent practicable under the law.'
  • Second, that any claim of 'concurrent domain' was untenable due to the mask of 'Jason' having been worn by several different actors, each to whom the body or sequel count in question should be attributed.

Any comments from the peanut gallery? (Man, if my law professors read this I'm never going to be able to hold my head up again...)

August 18, 2003

OK, maybe that work estimate was a bit optimistic...

OK, maybe thinking that getting to class early would make it easier for me to quit early was a bit ambitious. It's day one, and it looks like I'll be up until ten or eleven trying to balance the workload.

The class today was quite interesting--obviously a bit softballed since we're all new, but nothing to horrible happened. Just for the record, my first classroom comment was to ponder whether someone who was dead might in fact still be considered entitled to vote (since he was still on the roles), but merely inconvenienced from doing so by dint of being in a box. Probably not the way I wanted to be introduced to my fellows, come to think of it.

But maybe I was inspired by G. K. Chesterton:

Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man's opinion, even if he is our groom; tradition asks us not to neglect a good man's opinion, even if he is our father.

August 17, 2003

Not for the unsure of stomach

I've had a few people mail me and say, "Tony, you've always been picky about your kitchen, I'm sure you're exaggerating the state that Hell's Kitchen's in." So, before the super has his folks clean it on Wednesday, hopefully with tactical nuclear weapons, I figured I'd show you what a lair of minions to Beelzebub the place really is.

First, there's the refrigerators. Note that the box of eggs that you can see in one of these pictures expired in June. (We threw away the ones from February and March, but these might in theory have belonged to somebody.) And there's the impressive collection of moldy gunk on the surfaces...

Stuff from this fridge is gradually dripping on the floors...

Now, near as I can tell what happened here is someone spilled soy sauce on a bag of sugar, and it dissolved the bottom of the bag. This looks like a petri dish, and the image doesn't do it justice--there's little things of black mold growing in the goop that you can't see here.

The counter. In fairness to the cleaning staff, twice a week they do clean the surfaces, though not around anything that's left on them. This includes the pan of one of my floormates. Near as we can tell, he cooks with it each evening but never cleans it, a practice which means that when it's heated, it stinks to high heaven.

And finally, the crowning glory. The two big butcher's knives, complete with whetstone, hidden in one drawer for no readily discernable purpose.

Again, in fairness, I've been told this will be taken care of by Wednesday, which would be nice, because then I might be able to use my frying pan and lovely new set of dishes.

OK, off to bed. First day of classes is tomorrow, so I ought to be asleep by midnight.

Classes: The Good, the Bad, and the Ugly

There's a pretty good reason your correspondent plays poker rather than the lottery--when it comes to things that are just luck of the draw, I do pretty awfully. To whit--my class list:

The Good: I got Chirelstein for contracts, which I can only consider to be good. I read his book over the summer and truly enjoyed it. Nicely, his book is not on his own reading list, which means I'll get a few more perspectives. No downside to this so far.

The Bad: In your fall 1L term, there's a couple of 'large' classes and a 'small' class with fewer people. I'd really hoped that my small class would be civil procedure (which I like but don't understand as well as I could) or contracts; instead, it's torts, which isn't my favorite area of law. Who knows, it may grow on me, but that's going to be a challenge.

The Ugly: Oh, that torts class? It starts at 8:30 AM three days a week. True, I used to show up at that time or earlier when I worked in London, and it means that I may be able to quit working by six or seven in the evening--just like someone with a 'normal' life. Being awake and sharp about a subject for which I doubt I have as much aptitude brings back nightmares of those awful 9 AM classical Japanese tutorials.

(Likewise, my Wednesday run will now have to start at about 7 AM. Ah well... it's discipline.)

Of course, I'm blogging this so that in December when I'm cheerfully telling you how much I love torts, and how contracts wasn't what I expected, you can just link back to this entry in your comments...

Lemons and Lemonade

So my dorm doesn't have a kitchen you'd want to cook in, or indeed enter. Never should I let that stop me from having healthy meals, enjoying the cooking I do, or entertaining my fellows. In the bottom of my 'mini-kitchen' in the HFMD now sits salt, pepper, oregano, olive oil, some relatively good basalmic vinegar, and other dry-good spices. Next stop is to get a small basket and a wok.

The plan, as enacted for the first time yesterday, is to convince folks who have apartments to let me come cook dinners for them. They get prepared food, I get to cook, and so long as they chip in for their part of the groceries and do the dishes, I don't mind. Now I just need to figure out how to convince more people this is an equitable arrangment.

Last night was salmon poached in white wine, lemon juice, and spiced rum--a bit extravagant, but it was a Saturday night.

August 16, 2003

Booklist

Well, I've now decided to order my books through Amazon, since the thought of using the University Bookstore, busy as it was this morning, was just too much. Besides, several of these books are nicely 'paired' at Amazon, so you get a discount if you buy both of them.

You can find my booklist here, and as the title says, if you buy through the site and Amazon actually pays me something back, I'll hand over whatever I get. I really don't want to make money off this site.

Update: The Farnsworth book on copyrights seems to be the one sticking point in this plan--it's the one that seems most likely to delay the order. I'd recommend to anyone considering buying online that they check which books are most readily available, and buy the others from the local bookstore--otherwise there's a risk the books don't arrive in time.

The New Hit Movie: Law School Monk!

Yes, it's the new hit movie: Law School Monk!...

This was my thought as I stepped into the shower and wondered at the mystery that is the dormitory water system. Sometimes it takes up to ten minutes for the water to warm up in the shower up in the Malebolge. For most of this week, my patience has run out before my fear of discomfort, and so I've endured some shockingly cold showers. The days I shave my head, the water's gotten warm enough to do so just about the time I'm done getting cleaned up. My roommates must be amazed at these thirty-minute showers, but honestly, I wait about ten before I grit my teeth and brave the cold.

Ah well. My old tutor used to mumble about the cold showers he endured back in his public schoolboy days, and how they built character. So here's a thought: how's law school like shaving one's head? If you're going to start out, make that first shave down the middle, because once you've done that, you'd look a right fool to back out.

August 15, 2003

It was full of stars...

As most of the rest of the world knows, a lot of the eastern seaboard, including the island of Manhattan, was blacked out last night. I've still not been able to figure out why, mostly because I've been trying to do my law school reading and failing to find a newspaper. (This not having net access in my room is truly lousy.) I'm typing this quickly in a friend's room, so I'm not going to go searching CNN to figure it out.

Last night was... well, a wonderful disaster. It cut short our lecture on financial planning and how the one hundred thirty-some thousand I'm going in debt is an 'investment.' Since most of this seemed obvious to me (admittedly, I'm a personal finance junkie) I didn't miss it, but the downside is I've still not gotten my loan checks. So I'm a poor devil.

Then passed a number of hours of total cluelessness, trying to figure out what was going on. Mostly, I hung around with some friends and fretted about dragging my notebook bag and the lovely Columbia University Law School bag of stuff (total haul of variously-branded mugs: 3) up eight flights of stairs to the HFMD. Then I met up with a lovely classmate whose problems were much more serious than mine: her fiancee was supposed to be at JFK airport for a flight to Budapest that Northwest airlines was doggedly insisting would leave on time, at least if you called the only source of information available, their automated 800 number.

Cue myself, another 1L, and these two deciding he'd not be able to go and lugging three suitcases up eight flights of stairs. Follow this with him getting nervous, and me (having the only working cell phone) calling parents, ex-girlfriends, old contacts, and anyone else I could to try to answer the simple question "Is JFK even bloody open?" And finally, we get him on a cab to the airport (that's another trip down the stairs, again heavily-laden), only to have him walk up to us at a bar forty minutes later--his flight was, predictably, cancelled.

So, there was much drinking at Nacho Mamma's, much grumbling about planes, and the wonderful sight of Broadway on a night in which you could see the stars. New York is a wonderful city: someone dressed himself up in Christmas Lights and wandered down the streets, the police were out in force (although someone ransacked the local Radio Shack, showing incredibly poor taste in burglary), and we all wondered what would happen tomorrow.

The power came on about 6:45 in my room, and the air conditioner returned to blessed functioning. And what happened, it seems, is that Columbia closed down for the day and our orientation events were cancelled. Whether that means our course schedule on Monday is now invalid, I don't know: we've not had our second day of events, but I doubt we'd miss it much. I spent most of this morning trying to find and copy necessary course materials from those lucky (or foresightful) enough to have picked them up before the blackout, since I think that Monday we'll just start our courses.

Life doesn't look like it's ceasing to be interesting. (Although the best line of the night was a security guard in my dorm, when I asked if I could go up on the roof to look at the stars. "No, you can't go up there--you might decide to jump off." I find it inspiring that he feels I'm enough of a hard guy that jumping the seven-some stories from my window wouldn't do the job.)

August 14, 2003

Dorm Life and Other Distractions

While a lot has happened over the last week, I'll start out by filling you in on life in my dormitory (nicknamed The Malebolge). Last night I officially finished 'moving in' to my room (The House of Fire and Motions to Dismiss), since each and every thing now has a place. We'll see exactly how long this organisation lasts.

I'll put a full description and pictures in the extended entry below, but as a rough guide I've got about 14 square feet, now full of my own mini-kitchen, a corner desk, more electrical equipment than the wiring can probably hold, and a bed which is... servicable, if not incredibly comfy. I've managed to get it decorated since I've been here, so it doesn't look horribly empty. The kitchen, however, should be either condemned or cleaned with acid.

I've also had time to visit some other students in their apartments, which answers the question: what's so bad about the dormitories? Basically, they're fine in and of themselves, but the apartments are so much better. One friend lives in an apartment with one roommate, and between them they have two bedrooms, a parlour, a front room, a dining room, a kitchen easily the size of the one on my floor, and a nicer bathroom. For $100/month more than I'm paying, it's a great deal.

Anyway, if you want to see what my domain now looks like, just click below.

The Room Itself
So, first, the view from my doorway. You can see my bed, some paintings, a collection of masks, and the fact that the room is generally quite large.

Next, the 'kitchen.' As I mentioned, the kitchen in the dorm is an utter disaster. I and some of my new hallmates looked in the dorm kitchen and found that there were eggs that had expired in February, which even for my sulphurous disposition is a bit extreme. So I've invested in a microwave ($10, bought from some 2Ls who were upgrading), a fridge, and a nice coffeemaker, and for most food trips I'll need only visit Hell's Kitchen to get water. (This is all arranged on the student desk provided with the room, which is way too small for my long legs.)

And finally, the desk. This is roughly similar to a desk I owned in Washington, D.C. It's wonderful, space efficient, and holds quite a lot of stuff. OK, it looks a little crowded, but no more than necessary. I'm quite fond of the chair, as well, which is pretty comfortable.

Priority purchases if you happen to be living in a dorm? Well, I'd say first and foremost an air conditioner, and then a good desk. Despite what I said about the fact that the dorms are a bad deal (you get a lot more in an apartment for just a bit more money), the place is growing on me.

The Bathroom
There's quite a few bathrooms on our hallway, two with baths and two with showers. I'm quite certain that they're growing moldy little things as I speak: they're kept in an 'ok' state of cleanliness, but nothing like what I'd hope. Again, this is the advantage of an apartment: you have to clean yourself, but you know it's done right.

The Kitchen
This is the major hellish bit of dorm life so far. There are three people on our hallway who have been here all summer, and I don't know how they've lived with it in that state. The super has said that since he doesn't know what's what, he can't do a thorough cleaning, but has volunteered that if all of us agree on a date and remove anything actually 'owned' by that time, he'll send someone up to clean it. I hope for their sake they have a hazmat suit.

It's a wonder the place isn't awash with roaches. There's one cupboard where a bottle of soy sauce seems to have spilled over a bag of sugar, and resulting mess looks like a petri dish that's gone horribly, horribly wrong. One of the refrigerators is dripping from at least two of the shelves. I'm a bit mystified as to how the three people living there over the summer have survived like this. Even if they were just willing to live in such untidy conditions, they must have the immune system of the gods if they've cooked in the place.

The People
I've met my superintendent and (I guess) the Head of Housekeeping, two very kind and helpful people. They've given me advice on just about everything I've needed to know over the last week, and made certain I managed to carry everything up eight floors to the HFMD. Whatever else, I think this dormitory has some of the most effective and helpful staff.

On the other hand, the building is currently 'under renovation', which means the front lobby looks like a bomb hit it, and there's wiring everywhere. The upside is that they're promising that sometime soon we'll get an ethernet connection--but my breath is not held. :)

Anyway, more to come. I have my course schedule and much to say about that, but in the meantime, I have an orientation to attend!

August 09, 2003

Welcome to the Malebolge

It appears that my room hasn't gotten its ethernet connection yet, and that until it does, the phone system won't work. Which means that neither the University dialup, wireless, or ethernet systems are of any avail.

I'm keeping track of everything that's happening, and it will all be posted soon, I promise: probably Monday when I get my notebook connected. Until then, I apologize for the interruption.

Incidentally: "Hell's Kitchen" would be a very appropriate name for what I found when I got here Friday.

August 07, 2003

The time has come, the walrus said

And finally, it's that time. Summer's over, the van's packed, and I'm off to New York City.

When next you hear from me, I'll be settling into the House of Fire and Motions to Dismiss, trying to see if a creaky old building can handle the electrical demands that I'm likely to make of it.

Hope to catch you all then!

August 06, 2003

In the spirit of other truly bad song's I've linked to

I figure you all might want to suffer through the parody of American Pie as it relates to Gray Davis.

(Link taken from the Yin Blog.)

I know I'm on the right side of the fight...

...when Findlaw's Marci Hamilton is on the other side:

In a culture without copyright, only the rich, or the government-sponsored, could be this culture's full-time creators. Poor artists like Loretta Lynn would have to flip burgers long into their music careers - and might even give up on music entirely.

This is quite honestly ridiculous in every way, shape, and form. The idea that without copyright as currently envisioned performers could find no way to make their way in the world, and could not sell their wares, shows a level of ignorance which shouldn't be allowed at Findlaw.

First of all, most musicians, until they make their recording contract and even for a long time afterwards, make most of their money not through fees for record royalties (which are trivial in many cases) but through fees for performance.

Secondly, she's looking at a pipeline of products and saying, "without strong copyright laws, these things wouldn't exist." But does she (or the RIAA) put forward a convincing argument for this? The country singers making 'rags to riches' stories might still be there under other business models that shall never bloom because copyright law is held in the dead hand of the technologically indifferent. In the meantime, she doesn't see the hundreds of country acts that might be there if a different system, more tolerant of a greater product pipeline, were allowed to grow.

(Full disclosure: I don't use Kazaa or Napster because I don't like the idea of breaking the law, but I'm willing to admit this is as much cowardice as principle. Also, I'm as great a country music fan as anyone I know, although Loretta Lynn is not to my taste.)

Nevertheless, the industry continued to hemorrhage, dropping approximately 8% in sales last year. The culprits may well be the new websites, such as KaZaa, which, unlike Napster, do not depend on centralized servers.

Again, has Ms. Hamilton noticed that the good economic times are over, and that luxury and entertainment products get hit pretty hard in a recession? Has she pondered whether exposure to Napster causes more purchasing of music among users than otherwise, and maybe, just maybe, the fall in music sales isn't primarily a fault with Kazaa?

And has she pondered that, at least among students, the economic impact of CD burners is likely to be as great as file-sharing, if that were successfully suppressed? You're talking about environments that spend a high amount on music and have access to multiple ways of copying digital media. Does she really think that stopping Kazaa will cut down on the digital 'piracy' of music?

Again, I'm all for respect for the law. In an ideal world, I'd hope people would change the law, and then their behavior. But to act like copying music, in other words breaking a 'property' right that is nothing more than a created fiat of law, is tantamount to actual piracy, or even the theft of a physical object, is a moral leap that I'm not willing to make. Is this political disobedience? Yes. But are those who are making this into the death of the rights of property, or turning this into a case of 'respect for the rule of law' stressing themselves over nothing? Oh yes most certainly.

August 05, 2003

The Curmudgeon on File Sharing

The Curmudgeonly Clerk is worried that the internet populace is working on nullifying copyrights through file-sharing software, and that this kind of 'lawlessness' will be bad for the rights of property in general. I see his point, but I think he's missing a key distinction.

Copyrights are not like normal property rights. If I own a tractor, then that tractor sits there as a physical object. This isn't true if I own the rights to a piece of recorded music. I own the right not because of any physical restriction (there can only be one tractor made out of the same material) but because of a legal incentive put in place to promote the production and distribution of music. The 'property' is in this case created wholly by fiat of the law.

The current structure for music made sense in the day when the distribution of music was a serious cost. The amount of music had to be limited to what would be of 'quality' because there was only so many discs that could be pressed, only so much space in the record store. This is no longer true. While the production cost of music may not have gone down, the distribution cost may now be very close to zero, at least in many cases, thanks to digital technology and the internet.

Allowing the old system of copyrights may therefore produce economic inefficiency. First of all, the record labels may be extracting improper rents from the 'property' that they own. But more importantly, one of the technologies that should be allowing a broader range of music out into the market is being stymied. With this new form of distribution, there is less need for restricting the pipeline of new musicians, and so we should be getting a more diverse range of music, and fewer Brittneys.

Do most people know this? Well, I'd argue that instinctively they understand some of it. But even if they don't, they can see what I would consider higher than necessary rents being made on 'property' that exists only by legal fiat, and many of them are voting with their feet--or more accurately, with Kazaa. Indeed, the RIAA's new policy of suing some of the music industry's best customers will, I predict, go down like a lead balloon.

While I'm as capitalist as anyone, I'm becoming more and more convinced that the anti-copyright forces aren't going to have an appreciable effect on rights of property per se, and are merely watching the dying gasp of a distribution network that is no longer necessary and kept alive by the hand of government.

Update:
Oh, and in response to one scenario of the Clerks:

Of course, a similar argument might be made regarding books. After all, if I were to check out a book from the library, reproduce it in .pdf, and make it freely available over the Internet, I also would not have precluded anyone from the use of the work. One might make the same case for various software that is routinely traded over the Internet as well. (As an aside, it seems to me that the relentless focus on the RIAA in the file-sharing debate skews its content and the views of the merits. Software, for example, is also much traded, and focus on it might render the debate more sober and clear-headed.) So Professor Solum's distinction strikes me as being potentially very far-reaching.

The big difference between books and music is that there is a particular advantage to consumers by supporting the use of a non-digital medium. To the extent that turning a book into a .pdf might reduce the number of actual books printed, it makes sense to maintain this incentive. (Books are easier on the eye to read, more portable than a PDF, etc.)

With the exception of cover artwork (not spectacularly important to most music listeners) and vinyl fanatics (and vinyl music isn't really that subject to piracy, requiring a pretty hefty fab-plant as startup capital), the same can't be said of music. Distribution of music via mp3 is functionally the same as distributing the same track via CD--it's just economically more efficient.

I think his focus on software is also a bit misleading, in that there's an awful lot of 'benign neglect' of software piracy in the world. There's a reason that MS doesn't prosecute every household that pirates XP from an office machine, or Adobe punishes every student who uses a cracked copy of Photoshop, even though they have perfectly reasonable ways of tracking much of this. The widespread use of this software increases their returns from network externalities: that kid using cracked Photoshop isn't going to suggest to his eventual employer that, hey, switching to Paint Shop Pro is just as effective for 80% of tasks and is a hell of a lot cheaper.

In the end, public 'copynorms' seem to me well-suited to a rational perception of what the social benefits of enforcing copyright actually are. If you respect them with regards to books, you get libraries, bookstores with coffeeshops, and convenient ways of reading things without having to load up Windows. If you respect them with regards to software, you get more software--this is enough to encourage at least marginal compliance with the law. But if you respect the law with regards to music and the RIAA, you get a bundle of fat, happy music executives overseeing a distribution chain more restrictive than necessary; smaller artists with more difficulty distributing their wares and getting noticed; and enough concentration of control to guarantee that Britney Spears has enough money for her next few boob jobs. Funnily, that's a tough case to sell to an educated adult, much less a teenager.

Update: If you track the links back from Prof. Solum and the Curmudgeonly Clerk, you'll get to a very good commentary from Balasubramania's Mania, but this should give you a shortcut if you'd like it.

An Idiot Texas Governor with Folksy Sayings, Strong Religious Impulses, and a Tin Ear for Politics

My father decided that since I'm leaving soon, we'd watch a film with some legal themes in it, and chose The Life of David Gale. It's got a great cast, superb acting, and a complex plot, even if some of the directing and cinematography is pretentious in the extreme.

But it's a death-penalty film, and while not completely predictable, it's trite in one particularly annoying way. For a bit of full disclosure, I'm pro-death penalty, but I'm willing to be convinced. On the other hand, I find most death penalty advocates won't convince me. This is mostly because they have no problem with legislating through the courts, through clemency, through anything except actually convincing their fellow human beings of the rightness of their cause and carrying it through a legislature. Whatever the value of the death penalty one way or the other, the value I place on legislatures and democracy means I'm unlikely to find common cause with them.

And here's where Gale falls down. Throughout the film, there is no well-informed argument in favor of the death penalty, though there are plenty of arguments (some well-informed, some pure passion) against it. Those who support capital punishment are presented as purely vengeful maniacs, ambitious politicians, or other morally reprehensible characters. It is just as in The West Wing: it's an uncommon Republican who hasn't got horns and a tail, or who has sense to pour piss out of a boot with instructions on the heel.

For a film that is, for all intents and purposes, a walking polemic, this is a pretty serious failing. It makes it impossible to take any of the (fairly flawed) main characters seriously in their opinions. Those who wonder what conservatives mean when they speak of a 'liberal bias in the media' should remember that it's not just news media that is being pondered. It's amazing how many people I know get their information from sources that are purely 'entertainment.'

Of course, it's the old saw about Hollywood Republicans: the only thing good about being a Hollywood Republican is that one out of four of them get to be president. (And who knows, maybe two out of four of them will become governor of California.)

August 04, 2003

Confession of a Wayward Republican

I shouldn't say this in a public forum, since it's going to ruin my republican credentials, but I've got to get it off my chest. I hate Fox News. It's dumbed-down news, and having watched about an hour (or listened to it while my father watched), I found myself yelling, "Would you stop telling me that you feel comfortable with the situation in Iraq and tell me what the [expletive deleted] situation is?"

OK, I hate CNN for being dumbed-down left wing dribble, but dumbed-down right-wing dribble is no better. In fact, since I share political stripes with these idiots, it's downright embarassing.

Didn't The Economist do a TV channel for a while? How could I subscribe?

RSS vs. IBM?

If you blog, you definitely need to read about RSS and the Battle of the blogs. I'm not sure where I come down on this controversy yet, but I instinctively hope that RSS prevails, first of all because I've put some time into working with it, and secondly because the fear of IBM turning a replacement into a complex monstrosity is just too great. The beauty of Really Simple Syndication is just that--it's simple enough for non-technical users to muck about with.

But who knows, maybe the new standard will be better. For those of you following on Moveabletype or Blogger, they've thrown in their lot with the new technology. Google's own API is usable. Maybe we can trust Google and Moveabletype to keep them honest.

August 03, 2003

Filing and packing

I can't help but agree with Alice about the importance of a good filing system. My main accomplishment for the day was to weed out what documents I actually need to take with me to NYC, and what I could leave back here with my parents. Do I really need tax documents from 1999, or can they stay here?

In case anyone cares, everything is now color-coded, although the labels mean nothing to anyone but me: they're actually old files of my parent's, so they've got things like 'blue cross health insurance' written on the tabs. I know what's in there, but no help to anyone dumb enough to look through them without a guide.

August 02, 2003

Evil Prehistoric Beasties

Thanks to my fellow CLS friend who has convinced me to enter a 10K run when I get to New York, I shall now be starting school with a bit of hair, instead of my shaven scalp of monk-like discipline. How has this happened?

Today was my first practice run. The good news is that of four miles, I ran about three of it, and finished in under an hour. The better news is that I never stopped, although I did reduce myself to fast walking when willpower gave out. Not beautiful, but there's hope for a boy whose body is so out of shape he could donate it to science fiction. [1]

The bad news is that while the 3.2 miles around the lake aren't bad, the 0.4 miles going into and out of the woods where we live pose more than the usual hazards. On days like today, when the storm has flooded the forest, every type of insect imaginable decides that lone joggers are fitting feasts.

And don't you tell me to use Deep Woods Off before I go out running on Monday. Deep Woods Off isn't bad stuff, but you're underestimating the creatures I was brushing away with every step, beating my neck like I needed medication, not exercise.

What lurks out there aren't mosquitoes as you normally know them. Enterprising young paleontologists who happen upon this blog might want to contact me, because I think they might be interested in a specimen or two. At least by rumour, some of the more impressive denizens of our woodlands have gotten casting calls from Spielberg, and were only turned down because they had more talent than the leading actors.

So, I'm probably going to have to grow some hair on the back of my head. It's that, or let people play connect-the-dots with the bumps on my skull.

[1] Yes, it's an old Rodney Dangerfield joke.

Get everybody and their stuff together... 3, 2, 1, Let's Jam...

I've been doing a lot of travelling in the car lately, which means a lot of CDs or a lot of radio. For your enjoyment, the best and worst of what I've heard.

Best: Definitely Ask DNA. More music videos should be animated.

Worst: I came across this little dittie whilst driving towards Flint, MI. I was surfing radio stations, and had to stop because it was so horrible. I warn you, only click the link if you want to understand the true horrors of the religious right. Really. It makes Veggie Tales look like a coke-filled catamite orgy.

August 01, 2003

What's it like when it storms in New York?

Michigan gets great storms. Violent, passionate, terrifying things that whip the trees around you. It's taken me three tries to post the entry, because the electricity will go out for a second or two, and my notebook's battery will be just fine, but my net connection vanishes. Just a minute ago, the rain driving against the glass turned into the continual percussion of hail. When this happens at sunset, the sky fades from a muted orange to a brilliant green, before all falls into shadow.

I've always loved storms, and short of El Paso, I've found that Michigan does them best. I wonder if the New York variety will be any better.

Reality leaves its grimy little teethmarks upon my flesh

Well, it's finally happening. Today I'm sending off the housing acceptance, accepting my place in the Malebolge. I've decided that the building I live in can be called the Malebolge, and the dorm room itself House of Fire and Motions to Dismiss (or HFMD) as per Eric's suggestion. This whole "I'm going to become a lawyer" thing is now very real to me. When my stomach stops doing acrobatics, I'm sure things will start getting done.

In other news, I've applied for another credit card, and it looks like they'll give it to me. I don't really need another credit card, but this one has a good balance transfer rate. I'm considering it an important experiment:

a) Will a credit card company actually give a substantial line of credit to someone who has admitted that for three years their annual income is zero? and;

b) Will attempting to purchase an item from the Columbia bookstore (or indeed, my tuition) using a credit card branded with National Review provide the kind of ideological antimatter necessary to annihilate several blocks of Manhattan, or will the card just spontaneously combust upon first use?

I love the American attitude towards consumer credit. I'm sure that in theory the real reason for credit cards is to either borrow money or conveniently purchase items, but I've become convinced that with all the silly pictures and cobranding, the free insurance policies, and the temptations to game the system with their ludicrous special offers, they're actually a part of the entertainment industry.

Giving The Devil His Due

If you can't stand the heat... (0)
Whiskey, Wires, and Women (4)
A. Rickey wrote: And never has a duty been assumed w... [more]

Just plain dowdy (1)
Tung Yin wrote: Not that I want to be defending the... [more]

Bush v. Gore II: Update on the Taco Bell Election (0)
Ben v. Jerry: I've found my Pro Bono Opportunity! (0)
For my old web-developer friends (1)
Bateleur wrote: Nice art. And I don't know if you'v... [more]

A new form of torture (0)
Inexplicable associations (1)
the birthday girl wrote: Beautiful. Thanks for bringing this... [more]

Rule 1 of Socratic Method (2)
A. Rickey wrote: Oh, indeed, although I'd say that m... [more]

Judge Moore: Defender of Stare Decisis (5)
improbable wrote: Sorry, I can't locate it by searchi... [more]

The itinerant chef strikes again (2)
JuicyCash wrote: nice red meat lol... [more]

Wonder of wonders! (0)
What a piece of work is law! (0)
I'm never going to get any work done if I keep reading the prolific Volokh (1)
sd wrote: jsut made new blog.. sameold.blog... [more]

Because I've got *so* much free time on my hands (2)
Anthony wrote: No, no. First of all, Legal Method... [more]

Blue Laws (6)
Nicole wrote: i think that blue laws suck and the... [more]

I'd Like an Arnie with Fire Sauce (0)
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Coming to you via pirate signal (8)
Sara wrote: I'm definitely uninformed when it c... [more]

There's a ship lies rigged and ready in the harbour... (0)
Bloom County is back (1)
pootietard wrote: This webcomic has been likened to B... [more]

Did you look behind the cushions? (5)
Sara wrote: I remember that case. . . as I reca... [more]

Those who do not learn history are condemned to go into engineering... (3)
Martin wrote: I know too little about Japan to co... [more]

He's Been Terminated (2)
frankeinstein wrote: frankeinstein was here... [more]

Back to Law and Politics (0)
Class choices, goals, law review, and your moment of zen (1)
Nick & Sam wrote: This was extremely erudite and inte... [more]

Freddy v. Jason (11)
Dementiaman wrote: Freddy even being able to SCARE Jas... [more]

OK, maybe that work estimate was a bit optimistic... (0)
Not for the unsure of stomach (1)
Katherine wrote: my first day of classes is also tom... [more]

Classes: The Good, the Bad, and the Ugly (2)
Anthony Rickey wrote: I can only hope, eh? Thanks for th... [more]

Lemons and Lemonade (1)
Katherine wrote: let me know if you ever stop by in ... [more]

Booklist (0)
The New Hit Movie: Law School Monk! (1)
the Pegging Elf wrote: Why not shave your head using clipp... [more]

It was full of stars... (1)
Adam Wolfson wrote: lol. Maybe the guard just recogniz... [more]

Dorm Life and Other Distractions (3)
Katherine wrote: hope you survived the blackout okay... [more]

Welcome to the Malebolge (3)
A. Rickey wrote: Hmm... perhaps 'Advanced Legal Dish... [more]

The time has come, the walrus said (7)
the watergirl wrote: um, as for the 40 bucks, you'd be s... [more]

In the spirit of other truly bad song's I've linked to (0)
I know I'm on the right side of the fight... (2)
A. Rickey wrote: Hmm... good question. Modify Shake... [more]

The Curmudgeon on File Sharing (3)
Len Cleavelin wrote: I think that you may be in substant... [more]

An Idiot Texas Governor with Folksy Sayings, Strong Religious Impulses, and a Tin Ear for Politics (6)
yo wrote: this is a bad page... [more]

Confession of a Wayward Republican (3)
Anthony Rickey wrote: This entry is part and parcel of on... [more]

RSS vs. IBM? (2)
Anthony Rickey wrote: I can only say, regarding syndicati... [more]

Filing and packing (0)
Evil Prehistoric Beasties (3)
Martin wrote: Hmm, a friend of the family served ... [more]

Get everybody and their stuff together... 3, 2, 1, Let's Jam... (2)
the watergirl wrote: as a songwriter, i'm actually just ... [more]

What's it like when it storms in New York? (0)
Reality leaves its grimy little teethmarks upon my flesh (2)
Eric wrote: An excellent choice on the name, An... [more]

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What I'm Reading

cover
D.C. Noir

My city. But darker.
cover
A Clockwork Orange

About time I read this...


Shopping

Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'


Althouse
Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"


Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books


Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties


Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report


The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:


Crescat Sententia
Hillary II
Hillary
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Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'


IrishLaw
Homecoming
Surveying the revival
Birds of paradise


Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...


pf.org
Progress
For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming


Ideoblog
Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?


The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?


Letters of Marque
Graduation
And there we are
Oil!


BuffaloWings&Vodka
Signing Off


Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....


Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys


Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?


Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay


the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
talisman
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year


The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

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