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December 31, 2003

Change of Allegiance

As I've mentioned over at En Banc, I'm a bit wary about have associates links on this site anyway. However, one visitor to the site pointed out a bit of Amazon.com's Operating Agreement that I hadn't noticed:

You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement.

Now, I have two problems with this:
1: Amazon doesn't list this in its Associate's FAQ, but only in the Operating Agreement. This is the 'review and click here' form agreement that no one (including, it seems, this law student) reads carefully.
2: Amazon's policy isn't 'we won't credit you for items purchased through your logon or sent to your address.' I'd have no great problem with that. But this puts the burden on the associate to make sure he doesn't make a purchase. This isn't easy to do: if you test any of the links that Moveabletype makes for you, Amazon sets a cookie. Make a purchase within 24 hours, and it's likely that you're going to make a purchase through your website, whether you meant to do so or not. Bingo, possible breach of contract. Nor is there a way for you to disclaim such a purchase manually. The suggestions I've seen for avoiding this range from 'type the URL in the browser' (which doesn't always work) to 'disable cookies on Amazon.com' (for which they've got to be kidding).

So, the next step of the New Year's redesign will be a nice suggested books column in the top navigation bar, and it will use Barnes & Noble's affiliate scheme. They don't seem half so picky.

That being said, one course in contracts and one course in civil procedure leave me in awe of Amazon's associate scheme. The agreement has it all: a mandatory arbitration agreement (as with Itoh v. Jordan); an agreement to forego any kind of class-action or class-arbitration lawsuit; a venue provision (a la Carnival Cruise Lines v. Shute)... in short, everything you'd need to make certain that some small fry would never be able to challenge your big corporate badness over any decision you happen to make. My hat's off, really. I've been reading a lot of form contracts lately (though not this one--I joined before law school), and this one is the most obviously evil.

Of course, now I'm interested enough to go research whether the Operating Agreement, since it functions as a contract between a major corporation and private individuals, might be considered a contract of adhesion, and if any of these terms are actually enforceable. I can't imagine a suit would be worthwhile if it weren't a class-action, and to get there you'd have to get past two clauses of the arbitration provision and get some of the contract declared void for unconscionability. I'd imagine it would be quite tough, if not impossible.

Men at Work Again

If you see some strangeness going on at the site over the next few minutes, it's because I'm doing yet another redesign. Bear with me, please.

Update: Right, 'select your own stylesheet' is now functioning, and works in every browser I've tested it in, so long as you've got cookies. (Alison, tell me it breaks in Mozilla.) Just go up to the 'Stylesheet' button on the topbar and choose either the 'Classic' or 'The Eyes Have It' styles. More will be forthcoming (and the current ones will be improved) quite soon.

For the mind-bogglingly simple PHP-based style switcher, I have to thank Chris Clark at A List Apart.

December 30, 2003


I come home on vacation to recharge my batteries, and I know its working when I start being infected by the creative madness that is my friends and family. Last night, for instance, the conversation kept returning to two topics on which most of the table had definite opinions: Yu-Gi-Oh (a collectible trading card game with an attached cartoon that is a thinly-veiled commercial) and Dr. Phil (a psychiatrist chat show as thinly-veiled excuse for train-wreck voyeurism).

Within minutes, we'd come up with the worst idea ever for paying off my law school expenses: The Dr. Schmill Collectible Trading Card Game. Players take the role of competing talk-show hosts vying to come up with the most incredible guests, formats, and and events, while doing everything they can to sabotage the other's ratings. Forget 'Blade Warrior' or 'PokeScudMon,' this game's cards would include 'addict,' 'teenage girl in too-tight clothes,' 'single father,' and the feared 'distracting corporate sponsorship.' Decide whether you want to try to be the empathetic voyeur, the cry-on-the-shoulder TV-friend, or the Springer-style freak show!

OK, probably not half as good an idea as it sounded after a few drinks last night, but it's not like there aren't stranger games out there.

December 29, 2003

Netscape Help

Well, this is a generic cry for help with the new redesign. I don't suppose anyone can tell me why my drop-down menus work in Internet Explorer, but break in Netscape/Mozilla? I've tried adding some simple browser detection, but it's not doing me a lot of good...

Update: OK, at least on my copy of Netscape 7.1, the dropdown menus now work. I think it should work in Netscape 4.7 as well, but I don't have a development environment here. Finally I should be able to get some real work done...

December 28, 2003

The Grinch Stole Sex.com

I commented on the case over at En Banc, but I didn't want to link to the wonderful story of how the Grinch stole Sex.com from someone else's website.

Anyone who was in my torts class will probably enjoy this whimsical not-so-children's tale of sex, violence, and intellectual property conversion...

December 27, 2003

Interview tomorrow

My first legal interview is tomorrow, by telephone with a rather large law firm. It's been three years since I've actually had an interview, and I've never conducted one by phone.

On the plus side, the last time I was in a job interview, I was the interviewer, looking for my replacement at my last job. I'll have to see if experience on the other side of the table does me any good.

December 26, 2003

Posner, Gay Marriage, and Legal Reasoning

As some of you may know, I've been having several discussions on gay marriage and the interpretations of arguments in another place.

I mean to post this a week ago, after it appeared on Crescat Sententia, but since I have a spare moment, I'll do it now. Richard Posner has published one of the more well-reasoned critiques of an argument for gay marriage that you're likely to come across. Like Crescat, I'll quote the most interesting (to a lawyer, anyway) passage:

It should be apparent by now what the problem with Gerstmann's approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent (Turner v. Safly, or Zablocki v. Redhail, a case in 1978 that invalidated a law prohibiting a person who was under court order to support minor children to marry without the court's permission), and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.

This is what is called "legal reasoning," and it is hard to take seriously.

I've quite a lot to say about legal reasoning, the legal mind, and how we make arguments, and I hope to be putting that forward over the next few days. In the meantime, Posner's given me one more reason (besides opposition to the Bluebook) to like him.

December 25, 2003

Men At Work

I'm going to be uploading some graphics changes over the next few hours, so if things look a little odd, just check back shortly.

Thanks for your patience.

UPDATE: Some of you may notice that the right navigational element above doesn't work. If any of you have any suggestions, I'd appreciate the help.

UPDATE: It's not pretty, and the code is embarassing. But it seems to work. Tell me if it starts breaking. Now that the technical work is done, I'll start prettying the place up tomorrow.

Hell En Banc

For one week, starting tomorrow, I'll be guest-blogging (as opposed to merely gadflying) over at En Banc. I can't imagine what I'm going to do there, since I'm not as knowledgable as Unlearned Hand, as passionate as Chris Geidner, or anywhere near as funny as Jeremy Blachman. But they were polite enough to ask, and I've never guest-blogged before this.

For this week, Three Years of Hell will focus on the important things in life: chronicling family poker games, my brother's recipes for alcoholic eggnog, and thoughts on blog design. Politics will take a holiday En Banc.

UPDATE: First entry, The Stepford Drones.

December 24, 2003

Constitutional Law Books and Website Layout

I figure I'll try to get a bit of background over the holidays, so I've ordered the Aspen E&E Constitutional Law books, on the recommendation of some of my readers. I'll post a more thorough review later. Thanks for anyone who's put forth recommendations, and if anyone has any further advice on CrimLaw or ConLaw, please feel free to share.

Also, I'm working on a site redesign at the moment, so updates may be a bit far between. While I'm going to try to make the site more attractive, I'd also like to make it more usable, and I'd appreciate your help. If you have any suggestions about making the site easier to use, features that you like/don't like, or any other recommendations, I'd be happy to hear them.

December 22, 2003

Three Years of Hell Up All Night

I'm not getting much sleep tonight. I figured I might point you towards my shallow end of the memepool by:

Hijacking... John Kerry Style

Yes, it's another fine day for freedom of speech.

Upon hearing the news that the NRA might try to purchase a TV station (thus getting around campaign finance laws by being a part of the media), John Kerry "called on all of the candidates...[to] stand up to the NRA�s attempt to 'hijack the airwaves' with their special interest millions."

So, let's get this straight. Purchasing a television station is 'hijacking the airwaves.' I can only imagine what dinnertime in the Kerry household must be like:

Alexandra Kerry: Gee, Dad, who do we want to hijack our TV tonight? Ted Turner, or Rupert Murdoch?
John Kerry: Who do you think will have me further ahead in the polls?
Vanessa Kerry: I don't know, Dad. [pause] Oh my God! It's a Howard Dean ad! Quick, Alex, turn the channel, quick! You know how daddy gets when the TV gets hijacked by Howard Dean!

If there's any justice in the world, Kerry's TV gets 'hijacked' with Prozac ads. A chill pill is in order here.

Happy Birthday

Happy Birthday to Sheherazade, even if I am late in saying so.

So... the Civ Pro exam

That excellent novel, The Hitchhikers Guide to the Galaxy, describes the effects of the Pan Galactic Gargle Blaster as "likened to having your brains smashed out with a slice of lemon wrapped round a large gold brick."

Take away the lemon, and you'd have about the net effect of that twenty-four hour Civ Pro takehome. I never thought anything would keep me from blogging for almost two days, but that exam did it.

I spent about two hours regretting how poorly prepared I was. Then I spent the next hour getting an outline together, and realizing that a whole other week of studying wouldn't have done me any good: I'd never have felt prepared for this thing. I'm not saying the exam wasn't fair, or suitable to the course, or whatever: it was just very, very hard.

All in all, I got about four hours of sleep in that twenty four hours. By the time I was done, I was reasonably happy that I had something I could hand in. It was the requisite number of words, answered all the questions, and more or less made semi-plausible arguments for whatever it was I'd wanted to assert. I have no idea if it was actually correct, but it was words on paper. That was about the height of my ambitions by the time I finished.

The worst exam I ever sat was my unseen translation final back when I was studying Japanese, in which I was met with a classical Japanese character I couldn't have hoped to meet, and translated it as 'rose.' When I got home, I figured out that this very active rose whose story I'd been translating was actually a hawk. The part of the character that meant 'bird' should have been a dead giveaway, but oddly wasn't. This exam wasn't that bad, but it runs a close second.

Since 4PM on Friday, I've spent the statistical majority of my time in bed recovering. And soon I'm off home for the holidays, to leave all thoughts of law school behind me. Oh, except for the following:

(a) If given the choice, I'm never taking an course with a takehome again.
(b) If there's any second-years reading this who have good ideas on breaktime reading for Con Law, I'd appreciate it. My teacher apparently assigns hideous amounts of reading each night, so I figure reading a hornbook over the break would hurt me.

December 18, 2003

OK, one more before bed

I want a piece of this contingency fee:

German teenagers blow £80m in online shopping spree

That's eight-zero-million pounds, folks. Who's credit card did they steal? (Link from Monograph)

Can someone sick McKinnon on them?

And, from the idiot fringe of the World Wide Whacko, I give you: Babes Against Bush. (Warning: not work safe.) Yes, you too can now buy the cheesecake calendar working to defeat the President.

Seems they're upset by a few complaints from some conservatives. In the best tradition of 'argue against what you wish your critics were saying':

Is it because a group consisting primarily of women is having the audacity to express views that aren't in lockstep synch with your hordes of button-down establishment pundits? Is it because common people - those ordinarily without access to the power of the broadcast media - have managed to make their voices heard above the din of the propagandistic garbage your media empires peddle as news? Is it because the inevitable dissent arising from abuses of governmental, corporate, and media power is somehow painful to you?

No, honey. It's that when adults play politics, we do it with our clothes on.


Yes, that's right, the alert's so far up there, it's off the spectrum. My alarm has risen to such a pitch that dogs blocks away are covering their ears in pain, and bats are falling out of the sky in confusion.

Just another day at the Malebolge. I thought I understood this stuff: I'd put together a reasonable set of notes, compiled tests into an outline, all that good prep stuff. Then I looked at the past papers and commentary.

My only explanation is that Prof. Civ Pro not only teaches civil procedure, but also teaches a course in motorcycle maintenance, and through one of the monumental acts of silliness for which I'm well known, I accidentally showed up at the latter class all semester. I can't honestly be this clueless about the subject, can I?

Anyway, we're not allowed to use internet research on this exam, but I'll probably take the time out to blog some irrelevancies between 4PM tomorrow and 4PM Friday anyway. If you see a post that looks like gibberish (or, indeed, detailed specifications of a 1973 Harley Davidson), you know what's happened.

Update: For the person who just emailed me wondering if Prof. Civ Pro is actually good with motorcycles--no, I really am that clueless. Or who knows, she might be, but it was an attempt at self-depricating humor.

Children never learn from the mistakes of their elders

As can be observed by the fact that 80's era glow-bracelets may be coming back in style.

I don't care if they're linked to casual sex, it's no reason to resurrect such a godawful idea. Like kids need an excuse anyway...

December 17, 2003

The Filibuster uses the Chewbacca Defense?

And over at the (completely non-partisan) Filibuster, Justin Slaughter takes Orson Scott Card to task for an article calling some Democrats unpatriotic:

Shorter version: If a Democrat is elected president, the country will be destroyed.

I won't even dignify his column with a response.

Extra points for claiming the overwhelming liberal bias of the media (Apparently he hasn't read a paper, listened to the radio, or watched TV for twenty years) and writing in the Wall Street Journal!

Note to Justin: didn't you just dignify the article with a response? Or is a response in the (non-partisan) Filibuster simply undignified?

Guaranteed to Make the Clerk's Blood Boil

Linked off of National Review, Trial Lawyers Inc. attempts to compare trial lawyers with major growth industries:

�Trial Lawyers, Inc.� behaves like the biggest of businesses, as it generates cash from traditional profit centers (like asbestos, tobacco and insurance), explores potential growth markets (like lead paint, mold and regulated industries), and develops new products (like suits against the fast-food industry).

I'm sure it overstates its case (sites with small-cap typefaces aren't known for their discretion), and I'm sure the Curmudgeonly Clerk will get around to debunking the most excessive bits of it when he gets a moment.

Still, the site puts forward an important qui custodiet ipsos custodes argument that I often feel gets overlooked by lawyers. Certainly law is not an industry, but its training and practice encourages restraints on trade that would not be countenanced in any corporate field. Training in law grants many both power and access to power that is denied to those outside law's embrace.

Every lawyer who cheered when the Supreme Court struck at the 'appearance of corruption' in politics through campaign finance reform should pause and wonder exactly what impression their $200,000 pay packets give to the community upon whom they work their wonders? I have to suppress a little shudder whenever I hear my classmates, a blawger, or an attorney critique the idea of 'self-regulation' in industry. What a cold day in Hell it will be when lawyers themselves acquiesce to an independent regulatory committee which, for instance, sets its fees, its opportunities, and its employment options.

December 16, 2003

Civil Procedure: Other Men's Flowers

'I have gathered a posie of other men's flowers and nothing but the thread that binds them is my own.'
Lord Wavell, author of my favorite collection of poetry, takes from Montaigne both the title of his book and the first line of his preface. I feel substantially the same about my preparation materials for civil procedure. Not having had time to outline properly, they're a Frankensteined mess of my notes, existing senate outlines (written by students in past years), practice hypotheticals and model answers from TA sections, my study group's flow-chart (such as was done of it), and the course materials that my professor put up on the web. All this is divided into six main sections and several subsections, capped at the end by printouts of past exams. In theory, I'll absorb all this in the next thirty or so hours, and thus be ready to roll when the real exam, a twenty-four hour take home, falls into my lap.

I feel badly about this, as if I'm cramming and indexing things that I should have absorbed. Unlike my other two exams, I'm not certain I feel a mastery of the black-letter materials, although policy issues are much more fixed in my mind. Still, maybe I shouldn't feel so badly. After civil procedure, the law seems much more like an accretion of habits and traditions than anything rational or ordered. Rather like a bouquet of flowers bound over and over again by other men's thread, until finally you're left with more twine than greenery.

What an ugly image.


My brain simply will not focus on Civil Procedure. This is bad, because I'd given Civ Pro the least amount of attention on the grounds that it was my only 24 hour take home exam, and I've barely begun to review.

If any of you see me online, outside of a library, or anywhere without a Civil Procedure book in my hand, shout at me loudly. Please. I just spent an hour looking at the 2001 mock exam, and it might as well have been testing my knowledge of electrical engineering or air conditioner maintenance.

How exactly has Three Years of Hell managed to contract down to Three Days of Hell? And what is the land speed record for developing an ulcer?

WANTED: Sergeants with Literary Backgrounds

Prof. Volokh points to a Slate article bemoaning the fact that while we caught Saddam, the mission name used refers to a bad cold war flick: Red Dawn.

Volokh puts the mission name down to fondness for bad war flicks in the U.S. military, rather than any kind of overt propaganda effort. While I agree the military probably didn't have any hidden agenda in choosing the name, I suggest an alternative reason: it took so damn long to catch Saddam that the men responsible started running out of names:

"OK, we've got the targets narrowed down, we assigned units... oh hell, we need to name this thing before the brief. Your turn."

"What do you mean my turn? I got the last one."

"Bullshit. Remember, the last one was Operation Anna Karenina. You told me I couldn't name any until I got off my Russian literature kick."

"Hmm... oh yeah, you're right. We've got most of the animal ones out of the way, and there's only so many combinations of claw, red, talon, strike, and freedom we can manage. What other categories do we have left?"

"Well, let's see, we got through all the pre-Raphs... wait, did we get Elizabeth Siddal?"

"Yep. Kind of glad that one didn't go through."

"Oh hell. Let's see, we can't use presidential names... we've done great masters... jazz singers?"

"Nah. We've assigned Bob Cole on this one, and we had Charlie Coltrane on the last one. How about painting techniques?"

"Saddam could get away before anyone remembers how to pronounce chiaroscuro."

"Point. Look, how about bad 80's movies?"

OK, probably not exactly how it was, but I imagine the process at Chatterbox Editorial in trying to find a 'hook' (how to spin the best piece of good news in ages as a bad thing) to have been roughly similar.

December 15, 2003

Contracts Done. One to Go

Well, that's a second exam done. Now on to Civ Pro...

It actually went fairly well. One thing about taking mock exams is that you're inevitably taking a test for a similar course, but it's not the one your professor actually taught. So long as the prof writes the exam to the course, you'll always do a little worse on the mock than you do on the real thing.

At least, that's my take on it now.

Hacking Hatch, Part II

Some of you will remember me wondering about how exactly a Hatch staffer 'hacked' into Democratic files on the Senate Judiciary Committee. According to National Review, I was right.The judiciary committee files were merely kept unsecured, and were never 'hacked.'

NR and some stolid right-wingers would still like it to be 'news' that the Democrats on the judiciary use procedural means for political ends. I still can't confess to shock and surprise. Still, at least its nice to know Hatch isn't hiring based on an applicant's 'leet hax0r skillz.'

Press Release from the Ancien Regime

It seems there's been a horrible mistake.

Spotted on Jurabilis, the first non-English blog I know links to me.

December 14, 2003

Contracts: Code Red

A little over ten hours left to the exam. Sorry, but my normal curmudgeonly wit is in tatters. So a quick good/bad analysis?

Bad: Contrary to what I thought, I know nothing about contracts.

Good: Even though it's again raining, the wind outside my window is making hellish noise, and my air conditioner is pinging like madness, I think I'll be able to sleep. The first exam (whatever else went wrong) got rid of the jitters in the whole process.

Let's just hope I wake up on time tomorrow...

There's a World Outside These Walls...

Oh, yes, other than the Contracts exam, and the teeny little fact that they found Saddam Hussein, not much has been going on.

Some good news from the outside world, then.

Contracts: Condition Yellow

Only this condition yellow doesn't look so good.

I thought I knew this stuff. I still figure I have a pretty good grip on it. This despite the fact that upon reviewing the mock exam I took this morning, I must conclude that either:

1. Revision elfs changed all the brilliant answers I'd written to the wrong ones in between finishing the mock and opening the file again tonight; or
2. I have been transported into an alternate universe in which the law of contract is subtly different from what I thought it was this morning; or
3. That sign on sign on my forehead that says "DOOMED" in big black letters isn't violating any truth in advertising laws.

The positive way to spin it is that at least tonight I know how wrong I was this morning. Much like you can spin the bubonic plague as getting you closer to your life insurance policy.

Ah well. At least I'm not the only one going nuts. Buffalo Wings and Vodka has written his Christmas list for the Supreme Court. Even her confusing-to-the-point-of-malice opinion in Gasperini v. Center for Humanities, Inc. can't make me think that Justice Ginsberg deserves a Cop Rock boxed set...

December 12, 2003

Rhetoric and Reality

Chris over at En Banc points to this article about how Halliburton has been probed for overbilling. I can't tell if he thinks it's damning or not; certainly Howard Dean does:

"We've recently learned what many Americans have suspected for a long time -- special-interest contributor Halliburton is overcharging the American taxpayers," said former Vermont governor Howard Dean, a leading Democratic presidential contender. "Now this president is preventing entire nations from bidding on contracts in Iraq so that his campaign contributors can continue to overcharge the American taxpayers."
Ignore for a moment the fact that it's inconsistent of Dean to be all for 'buy American' if you're a steel manufacturer, but not support a similar policy for massive government contracts in Iraq. Even pass by the obvious question of why the EU, and particularly France, should get an economic windfall from a policy they bitterly opposed, absent some evidence it will be particularly useful. What are these accusations of dire overbilling? Apparently passing on the costs of a third-party contract for oil through Kuwait, and a communications error:
Halliburton's problem with the contract, a Pentagon official said, was that it failed to adequately evaluate the costs and operations of its Kuwaiti subcontractor. On the contract to operate mess halls, the official said that Halliburton told the Pentagon its subcontractor price would be $220 million. But auditors examining Halliburton's operations found that at that time, the company already had awarded a subcontract under which the cost was actually $67 million lower than that.

"You'd have to be pretty stupid" to do this on purpose, the official said, implying that it was an easy discrepancy to catch. He said he believes this was "a clear, obvious, miscommunication error" that resulted from a "disconnect" between the company's operations in the Mideast and its contracting office at its Houston headquarters.

At least that 'error in communication' is the kind of thing that happens in contractor/subcontractor situations, and why you audit. (Indeed, this has some relevance to my Contracts exam, in which contractor relationships are making common appearance.) Unless Dean has more information than the Washington Post, he's ascribing malice to what is most likely simple error.

Here's a prediction: the results of the audit will show no intent to defraud, but instead either simple errors or (in the case of the oil overbilling) a case of restrictive conditions in government contracts increasing requirements costs.

Here's another: if the prediction above is wrong, I'll publish an entry linking back to this indicating my error. However, Howard Dean will never hold himself accountable for an accusation of fraud. Nor will most Deaniacs. Indeed, finding no fraud will merely be more proof of greater 'corruption.'

Mentors, Smart Folk, and Site Redesign

For those of you who are bloggers and want to know about how to move your blog up the Google rankings, do it the way I do: watch people who know a lot more than me. (This is how to learn anything if you're not naturally inclined towards learning things. I often think that George Bush's talent of surrounding himself with very smart people is highly underrated by people who are smart themselves.) Google has a deceptively simple concept that they make into more or less an art form.

These quite smart people would be Tim Ireland, and two folks who used to be my boss--or at least higher up a nebulous chain of command than I was. Frequent visitor Martin Lloyd taught me the basics, and Steve Johnston, who has just started a blog as a google consultant, has the details of the swiftly moving subject. Watch these guys and you can't help but learn something.

Once exams are done, keep an eye on this space for some updates. The layout itself is bland and graceless, especially in comparison to some of my favorite blawgs, such as Ambivalent Imbroglio (with the cool color-switching function) or Not for Sheep (who has a knack for color schemes). Given the number of function I've added, the length of my blogroll, and other considerations, the sidebar needs revision to be close to useful.

For the moment, though, it's back to contracts. I'll update you on that before the weekend's over.

Studying for Contracts

One down, two to go. This studying thing is basically a stacking problem: how do you allocate cram-time most effectively. At the moment, I'm on 75% contracts, 25% civpro, but that mixture is become more contracts dilute with every hour.

The aforementioned metaphor is an example of why you shouldn't study contracts in the company of an organic chemist.

I'd tell you how it's going so far except (a) I honestly don't know, and (b) I can't say anything for fear that maybe one of my professors reads this blog and recognizes something that would identify my exam. That probably breaks some form of honour code, and thus isn't worth the risk. For all you Wormwoods out there, don't worry--I'll write a whole post-exam post-mortem once my grades are in and I have no such worries.

In the meantime, I've made a promise to myself that however bad my civ pro studying is going, I am going to try to get tickets to the Lord of the Rings premiere. I mean, have priorities...

December 11, 2003

Here we go!

OK, the one-page note sheet that's allowed is finished. You'd never guess what you can manage with a laser printer and small type.

I feel about as prepared for this as I'm likely to get, which is lucky as I've run out of time. The only bummer is lack of sleep: last night it rained like a demon, and the sound of raindrops hitting my air conditioner kept me awake. (Note to self: buy earplugs before the next exam.)

Time to have a good lunch and hope for the wonders of adrenaline. To everyone taking, or about to take, an exam: good luck.

Unconstitutional On Grounds of Incomprehensibility?

Tomorrow is my first Torts exam, and I can't sleep. I keep waking up. So I thought, "What the hell, the Supremes just released their newest bestseller, McConnell v. Federal Election Commission. That must be good for a snoozeathon."

It almost made me cry. After this semester, I have Constitutional Law, and this Supreme Court is not helping. Others have commented on the fact that the Supremes have adopted the J. K. Rowling school of plot development (the summary is 19 pages long). Few have mentioned the sheer Lovecraftian complexity of the decision itself--merely glancing over it may drive sane readers, particularly non-lawyers mad.

STEVENS and O'CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'CONNOR,SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA �305, and in which THOMAS, J., joined with respect to BCRA ��304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in
part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA ��311 and 318, concurring in the result with respect to BCRA �318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and �311, in which opinion SCALIA, J., joined as to Parts I, II�A, and II�B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in
part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA �323(e) and BCRA �202, and in which THOMAS, J., joined with respect to BCRA �213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA �305, in which GINSBURG and BREYER, JJ., joined.

Can we just sum up what got us this far, in 2AM generalization terms?
(1) The Supreme Court, in decisions before and after Buckley, managed to studiously avoid making bright-line decisions regarding where one could, and couldn't, violate freedom of speech. This led to further laws with sometimes smaller, but often more numerous, loopholes.
(2) Congress passed a campaign finance law that various members of the Senate knew full well had unconstitutional provisions. The bill became larded with provisions good for naked partisan advantage on both sides, and especially useful for the one political party (incumbents) that does particularly well out of revised laws. The bill itself bloomed into a monstrosity.
(3) It went back through the court system, metastasizing into a beast that only a by-the-hour litigator, a con-law professor, or a paper manufacturer could love. (I seem to recall that the District Court decision leading to this was longer than the Lord of the Rings, but might actually have had too little content for a Hollywood script.) Finally, it landed on the Supremes, who rather than shipping the whole thing back to Capitol Hill in a box with a message saying, "Call us when you stop speaking Delphic," decided to blur further whatever lines they'd drawn before this. They managed this so well that it seems O'Connor and Rehnquist may have switched sides. It's an open bet if this was intentional, or if they just got confused.
(4) Having managed to stretch the relatively terse 1st Amendment ("Congress shall make no law") into Harry Potter and the Legislation of Sisyphus, we may now look forward to several hundred lawyers on every campaign in the country searching for ways to narrow or expand fundraising and advertising methodologies to get around the new set of rules. These methods will be tested in the courts, in law reviews, and most importantly, on us every time we turn on the TV.

Oh joy.

UPDATE: Good Scalia dissent, though. If you don't feel like paging through the huge PDF, check out Crescat's excerpt:

The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come-- and always, always, with the objective of reducing the excessive amount of speech.

December 10, 2003

Aside: Sen. Paul Simon dies

Former Senator Paul Simon dies.

A scholar and a gentleman, it was also through his presidential campaign (and a small short he did on HBO, as I recall) that I learned how to tie a bowtie. Like Senator Moynihan before him, one of the fine old men that made the Senate what it was. Here's hoping for more of his like.

(Hat tip to En Banc for the pointer.)

Panic Level: Still Yellow

The mock exam, to the extent it was taken, went reasonably well. Apparently, I can spot an issue at 20 paces, and if I'm not contributorily negligent (so no drinking during the exam!), I can hit it more or less.

I'm glad I did the mock, but we only finished half of it. Prof. Torts had told us that taking a mock exam from another professor as an issue spotter wouldn't do us much good, and 90 minutes into the event, we gave up. She was right. Oddly, this was a failure that brought confidence: she'd told us so, and being right in this, it's likely she's right in saying we're prepared for what's to come.

I tell myself that, anyway.

Also, I hope my examiners have a sense of humor, since I seem incapable of writing in a completely dry style, especially when dealing with dogs called "Newt."

Preparation, on the other hand, is an absolute disaster. We're allowed to bring in a one-page 'cheat sheet' with notes on both sides. Mine isn't finished yet, so it's a 24 hour review project. I'm certain this wasn't one of those things I meant to leave until the last minute...

December 9, 2003

Panic Level Yellow

Torts outline still not done. There's a review session tomorrow and I'm doing a practice exam, so we'll see how it goes.

With a little over 48 hours remaining, there's a conversation going on in my skull, roughly like this:

Mr. Nervous: You can't remember the standards for res ipsa loquitur by heart. You've not even started mock-examing. You slept in this morning, and your compatriots didn't. They've probably gotten a whole week's more study done than you have.

Mr. Cool: Nope. I haven't done any of those things. Now shut up, or I won't be able to. Isn't there some bad Jim Carey film you should be in just about now?

Mr. Meditative: [chanting over them in the background] It's law school, not life. It's about mastering the facts, not outpacing your fellows. Being a good person comes first; being a good lawyer comes second.

Mr. Nervous: [staring at Mr. Meditative wildly] Oh, shut up, you f---ing hippie!

Tomorrow it all comes to a head: anything I've not learned by then doesn't get learned. Then one more day to review. Then it begins.

December 8, 2003

Blink and you miss it (Pointless consumerist post)

It's December 8th already. Christmas is coming.

I haven't written a list of the gifts I need to buy. I've not even thought about Christmas, beyond booking my tickets home. I don't know what my Christmas budget is. (My MS Money accounts are over a month out of date--I don't know what my budget is anymore.)

I made it through today without panicking about exams, but having just realized this, there's a horrible feeling in my stomach. I'm OK with law school and behind on life.

The Barnes & Noble link to the right is there because they deliver faster than Amazon, so if I need to have gifts delivered I can try there. I've spent the last few minutes thinking about what I need to do for the holiday period.

And right now, I'm promising myself that however things go on Thursday, on Friday morning I'm going Christmas shopping.

December 7, 2003

Status Report

(More personal than political today, so if it's not your cup of tea, I recommend today's George F. Will article in the Washington Post.)

With a little less than three days to my first exam, things could be better, but could be worse. You can see the Exam Watch countdown to the right, accurate to within four hours because I didn't compensate for time zones in my programming. Breaking them down:

Torts: Probably the weakest match between my skills and my courses, I've put off dealing with this until necessary. I'm still outlining negligence, quite a few days behind schedule. Still, it's beginning to come together, and by Tuesday I should be doing what I can to prepare. Annoyingly, this is my first exam of my first year of law school, and there's no practice exams available: Prof. Torts is in her first year teaching. (She's done admirable work to compensate for this by giving us significant review/tutorial help, but it still does little to exterminate the butterflies in the stomach.)

Contracts: Outline and review notes almost completed, and I did some mock-examing yesterday. I'm either doing quite well or incredibly badly, since there didn't seem to be that many issues in each of Prof. Contract's questions, and those there were I could analyze without much trouble. Given the amount of time I've got to prepare, I'm not sweating that hard.

Civ. Pro: I've done the least preparation for this, but it's a one-day takehome at the end of my exam period, so I'm still feeling OK about it.

Time Schedule: The time schedule's looking strange, since I'm working mostly from about noon to about midnight. Still, it's when I'm most productive.

Work Schedule: My project plan says I'm 6.5 days behind schedule and will be OK if my exams start when they end. I know enough from my days as a project manager not to get too worried when MS Project says 26 hour days are necessary.

Health, Sleep, and Happiness: Oddly, I'm still feeling pretty positive, despite the occasional gripe. I'll tell you on Wednesday whether this is a result of rational and composed sanity, or if I'm ending my weekend still in denial. It helps that I've set sane deadlines, established pretty low standards of success, and spent as much time talking with friends as I could reasonably spare.

December 6, 2003

Left Deploys the Googlebomb

How cute. A collection of left-wing authors and bloggers have decided to break out the Googlebomb.

(A Googlebomb is essentially link manipulation of commonly-indexed blogs, websites, etc. in order to achieve a certain result. In this case, go to Google, type in 'miserable failure,' and click "I'm feeling lucky.")

Simpleminded and foolish would be the two best words I can think of in order to describe this, but I guess someone thinks it's cute. And of course, since the phrase used to belong to Dick Gephardt, it probably reduces his exposure very marginally.

Before this little round of mutually assured destruction escalates beyond control, I'd like to call on my fellow right wing websites not to push our little red buttons. Right now, Google works as a resource, but every conscious manipulation like this will detract just that extra bit from its accuracy. Right now, this hardly matters, but what happens when this becomes commonplace? It's not worth tearing down this institution for a few cheap laughs, even if you've really got your hate on for somebody. (Come to think of it, there's not really a Democratic candidate on offer worth hating.)

Besides, we can always get our enjoyment by watching the frothing at the mouth of those who think this is particularly amusing.

And if you're one of those who find the Googlebomb a work of genius, well, maybe you'll enjoy the I Hate Republicans Song. The "Bush is a Nazi" theme has become so much a part of polite society these days that I can't even get upset about it any longer. (Link found at Bloggerheads.com, who finds this stuff 'thought provoking.')

December 5, 2003

Hacking Hatch

It appears that a Republican staffer hacked into the files of Democratic committee members in order to leak confidential documents on the Democrat's judicial confirmation strategies.

The majority of my training in systems administration came from the time I spent working in the U.S. Senate, so I'm watching this with interest. None of the stories I've found so far have the technical details of how this was done, so I can't sensibly comment. All I can say is that the sysadmins in the Senate were normally working hard at a difficult job, and I'd not be surprised if someone made a network share accessible that they shouldn't have.

(Yes, that wouldn't excuse a staffer who leaked the memos instead of alerting the SA that security was compromised. And it might have been deliberate 'hacking,' in the sense of an actual stolen password or trojan horse or something. I don't see it as likely, and my immediate if uninformed guess would be that someone took advantage of a barn door left open.)

If this happened because some non-partisan SA was negligent, my heart really goes out to him...

UPDATE: An astute commentator pointed me to this Opinion Journal article.

A statement put out last week by Mr. Hatch's office says that the accused staffer "improperly accessed at least some of the documents referenced in the media reports." That accusation bears scrutiny in light of how the committee's computer system is organized: Until Nov. 16, all Judiciary staffers used the same computer server and had access to a shared drive, a system put in place when Sen. Leahy took over as chairman in 2001 and hired his own IT staff.

The Leahy techies neglected to put up a firewall between the GOP and Democratic staff, making it possible for all staffers to read everything posted on the shared drive. No one hacked into anyone's private files. These are, in effect, Leahy leaks.

So why is the hapless staffer being hounded? And why is no one reporting the much bigger story of the memos?

Now this I buy. I don't know much about Senate committee IT staffing, but it sounds a lot more plausible. The term 'firewall' seems rather odd there, implying it might have been one server and two networks, but this sounds a lot more like a garden variety leak: someone left information in a ludicrous place, and someone else (acting unethically) gave it to a third party to publish. And I'm betting some poor SA takes the blame at some point.

As for the Opinion Journalist's question about why no one is paying attention to the 'bigger question' of the memos? It's not that big a deal. The fact that a Democratic staffer might have stated "most of Bush's nominees are nazis" is not great news, though it's tacky. (One does wonder if the staffer who wrote that will get similar castigation to Trent Lott.) The memos themselves are a pretty damning indication that Washington politics are crass, and delaying a nomination in order to specifically affect the outcome of a court case doesn't pass the stink test. But I don't think there's anything in the memos that surprises me. (For what it's worth, you can find the memos here.)

But then again, if the 'hacking' amounts to someone cutting and pasting files off a badly-secured server, I doubt this goes down in the annals of the great leaks of the Senate, either.

Greetings, New Readers?

I'd like to say hello to some new readers, and wonder if I've just gotten linked from somewhere?

This site normally gets about 700 or so page requests a day, give or take. But on both the 2nd and 3rd of December, there were over one thousand page requests each day.

I'm not sure what explains the spike, but to my newer readers: welcome. (And if you're looking for the Paris Hilton tape, it ain't here.)

December 3, 2003

(Mile)Stones in the Road

Far sooner than I would have suspected, the last day of our first term classes arrived. My little countdown clock, off by a couple of hours anyway, is ticking rapidly to a close.

Each of my profs wrapped up their subject matter, wished us the best, and received their applause. Two classes were shorter than normal--I think we were either too little prepared or just too shell-shocked to take up the allotted Q&A time--and one ran a little over. Whatever, I just haven't gotten used to the idea that nothing new is forthcoming, that everything is now preparation for the exam.

It's a different point of view from my undergraduate years, in which all knowledge was cumulative, and everything led to one enormous set of final exams that could test anything in the course. In studying for those exams, the first textbooks I ever used were still relevant, and my first days reading Japanese history formed building blocks for my last.

I feel this is more discrete and packaged, which is no better or worse, but quite different. More to the point, I feel as saddened by the thought of this ending as I am apprehensive of the exams to come. So much of this term was just struggling to understand not what law is, but what law school is. I'd be better prepared now if my class notes from September were as good as my notes from the last week. So much of what I thought or assumed in my study practices are not in fact what I needed. It's not entirely a point for despair--I'm not doomed--but just a vague feeling of regret, of not having done enough, or not having done what has been done well. It's a highly-condensed packaging of the idea that youth is wasted on those without the experience to appreciate it.

Exams are coming, and comment may get scarce for a few days. Then again, blogging is one of my ways of centering myself, so you may get tired of my yapping. In the meantime, I shall descend into outlines. Via my friend at Ambivalent Imbroglio, I give you Mixtape Marathon's poetic description of the highly condensed evil contained therein. More practically, I give you Scheherazade's Study Tips for 1Ls, which are practical as much for keeping you sane as for passing your classes.

December 2, 2003

Chocolately Goodness

A brief diversion in my server logs reveals that the ninth most common google search leading to this site, with 29 hits, is Chocolate Tort.

Better still, the number one most-common spelling error leading to my site is actually my most common search engine referrer: Freddy v. Jason.

Strange place, the web. Even worse, my ignorance is now on show to the world: I appear to be within the top ten results for Paris Hilton videotape download.

Comments and comment fields

My little corner of the blogosphere is alive with entries about the disadvantages of comments. In general, I have a live-and-let-live attitude towards comments: some bloggers like them, some don't. In general, I don't find the 'urge to reply' too powerful to resist, so they don't waste my time, and I rather like learning about the other interesting blogs out there through those who comment on my site. I'm not about to turn them off.

Then again, sometimes you get insightful pieces of commentary this one from a fellow CLS student:

that was pretty idiotic (signed "your classmate')
At first I doubted whether it was honestly a CLS student comment: at this late date, is there anyone here that can still make an argument that isn't in IRAC form? Sadly, the author was indeed a classmate.

This kind of thing doesn't bug me: frankly, the blogosphere is nothing in comparison to the awful days of USENET flamewars. But as a courtesy warning to those of you who like leaving 'anonymous' comments: be careful what you say. Obviously the above doesn't rise to anything damaging, but if someone ever did leave some remark that required the author to be tracked down, it's relatively easy to do.

You see, the comments feature of most blogs (including MoveableType, what Three Years of Hell uses) records the IP address from which the comment is posted. That and TRACERT allows one to determine that is within the Columbia Law School. [1] Meanwhile, the Law School's computer networks don't allow you access to the internet until you've registered your Ethernet card(s). The CLS systems administrators should be able to check their DHCP logs, figure out what ethernet card was using a given IP address at a given time, and match that to a name. (I believe this is roughly the same method the RIAA uses to get your name if they want to sue you, but I'm not certain there.)

Obviously, such involved searching be overkill for a cogent piece of literary criticism like the above. But just in case some reader decides it's a good idea to leave defamatory, libelous, or otherwise damaging text in an 'anonymous' way here on Three Years of Hell, I feel I ought to give at least this much warning.

[1] In case you're interested, here's one of a number of TRACERT servers out on the web. Try it yourself. You can also call up a command prompt and type TRACERT, or whatever other IP address you feel like.

December 1, 2003

Because conservatism is, you see, conservative...

Two conservative pundits came out this weekend against the Federal Marriage Amendment. George F. Will (for whom I've got a lot of respect) and Jonah Goldberg (who I generally refer to as "a poor man's P. J. O'Rourke") both argue that the consequences of homosexual marriage are essentially unknowable, but that a constitutional amendment is a dangerous thing unsuitable to such an issue.

I'd like to agree with them, but to me, the FMA serves a pretty pragmatic purpose in the game theory that is the separation of powers. For quite a while, certainly long before Roe v. Wade, the judiciary has taken upon itself social re-engineering through a massive expansion of the language of the Constitution. This has been successful largely because the early injustices which it righted in Brown v. Board of Education or Loving v. Virginia were an blight upon the national honour, and gave the movement a certain credibility. And so for over thirty years, issue after issue has been taken from the sphere of politics and placed within the exclusive domain of constitutional interpretation. Meanwhile, every federal court nomination becomes a political battleground, as it properly should be when judges take an active role in politics.

Against this background, the FMA is a game-theory penalty, the single thing which an advocate of judicial legislation should fear: that if one pushes just a bit too far, the gains one hoped for are annihilated by a popular tide. No matter how many presidents change, or how many justices may struggle, or how many law professors pontificate, an amendment places the issue out of their reach. Passage of the FMA thus makes the next judicial 'reinterpretation' of the Constitution that little less likely, the next act of overreach a little more dangerous for the powers in black robes.

Indeed, this is a particularly good point to stand against the tide of judicial activism. Because while Andrew Sullivan says today that he is all for federalism, and while the New York Times and the Washington Post have discovered a new found and convenient love of state's rights, does anyone question that once Goodridge is settled law, the next statute for the Equal Protection chop is the Defense of Marriage Act? (And how long will Sullivan or the two great newspapers wait before annulling this particular marriage of convenience?)

Of course, the troubling downside is that this particular balancing of the governmental powers would fall on the backs of homosexual couples who wish to be married. Believe it or not, I already tend to be convinced of the merits of homosexual marriage, and enjoy listening to those who take the views of their opponents seriously. But at present, thoughtful conservatives should take the view that supporting the FMA tilts the balance back in favor of legislatures over judges, of persuasion over legal pronouncement. If one must draw a line in the procedural sand, this is as good a place as any, as perilous as it may seem to Will, or as contradictory as it might appear to Goldberg.

Giving The Devil His Due

Change of Allegiance (6)
Balasubramani wrote: I haven't gathered closely enough f... [more]

The Grinch Stole Sex.com (2)
joe wrote: no comments... [more]

Constitutional Law Books and Website Layout (5)
Adam Wolfson wrote: Honestly, I'd suggest Erwin Chemeri... [more]

1L wrote: I think everyone's in the same boat... [more]

Hacking Hatch (5)
sdfgh wrote: check out http://www.opinionjournal... [more]

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