More of my days should be like this. After working until late last night, I slept until 9:30, and woke refreshed without my throat itching for coffee. A bit of rereading of notes and some light research later, I sauntered out to find that Mother Winter felt merciful today. Bright and temperate enough that I didn't really need my coat, I called a good friend and brunched at the West End's sidewalk tables.

The service was as bad as the company was good, but really, it didn't matter. OK, coffee didn't come for fifteen minutes, and my companion's tea arrived substantially after the main course. But there was good beer, good sun, and a gentle breeze on this strange leap year day. (One advantage of having lived in England: having a beer for lunch is just a normal day, not a sign of approaching alcoholism.) While we waited for forks to be delivered so we might eat without dirtying our fingers, a procession of Kerry supporters wandered down Broadway, placards and signs making a political forest, like the march of some particularly socially-conscious ents. One cheery-but-loud woman called out, "Buttons! Buttons! Anyone want a button?" I couldn't resist. "Vote Kerry," she said, and didn't have the heart to tell her it wasn't bloody likely.

Still, I did my bit for the cause--it was too nice a day. I pinned the button on my lapel and my lunch companion snapped a picture with her mobile phone. So I guess some of you never thought you'd see this:

The day's been good ever since. I've wandered over to the law school and read a week's worth of ConLaw and a week worth of CrimLaw as the brilliant sunshine faded into a subtler sunset than I can normally enjoy from the Glowing Box of Despair. The last three hours have been learning mixed with a generous helping of Alan Jackson and Martina McBride. Now I'll wander home and put the finishing touches on my Moot Court brief.

Plenty of work remains to be done, but I can look forward to something more. I've taken some time to examine Prof. Bainbridge's wine notes for something appropriate: tomorrow I'm cooking dinner for a kind young lady of my acquaintance. The worst pressures of the job search are gone, and Moot Court nears completion. A quick glance at the Exam Watch shows that these calm pleasures can't last, but the last few days and the next few days seem to be conspiring in my favor. I'll raise a glass and be thankful while I can.

Posted by Anthony at 10:42 PM | Permalink | Comments (4) | TrackBacks (1)

For all my Asimov-fan readers, it's worth noting that the website for the new I, Robot movie is now up. Will Smith and Bridget Moynahan as lead actors give me a bit of pause--she's just too pretty for the perpetually unattractive Susan Calvin--but it's directed by Alex Proyas.

I can't wait. Indeed, I almost want to go back and re-read the novel. For those who don't know, the collection of stories deal with robots programmed to follow three simple and yet absolute laws, and the problems that arise in their interpretation. The "3 Laws Safe" slogan on the movie website is delightfully ironic. Asimov's three laws of robotics were in the main sensible, but never truly secure.

Posted by Anthony at 07:08 PM | Permalink | Comments (4) | TrackBacks (0)

I'm going to mention this here because, while I like Ambimb and Heidi, this is the kind of blogging that really disappoints me. Both of them post approvingly of a speech by Congressman Jim McDermott of Washington in which he mockingly proposes a constitutional amendment to make marriage conform to 'biblical principles.' (Actually, he's recycling a piece of old internet political humor, but we'll leave that aside.)

The trouble is that McDermott's 'amendment' cites biblical passages in the way of which a law student should be astoundingly wary. Imagine you received a brief in which only one of the Supreme Court citations was more recent than Dred Scott. Imagine that no direct quotations were given, and that if you looked up the citations, they actually covered a far narrower range of holdings (divorce on the basis of lack of chastity, rather than all divorce) than the conclusion warranted by the cite. And imagine the lawyer before you had done all that approvingly, and when you asked them about it, said, "Oh, heck, I don't know anything about Constitutional interpretation. I just found a law review article quoting these, so I used them." You wouldn't be impressed, would you?

Well, McDermott's "piece" cites only Old Testament provisions, with one exception regarding divorce. (That exception should have proven to be a hint, given the differences in Jewish and Christian divorce traditions.) His use of Deut 22:19 as support for a ban on all divorce (as opposed to a punishment for lying with regard to a woman's virginity) is sketchy to say the least. One can debate how much religion ought to go into public policy if one wishes, but Cong. McDermott's speech is pure pig-ignorant calumny, probably lifted from a Constituent letter. And in Ambimb's comment section, he admits:

"As for McDermott's statements about what the Bible says about marriage, you got me. I don't know much about these passages. I can't tell you what the salient characteristic of each of the passages is; I haven't read them."

Now, Congressman McDermott is a doctor by trade, so one can almost excuse putting such excresence into the Congressional Record. But Ambivalent Imbroglio is a law student. Even supposing that biblical text is subject to such literalist exegesis as he'd never give the Constitution, he should know that later amendments can overrule prior ones; that a text cannot be interpreted piecemeal, and even if you're Scalia the intent of the authors counts for something; and that a lack of recent citations is inherently suspicious. The continual quotation of the Old Testament should have made him think that even if there is an argument similar to this to be made for a non-scriptual interpretation of marriage, this is not it.

Why does this bother me? Because while I agree with Ambimb's position on gay marriage (roughly, get the state out of the marriage business altogether), I can't imagine he'd do this kind of thing in any other social context. I can't imagine him citing one or two passages from the EU founding documents, or a crumb of African history, or a few random passages of a sutra, and all of a sudden declaring (or reprinting someone who declares) that can prove all sorts of things, even in jest, while admitting he's not read the relevant documents. [1] Ambimb, and more importantly the Congressman, is not only saying that he thinks the non-profit Presidential Prayer Team is silly (an opinion I would probably share), but that by throwing out a few lines of scripture from a document he's not read and certainly doesn't understand that he can declare himself superior in scriptural exegesis. The trouble is that to even my admittedly passing theological knowledge, the piece is dumb. Smart people shouldn't post it.

(That said, I reprint the text in the full post below for reference, in case you don't feel like clicking on the Congressman's link. Perhaps I should say that smart people shouldn't post it approvingly.)

[1] Note: In fairness to Ambimb, this style of argument isn't unique. It's also pretty silly when people with no knowledge of Islam lift a few selected passages out of the Koran, something I've seen a lot of online recently, often by the same Christians who would object to the piece below. If a religion has a history of scriptural interpretation, it should be respected.

Update: Some backup commentary from The Clerk, who is better at both Biblical and legal citation than I am. I wish I'd thought of saying this: "I cannot help but note with some genuine humor that the folks so eager to throw the Hebrew law in Christians' faces stand in the shoes of the Pharisees."

Speeches

Regarding Justice Scalia's Refusal to Recuse Himself From Hearing Case Concerning the Vice President

House of Representatives - February 25, 2004

Mr. Speaker, the President's presidential prayer team is urging us to ``pray for the President as he seeks wisdom on how to legally codify the definition of marriage. Pray that it will be according to Biblical principles.''

With that in mind, I thought I would remind the body of the biblical principles they are talking about.

Marriage shall consist of a union between one man and one or more women. That is from Genesis 29:17-28.

Secondly, marriage shall not impede a man's right to take concubines in addition to his wife or wives. That is II Samuel 5:13 and II Chronicles 11:21.

A marriage shall be considered valid only if the wife is a virgin. If the wife is not a virgin, she shall be executed. That is Deuteronomy 22:13.

Marriage of a believer and a nonbeliever shall be forbidden. That is Genesis 24:3.

Finally, it says that since there is no law that can change things, divorce is not possible, and finally, if a married man dies, his brother has to marry his sister-in-law.

Posted by Anthony at 11:38 AM | Permalink | Comments (36) | TrackBacks (7)

There has been news on the job front, and it's good news, but since nothing is decided yet, I won't blog about it. Suffice it to say I'm happier than I was on Thursday night.

On Thursday night, of course, I was pretty happy. In an act of premature celebration about my summer job situation, I spent far too much money on access to a charity poker game. That said, my personal splurge resulted in a healthy donation to the Public Interest Law Foundation. Since a friend of mine recently chastised me quite strongly for mocking too-often their overwhelmingly liberal bent (I did notice with some surprise that they were willing to auction from the right-side of the podium) I'll let that aside and instead say I'm looking forward to a good game of poker, and I hope whoever's summer crusade I've funded thinks an occasional kind thought towards Republicans as a result.

Finally, my latest distraction from studying is designing and implementing a website for law school society that will remain unnamed for the moment. In order to keep this from being too large a commitment, I'm trying to implement the site with a content management system, so that the society board can update it without much of my help. I'll probably just use a hack of Moveabletype to spit out the code, as it already has plenty of useful plug-ins. But I'm tempted to use a new CMS called Textpattern. It's PHP-based, looks pretty secure, and does most of what I want.

It was first referred to me by someone who got the name wrong, and said I might be interested in using Textualism to implement my site. It's a shame this isn't the real name, since I was really looking forward to implementing a law school webpage that could legitimately say it was powered by Textualism.

Posted by Anthony at 02:06 AM | Permalink | Comments (1) | TrackBacks (0)

For a few hours today, TYoH was down, for reasons that I don't entirely understand. About half of my site index was just deleted.

Could be some very odd hacking, could just be Moveabletype throwing a wobbly. But in any event, you have my apologies. If you see anything strange on the site in the next few days, please tell me.

Posted by Anthony at 05:39 PM | Permalink | Comments (2) | TrackBacks (0)

Someone asked me the other day how I keep track of a number of conversations happening simlutaneous on six or eight blogs, or how I keep finding all these strange things on the net. The answer to the first is RSS/ATOM feeds, which mean that when something gets updated I'm normally notified in my inbox. But it's the other question that interests me more. It's the reason I was first drawn to blogging, the reason the internet has been such an obsession, and to a great degree the reason I started reading. I'm a sucker for the interconnections of knowledge.

In the last few hours, while I've been looking over Reg. State and reading CrimLaw, I've also had occasion to draw a connection between Chris Geidner's support for judicial activism, the American concept of balance of powers, and the massively different concept of power-balancing involved in the Tokugawa bakufu (government) from the 17th to 19th centuries. Indeed, in contrast to the 'dominant' image of Christianity many have today, I started thinking of the annihilation of the Christian religion in Japan by Iemitsu, best captured in George Elison's Deus Destroyed..

On the way back from the law school, I got to talking with a friend about The Kingdom, it's American remake, and then listened to her tell me a related story of Pharoah Psammeticus and his attempts to discover the oldest language on earth. and similar experiments by Akbar the Great and James V seeking to find the language of God. From there to the Mogul Empire, and via the Wikipedia, solidified my knowledge of Wiki, including the fact that it comes from the Hawaiian for 'fast' (wiki wiki). Which in turn strikes my interest in collective authoring and distributed knowledge. A few sips of coffee later, and I'm remembering that the strange Quizno's sub ad mentioned by Professor Bainbridge must have been done by the same guy who did the Laibach kittens.

The Web, RSS, Lexis-Nexis, Google... all of these are ways of collecting and sorting information. Some of the means are easier to use than others, while some of the data sources are of better quality or greater authority. The best part of my Moot Court project has been the excuse to wander for hours on Lexis, occasionally just meandering off onto non-productive but informative side-streets.

If the curse of university is never feeling like you have time to yourself, the joy of being in education is the access to knowledge, and the occasional moments when you can indulge in knowledge for its own sake. I wish I had more time to spend on my Perspectives course, time to not only put some critical thought into what the authors have to say, but to look at their historical and cultural backgrounds and contrast them with others I know. From what I can tell, Tokugawa Ieyasu might have been right at home with Thomas Hobbes, and I'd give good money for a dinner conversation between Hayashi Razan and Alexis de Tocqueville. Maybe later I can think about this more. But for all my griping recently, this law school thing really is a mind-altering experience, and mostly in a good way.

Posted by Anthony at 03:13 AM | Permalink | Comments (1) | TrackBacks (0)

Remember when I was saying I just couldn't get good-quality creative stuff to come out of my brain? My classmate has just set the bar I was talking about. This is the kind of thing that I wish were coming to mind.

Posted by Anthony at 12:17 AM | Permalink | Comments (0) | TrackBacks (0)

For some reason, tonight I accomplished almost nothing. I was beset with odd and obscure desires, and spent my night shopping for these.

My dorm room has no space for one of them. I can't afford any of them. And if I'm not wrong, my family already has one in storage, so if I wait, I might inherit it. Still, for some reason life doesn't feel complete without one. This is probably the best sign yet that law school is driving me mad. Or at least into the realms of poor taste and tackiness.

Anyway, it's not true that I got no work at all done. A bundle of the administrative tasks necessary for my job search were completed. But no reading, no work on my papers... nothing, in short, that gets me ready for tomorrow.

Posted by Anthony at 11:40 PM | Permalink | Comments (0) | TrackBacks (0)

Overheard today by one of my classmates:

"Hey, baby, what do you think of moral hazards?"

That never works...

Posted by Anthony at 09:35 PM | Permalink | Comments (3) | TrackBacks (0)

So we're up to Lochner in Constitutional Law. What it's made me realize is exactly how fragile judicially-based freedoms actually are. Once your particular Solons change, you're pretty-well screwed.

So here's a question for Massachusetts, for which I don't know the answer. When the Courts of the early 1900s was indulging in true conservative judicial activism in the name of a 'right to contract,' no lesser a liberal luminary than FDR suggested packing the Court: putting in place a greater number of justices so that he had his own majority. The idea wasn't particularly original: it had been proposed as a measure to control the House of Lords during Victoria's reign.

Now, I've checked, and California sets its number of Supreme Court justices in its constitution, but Massachusetts seems to do so by statute. "The supreme judicial court shall consist of one chief justice and six associate justices." ALM GL ch. 211, § 1. So supposing that the legislature and the governor are truly worried about judicial usurpation of their powers, why not indulge in a little court-packing?

Of course, I could be missing something in the Massachusetts constitution. It's a long and complex document, and I'll admit the possibility I've missed the point. But given that the SJC has set the goalposts too close for an amendment to take effect before gay marriages must be recognized, why not change the court instead of the constitution?

Posted by Anthony at 09:57 PM | Permalink | Comments (18) | TrackBacks (0)

YOU ARE RULE 20(a)!

You are Rule 20, an important part of the Federal
Rules' policy of permissive joinder. You are
designed specifically to allow as many parties
in an action as can be tried efficiently, and
you'll include someone as long as there is some
factual overlap between a claim involving them
and the rest of the case at hand. You are
popular, out-going, and are never far from
friends. However, your overly gregarious
nature and magnanimous approach to all things
cause your closest friends to wonder that, even
when you're surrounded by your compatriots,
there is a part of you that feels cold and very
alone.


Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla

Posted by Anthony at 01:42 AM | Permalink | Comments (2) | TrackBacks (2)

Some of you may have noticed that when it comes to blogging, recently I've just not been on my game. Pieces have been rushed or garbled; thoughts have been, at best, half-formed; and I've been stumbling over my own feet at least half the time. If you will all excuse a more personal blog entry than most, I'll try to get through what's going on: I'm having to deal with a few larger thoughts than normal, and a lot of them have to do with why I'm writing this blog.

Background
First of all, there's a lot of blessings to count, although each on reflection is mixed. Last week I had the longest and most involved interview I've had yet--with a firm I'll just call BIGLAW. I'm hoping I get the job, because while it's not in Tokyo, it's well-paying and prestigious. Something in the office environment, more serious than a code-shop and yet not Bleak House, felt good to me. It was a half day of interviews, and by the end I was bloody exhausted, but I'm hoping it didn't show.

(There's a couple of other interviews that are either outstanding or in the pipeline, and a few more firms I'm hoping to hear back from.)

In the meantime, classes are going... well, disasterously, actually. I'm not far enough behind in any class to collapse into a total drunken wreck and bemoan my fate, but I'm still part of the Fraternity of the Damned. CrimLaw remains confusing to me, and I can't put it all together, but if you remember how I coped with Torts last term, I'm just waiting for that same moment of clarity to hit me. Slogging through my masses of ConLaw remains a task I can't cope with, but today I put the first touches on an outline. And Reg. State is... well, Reg State. But even that's beginning to feel foreign to me.

So what does this brief update on real life have to do with why I've not been blogging? Believe it or not, it's not shortness of time. Read on...

The Conundrum
I started this blog as a form of light humor and entertainment, a creative task I'd enjoy doing as a distraction from the trials of law school. I set myself up some rules to keep myself from trouble, and figured what could it hurt?

This was fine, so long as my sense of humor was intact. But now I find myself getting a little more tired, a little more drawn each day, and I can't keep the strange perspective with which I used to write going. Keeping things light and amusing became impossible a few weeks ago. [1] As a consequence, I was first writing more about politics--which, obscurely, is a fairly safe topic, because ones opinion is well-camouflaged in the forest of the blogosphere--and then suddenly wasn't writing much at all.

At the moment, I find myself in a bind. Unlike Sherry, I don't blog about my personal life, my love life, or the various trivia that is me. Unlike her, I'm simply not that interesting. (Although I have recently purchased a very attractive pot plant, what I believe is a medium-sized ficus tree. We'll see if my brown-thumb prevails.)

Keeping quiet about such things protects the privacy of my friends and besides, I don't know you folks that well. However, as a consequence, if my personal life gets more interesting I have less to blog about.

In the meantime, I'm wary about blogging about my job search. I'd never noticed, as I'm not the kind who scans my logs for more than bare aggregate information, but just lately a few firms--say, Miller, Reeve, and Bath or Tidleywumpets.co.uk--have been showing up both as referrers and in the organization report. I don't blog anonymously, and they had my resume. All of a sudden, one feels a bit exposed. I think I'm smart enough to avoid doing anything too embarassing, but it does complicate all sorts of etiquette situations.

Finally, the tiredness and failure of humor makes it difficult to blog about my school work. It just reminds me that instead of blogging about it, I should be reading about it. Sort of takes the joy out of the whole thing. When I was at lunch with one of the BIGLAW associates, they mentioned that while being a first year associate was a lot of work, it had one big advantages over law school: even if you were at the office all the time, when you go home, you can switch off. It's a sign of how long I've been doing this that I had to remember that yes, that is an advantage of a regular job. I once had one, you know.

And if that humor isn't there, talking about class is risky. I already find myself on edge, writing near-to-obscene comments in an article by Radin. (OK, she deserved it, the whole hypothesis was silly.) I'm not sure I trust myself to really let loose and yet still remain within the bounds of good taste.

So I suppose this long and drawn out explanation/rant/apology is by way of forgiveness for not having been on the ball of late. I'm sure in a few days the tables will turn, and then we'll be back to droll discussions of the Moe's criminal intent in his assault on Curley, or what have you. But in the meantime, it may be a bit dry, or a bit political.

[1] Incidentally, Jeremy Blachman and Buffalo Wings And Vodka seem to manage this irreverence without fail, every day, no matter what's happening. They are simply amazing in that way.

Posted by Anthony at 01:32 AM | Permalink | Comments (7) | TrackBacks (1)

Having recently had several conversations over an annoyance of mine (I don't believe that marriage necessarily has much to do with love, in either its legal or its civil capacities), I was looking through arguments about gay marriage with a bit of a new eye. It struck me that when activists like Andrew Sullivan mention that homosexuals desiring to get married won't weaken heterosexual marriage, but strengthen it [1], he was preceded in the thought by G. K. Chesterton, several generations ago. In the words of his 'sufficiently democratic' policeman:

'"You are not sufficiently democratic," answered the policeman, "but you were right when you said just now that our ordinary treatment of the poor criminal was a pretty brutal business. I tell you I am sometimes sick of my trade when I see how perpetually it means merely a war upon the ignorant and the desperate. But this new movement of ours is a very different affair. We deny the snobbish English assumption that the uneducated are the dangerous criminals. We remember the Roman Emperors. We remember the great poisoning princes of the Renaissance. We say that the dangerous criminal is the educated criminal. We say that the most dangerous criminal now is the entirely lawless modern philosopher. Compared to him, burglars and bigamists are essentially moral men; my heart goes out to them. They accept the essential ideal of man; they merely seek it wrongly. Thieves respect property. They merely wish the property to become their property that they may more perfectly respect it. But philosophers dislike property as property; they wish to destroy the very idea of personal possession. Bigamists respect marriage, or they would not go through the highly ceremonial and even
ritualistic formality of bigamy. But philosophers despise marriage as marriage. Murderers respect human life; they merely wish to attain a greater fulness of human life in themselves by the sacrifice of what seems to them to be lesser lives. But philosophers hate life itself, their own as much as other people's."'

--The Man Who Was Thursday (emphasis mine)

Yet one more thing I don't have time to read.

Update: In case anyone wonders why I like this book, I have a gread deal of fondness of the main character, Mr. Gabriel Syme.

GABRIEL SYME was not merely a detective who pretended to be a poet; he was really a poet who had become a detective. Nor was his hatred of anarchy hypocritical. He was one of those who are driven early in life into too conservative an attitude by the bewildering folly of most revolutionists. He had not attained it by any tame tradition. His respectability was spontaneous and sudden, a rebellion against rebellion. He came of a family of cranks, in which all the oldest people had all the newest notions. One of his uncles always walked about without a hat, and another had made an unsuccessful attempt to walk about with a hat and nothing else. His father cultivated art and self-realisation; his mother went in for simplicity and hygiene. Hence the child, during his tenderer years, was wholly unacquainted with any drink between the extremes of absinth and cocoa, of both of which he had a healthy dislike. The more his mother preached a more than Puritan abstinence the more did his father expand into a more than pagan latitude; and by the time the former had come to enforcing vegetarianism, the latter had pretty well reached the point of defending cannibalism.

Being surrounded with every conceivable kind of revolt from infancy, Gabriel had to revolt into something, so he revolted into the only thing left--sanity. But there was just enough in him of the blood of these fanatics to make even his protest for common sense a little too fierce to be sensible.

[1] An argument with which I agree, incidentally, although I don't think it's very relevant. Certainly many enthusiastically married couples will strengthen an institution which will then be called 'marriage.' But it won't be the same institution that preceded it, which is rather what the debate is about. In a sense, it will strengthen something by destroying something else, making the entire line of argument a little more than an exercise in semantics.

Posted by Anthony at 11:29 PM | Permalink | Comments (2) | TrackBacks (0)

Via Professor Bainbridge, I have come across an old but very entertaining parody: Unused Audio Commentary By Howard Zinn & Noam Chomsky, Recorded Summer 2002, for The Fellowship of the Ring Platinum Series Extended Edition DVD, Part One:

Chomsky: Well, what we see here, in Hobbiton, farmers tilling crops. The thing to remember is that the crop they are tilling is, in fact, pipe-weed, an addictive drug transported and sold throughout Middle Earth for great profit.

Zinn: This is absolutely established in the books. Pipe-weed is something all the Hobbits abuse. Gandalf is smoking it constantly. You are correct when you point out that Middle Earth depends on pipe-weed in some crucial sense, but I think you may be overstating its importance. Clearly the war is not based only on the Shire's pipe-weed. Rohan and Gondor's unceasing hunger for war is a larger culprit, I would say.

Chomsky: But without the pipe-weed, Middle Earth would fall apart. Saruman is trying to break up Gandalf's pipe-weed ring. He's trying to divert it.

Zinn: Well, you know, it would be manifestly difficult to believe in magic rings unless everyone was high on pipe-weed. So it is in Gandalf's interest to keep Middle Earth hooked.

Posted by Anthony at 11:46 PM | Permalink | Comments (1) | TrackBacks (0)

I know, I haven't updated in a while. This is largely because my weekend has been spent reinstalling every bit of software on my computer, simply because I've stressed Windows XP beyond its capacity. (Given the amount I abuse my computer, I don't think you can blame this on Gates.) Well, that and with a hangover after an enjoyable evening at a Ball. Wow, was that a lot like prom...

Anyway, I'll give you a link to the Rumsfeld Fighting Techniques site (hat tip to my brother for the link), to keep you amused while I get all my data downloaded from my backups, and reinstall office XP. Deep thoughts to follow, but for now, dear reader, you have to make do with apologies.

Posted by Anthony at 07:44 PM | Permalink | Comments (0) | TrackBacks (0)

My favorite authors have a tendency to be those who see the world just a bit cockeyed, folks who when presented with two hostile parties come up with a 'third way' that isn't just stealing one or another set of clothing. Chesterton, Bierce, Lewis, Swift--I'm partial to authors who are just a bit crazy.

(I've known people to quote Chesterton as being against tradition, without remembering the context of the phrase "Tradition is the democracy of the dead." People sometimes forget that he was not entirely unserious when he said:

"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. I, at any rate, cannot separate the two ideas of democracy and tradition; it seems evident to me that they are the same idea. We will have the dead at our councils. The ancient Greeks voted by stones; these shall vote by tombstones. It is all quite regular and official, for most tombstones, like most ballot papers, are marked with a cross.")

There will be those who as, "What is this all about, The Conscience of a Conservative Democrat?" I can hear the liberal Washington crowd right now. Gold medalists in the Sneering Olympics, hissing, "In the first place, Miller's no Democrat." On the other hand, there are some die-hard Republicans back in Georgia who will break out their choicest cuss words and swear, "He's no conservative." And you can bet that some old drinking buddies from many years ago will slap their knees and hoot, "What conscience?"

Posted by Anthony at 08:53 PM | Permalink | Comments (2) | TrackBacks (0)

For the second night in a row, I'm up until 2:30 AM working on my moot court brief. I can't say I'm displeased with the result--the argument isn't totally full of holes, unlike much of my recent blogging [1]--but it's been a very tiring road. Furthermore, the case is one of those annoying stories of nastiness on the part of one man (who isn't being sued); suffering on the part of another (who is suing); and laziness, defensiveness, and bureaucratic inertia on the part of the third (who's got the deep pockets, and is thus my defendant). Ideally, I'd like the plaintiff to have acted responsibly, the defendant to then have settled things reasonably, and this never to have gotten to court.

I'm enjoying it. It's a creative exercise, and when I'm not fighting a persistent writer's block--there's a reason I've been blogging so much, it gives me a good hour to 90 minutes of memo writing before my brian seizes up again--I'm loving this odd struggle with precedent and trying to figure out how to subtly say that a given was wrong. Distinguishing between fact situations that are slightly different in limited but critical ways is turning out to be a real pleasure.

But I'm not sleeping. Heck, I'm writing this, and my last entry, because after finishing the brief, it'll take my head another hour to wind down and relax to the point I can shut my eyes. I'm going to look like a train wreck again tomorrow. If I'm unlucky, Prof. Con Law will report me to the Dean on the grounds that the only thing that can explain my current unhealthy demeanor is longstanding substance abuse.

[1]: Never let it be said I can't joke at my own expense, eh?

Posted by Anthony at 03:27 AM | Permalink | Comments (6) | TrackBacks (0)

Wow. A truly impressive Findlaw piece from Professor Dorf analyzing the arguments against the Federal Marriage Amendment. While I disagree with him on the idea that the proposed amendment would make civil unions impossible to an appropriately creative legislature, he does a fine job of knocking down the straw man arguments being proposed elsewhere and boiling the argument down to where it lies: the FMA is wrong if you think same-sex marriage is right. Conversely, though he doesn't state it, I'd say the FMA is right if you think same-sex marriage is wrong.

Read the piece, but the three major arguments he defangs are:

• The FMA is inconsistent with States Rights
  
• Constitutional Amendments should not be used to shrink individual rights
  
• This isn't the kind of thing you do by Amendment

My comments on some of the lesser points of the article are below, but really, they're not important, and mostly for my benefit. (This is a diary, after all.) It's a good article. You should read it.

I actually think Dorf gives short shrift to the arguments of religious opponents: many religious people do not see religious and civil marriages as distinct, but that civil marriage piggy-backs on the older, religious institution. (People do not get married twice, in two ceremonies, after all--priests conduct weddings that have legal force.) And he doesn't mention the idea that you could square this particular circle by making all civil 'marriages' into 'unions' and getting the state out of the marriage business completely. (After all, if the two institutions are distinct, what's in a name?) Still, neither of those are criticisms of quickly-referenced side points.

Lastly, I think he reads the desires of homosexuals to get married as more uniform than is warranted. While some homosexuals are 'paying homage' to the institution of marriage as he suggests, many others want same-sex marriage to be recognized precisely because it changes the nature of an institution that has normally carried a religious as well as a temporal meaning. Marriage was the institution in which the act of sexual congress between a man and a woman was sanctified, and homosexual activity was traditionally considered to be excluded from that. [1] State recognition of 'marriage' (at least in the eyes of those who don't consider the institutions completely distinct--and the lesbian priest who came to speak to us at Columbia last term regarding the issue didn't seem to consider them so) would implicitly serve as a normative gesture, indicating that this particular religious interpretation of marriage was 'fringe' and that the civil definition was what was 'acceptable.' (Hence my preference for just abandoning civil marriage for civil unions: it doesn't have the likely consequence of deliberately undermining the teachings of a religion.) [1] Not only don't religious people all think the twin institutions of which Dorf speaks are separable, but I doubt all homosexuals wanting to get married do either.

But whatever these reservations--and I'm sure given a greater word limit Professor Dorf would have addressed them, or fairly stated that the religious dimension was outside the boundaries of his argument--the piece is a must-read for its determination to draw the battle lines where they belong: on whether or not homosexual marriage should be recognized by the state. He's done a great service by running a scythe through the straw men.

[1] Dorf writes that "Apparently, people who oppose same-sex marriage think that loving committed relationships among gays and lesbians are so different in kind from loving committed relationships among heterosexuals, that dignifying the former with the term 'marriage' makes a mockery of heterosexual marriage." Implicit in this statement is the concept that love, and a commitment to one's partner based upon that love, are the foundation for which marriage was put in place, or even vaguely related. I'm reminded that this assumption--at least with regards to the religious institution--is one that C.S. Lewis spends some time debunking in many of his works, including The Screwtape Letters, which for obvious reasons I take every opportunity to mention here.

Posted by Anthony at 02:47 AM | Permalink | Comments (0) | TrackBacks (3)

From an IM I sent today about my moot court work:

Well, anyway, back to arguing that my scumbag police department isn't liable for having hired a Cro-Magnon who thinks women should be in the kitchen, barefoot, and (preferably) pregnant, just because she didn't fill out form 38B in triplicate when he behaved like a moron and drove a perfectly competent police woman off the force.

Posted by Anthony at 10:24 PM | Permalink | Comments (0) | TrackBacks (0)

General time pressure is beginning to kill me. And the worst bit is that when I'm under time pressure (a) I begin distracting myself from what needs to be done inorder to evade the pressure (thus making it worse), and (b) I start making stupid mistakes. Such as what I just found in my Perspectives notes:

Lux iniusta non est lux.

Yeah, right.

Posted by Anthony at 04:20 PM | Permalink | Comments (0) | TrackBacks (0)

Tired, hurried, and still working on my moot court brief, I take a break and scan the web. I've got to be hallucinating. Didthe Guardian just report that Saddam's cash was funding UK anti-war organizations? First tonight I get drug-tripping Randians, and now the Guardian's linking up Saddam and Galloway? OK, not directly, but still.

I gotta stop staying up this late.

(link via Andrew Sullivan)

Posted by Anthony at 12:15 AM | Permalink | Comments (5) | TrackBacks (0)

This has been on so many blogs now I don't feel the need to point out all of them.

It's strange. I think it's Ayn Rand on some serious drugs. If you're really good, you might be able to work it into a Reg. State essay.

Posted by Anthony at 09:02 PM | Permalink | Comments (0) | TrackBacks (0)

I'm a bit astounded at the shocking silence of the Left at the moment, at least as it's embodied in the New York Times. When (justifiably former) Judge Moore decided to put a chunk of rock heavier than my first car in his courtroom with the text of the ten commandments, they were all up in arms about a state official acting solely on his own authority, in defiance of higher powers. But at least he had some (very tepid) federalism and separation of powers arguments on his side.

So where are these pious guardians of the rule of law now, when Mayor Newsom and Mabel Teng unilaterally issued marriage licenses, in violation of California law? Not even a peep out of the New York Times editorial page. Apparently one-man justice is just fine, provided you don't mind the result...

I should offer a bounty for the first person who can find me a left-wing editorial being consistent about this issue.

Posted by Anthony at 08:47 PM | Permalink | Comments (28) | TrackBacks (4)

Well, the Senate 'hacking' scandal is the story that just won't die. The Sergeant-At-Arms has been investigating for far, far longer than the whole thing is worth, but even more depressing is the fact that any reference to what was technically required for 'hacking' has now been lost.

Let's recap. Unless the investigation reveals something new that I've not seen, the 'hacking' involved searching through a shared server for folders that were unrestricted by the systems administrator. Note that at least as of 1999, securing a share drive against this kind of interference was a standard part of Senate systems administration training. I can say this with some authority because that's where I learned to administer an NT box. Unless Senate systems training has gotten worse since I was there, this drive wasn't 'secure' at all.

The Washington Post doesn't think this is a defense:

It isn't much of a defense to suggest that the material was not adequately protected on a shared network and was therefore fair game. If Democratic staffers had left their office doors unlocked, would it be open season on their file cabinets? Senate staffers appear to have done the electronic equivalent of rifling through one another's desks in a systematic and sustained effort to gather intelligence. Mr. Hatch deserves credit for insisting -- in the face of considerable party pressure -- that, even in the midst of a partisan war over judicial nominations, such behavior will not be tolerated.

I'll admit that ethically, this is probably sketchy, in the realm of 'ungentlemanly conduct.' But to call this hacking or theft is to put an onus on network browsers that I doubt most Democrats really want to enforce.

For example, go browse some of your favorite websites hosted by the technologically inexperienced. (This may very well include your author, who is less inexperienced than careless.) If you look closely at the code, you'll notice that images, stylesheets, and other files are often left in unprotected directories. To take just one case that I just noticed in researching this article:
http://www.threeyearsofhell.com/images/
Now, suppose I had an image in this directory labelled "MYGRADES.gif", and that this file contained the grades on my recent exams. It's reasonable to expect that I mean to keep these private. And of course, while I've given my visitors leave to visit Three Years of Hell, gentlemanly expectations would counsel that I've not given you permission to go through my collection of images. (OK, I just have in this entry, but you know what I mean.)

Now, answer honestly--how many of you without computer experience would know, prior to finding that file, that this was 'restricted'? The reason one wouldn't expect that is because, when it comes to computers, your machine (the 'client') makes a request to the server, and it's assumed that the server has been told not to give you anything you shouldn't have. If you download a file with my grades in it, is it your fault for looking in a place that I've told you exists--it's in the source code to the webpage--and I've not secured?

If I gave you links to a dozen sites with such unsecured directories, and you went there without knowing that such areas 'should have' been guarded, would you want to be liable for digital trespass? If you downloaded the files I had in there (for instance, if I had copyrighted music in that directory), would you want to be liable for illegally downloading them? What if I'd changed the filenames?

This is why securing a file-server on an otherwise open network is the responsibility of the owner. There's a big leap between taking specific steps to get around security--say, hacking the image directory if I'd put an htaccess password on it--and just poking around somewhere that I've implicitly given you access. Nonetheless, this is the precedent the Democrats are setting now.

Posted by Anthony at 12:49 AM | Permalink | Comments (12) | TrackBacks (0)

I've spent the last two hours reading my Criminal Law for the week. With no disrespect to the class, I have to say that I'm not about to become a criminal lawyer. The cases are an endless parade of nastiness, which average a level of malice on the order of murder and which (in the case I'm reading now) seems to include kidnap, rape and torture. Others may have a stronger constitution, but I shudder to think what it would do to my psyche to deal with these things as my profession on a regular basis. The reading alone is enough to make one ill...

Posted by Anthony at 11:23 PM | Permalink | Comments (4) | TrackBacks (0)

An interesting piece on the Kerry Juggernaut suggests that his strength among 'anyone but Bush'-ites may harm him in the general election. As I've said before, hatred of Bush is likely to be the Democratic weakness this cycle. Hate rouses the base, but it generates its own negatives, while passionate rage and righteous fury overrule clear-headed tactics.

Let me say that again: Among voters who picked the candidate they wanted based on the issues, not the candidate they thought somebody else wanted, Kerry did not win the New Hampshire primary.

Posted by Anthony at 09:53 PM | Permalink | Comments (1) | TrackBacks (0)

I've blogged before about how Sullivan's Constitutional Law textbook is poorly-edited. After 80 pages of reading today, I'd just like to repeat that if, as a 1L, you somehow end up with a choice of professors, avoid like the plague any class that requires you to use this text. We'll leave aside that fact that punctuation and spelling seem to have been left aside as a non-issue. (The count today? Two sentences without verbs, one of which was almost certainly meant to be a question.) The book has several highly annoying features:

1: Entire paragraphs that are nothing but questions. This is common to law textbooks (what is it about law that makes de rigueur rhetorical questions to which no answer is ever attempted?), but this text will fill a quarter of a page with them. If those questions were then answered, in order, in the paragraphs ahead, it might make sense. This is not always the case.

2: The lack of any structure whatsoever. Some cases are in bold and used as 'main selections.' These may be in sections of their own, but sometimes they're cases that answer a single subheading of a section. Notably, these cases will be listed in a larger, darker font than either the heading or subheading that precedes them. No introduction exists to explain what is considered more important, or to give guidance as to how the book is to be used.

Furthermore, there's no apparent rhyme or reason to which cases are in the notes and which are 'main' cases. Length is no indicator--there's 'notes' cases with excerpts that go on for over four pages. The only difference seems to be that the editing of 'notes' cases is more strict, which means dozens of ellipses and brackets.

Finally, if the cases in a section are in coherent order, I've not discovered it. References to cases fifty pages backward, or worse, forward in the text are given, sometimes without reference. The editing of the references is similarly abysmal. Today's reading included one reference that was off by two-hundred pages, and another off by five.

We're about a fifth of the way through the book. I'm considering just reading the whole thing cover to cover in a few weekends, so as never to have to touch it again.

(If you blog and have suffered through this monstrosity, I encourage you to link to this text with the words "sullivan constitutional law textbook" in the text: if we're lucky, the magic of Google would put criticism before the eyes of the editors.)

Posted by Anthony at 09:25 PM | Permalink | Comments (11) | TrackBacks (0)

The Curmudgeonly Clerk really didn't like my plan to read Law's Empire. The book having arrived, and having spent some time pouring through it, I think he's right: it's a 'check out from the library' book, not an addition to my personal shelves. I've sent my copy back, and am exchanging it for some others.

Not like I have time to read anything but Con Law...

Update: From the Stupid Error Department--Thank you for not pointing out that I'd left the author unchanged when I update the books section, thus giving Ronald Dworkin responsibility for Wicked.

Posted by Anthony at 03:00 PM | Permalink | Comments (3) | TrackBacks (0)

Over at Crooked Timber, Kieran Healy is talking about what conservatives think, without talking to any real conservatives. He's dismissing the complaint that conservatives are underrepresented in academia, and how this 'challenges' our 'assumptions':

The trouble is that conservatives, by and large, tend to believe that people get what they deserve in life and that labor markets — whether for food service workers, corporate consultants, assistant professors or any other occupation — shake out fairly. When confronted with evidence of systematic racial or gender inequality, for example, they’ll go to considerable effort to argue that it’s differences in natural talent, acquired skills or personal preferences that are driving the outcome.

Academia isn't like that, and Kieran's smart enough to know that no 'conservative' with half a brain believes that the market for corporate consultants works in any measure like that for academics. For one thing, find me a guy at PriceWaterhouse or Accenture who's got tenure. Universities don't compete with one another in the same way that the big consultancies do, nor do they compete for dollars in the same way. [1] The public teat of government alters incentives, to say the least: otherwise, why would all these law professors be incensed by the Solomon amendment. Some reasons for liberal academia (preference of academics for non-competitive environments, for instance, or for conservatives to go into higher-paying industry jobs), and some of these imbalances may indeed be fading over time as conservatives would expect. (Hence, the rise of the University of Chicago.) It's far from clear that a conservative with half a brain faces the 'challenge' Healy's putting forward.

This is the reason I very rarely read Crooked Timber, and instead prefer En Banc. Far fewer of the latter's arguments are structured like this:

1. I believe X.
2. (Conservatives/Republicans/whatever) believe (some version of X which is obviously untrue and hideously oversimplified).
3. I have no need to include quotes from actual conservatives, or indeed attack a single person with identifiable views rather than some vast amorphous blob that I can describe as I wish.
4. I am therefore correct. QED.

I try to avoid that style of argument (unless it's necessary for humor--but then I don't expect to be taken seriously), primarily because if my estimate of my opponent's view can be taken apart by a five-year-old child (see number 12), it doesn't make me look all that good.

[1] But don't just take my word for it: even leftish sci-fi authors agree with me. (Sort of off topic, but the ways in which academia, and particularly researchers, differ from the free market is a big topic of Bruce Sterling's Distraction, which I finished up last week.)

Distraction

Posted by Anthony at 10:46 PM | Permalink | Comments (1) | TrackBacks (2)

For all my Bush-hating readers out there, I guess I should occasionally throw you a bone. One should have a sense of humor even about one's own guy. And this one's pretty funny:
The Search for U.S. Intelligence

(Link from NTK)

Posted by Anthony at 03:11 PM | Permalink | Comments (0) | TrackBacks (0)

Some folks are really upset by Moby's suggestion that people lie about Bush online to destroy his presidency.

"You target his natural constituencies," says the Grammy-nominated techno-wizard. "For example, you can go on all the pro-life chat rooms and say you're an outraged right-wing voter and that you know that George Bush drove an ex-girlfriend to an abortion clinic and paid for her to get an abortion.

"Then you go to an anti-immigration Web site chat room and ask, 'What's all this about George Bush proposing amnesty for illegal aliens?'"

Moby didn't claim that he believed the abortion story.

Ah, yes. I remember Moby rockin' in support of the now-cool ex-hippie last year. Still, I've got a soft spot in my heart for the musician and his swift sense of humor. After all, when asked if he was a vegetarian because he loved animals, this is the guy who reportedly said: "No. I just really, really hate vegetables."

Posted by Anthony at 01:25 AM | Permalink | Comments (0) | TrackBacks (0)

According to The Drudge Report (breaker of the story of the infamous blue dress with its infamous stain), Kerry has his own intern problems.

Say it ain't so, Kerry. Say it ain't so.

Update: My favorite Columbia target, The Filibuster asks: "More importantly, why does God hate the Democratic Party?" This is such a loaded question with so many obvious answers that I leave it as an exercise for my readers. My comments section is open--keep it clean, folks.

Posted by Anthony at 02:13 PM | Permalink | Comments (9) | TrackBacks (0)

Since my summer job search is still ongoing, I'm going to have a lot of job-related posts in the next few weeks--please bear with me. That said, I'll try to keep them amusing, instructive, or at least brief.

In the meantime, you can amuse yourself with the idea that Harvard will now have an official erotica magazine, complete with pictures of naked undergraduates. Where Harvard leads, can Columbia be far behind?

Actually, I hope we don't get our own version any time soon. Having a local porn mag will force too many lovestruck men here into humming 'My angel is a centerfold.' Then the 80's revival will be complete.

(Link via Jeremy at En Banc)

Update: The editors of the 'H Bomb' contend that they've been horribly misrepresented. Of course they're not a porn mag! To whit: "Both male and female students will appear nude in photography portions of the magazine, but that is not the main focus of the magazine. We aim to create a forum for an honest discussion of sex on campus."

Before mocking the 'yeah, sure, people will read it for the articles' defense, let's consider this seriously. Every college campus I've ever been on has not been short of discussions about sex. Indeed, a bundle of undergraduates away from home for the first time need nothing more than an illicit sip of beer as the vaguest excuse to talk about sex. But I've never seen the rarified and intellectual ivory tower that is Harvard. Let's give them the benefit of the doubt. Maybe these men and women are so smart, so intent on their studies, so given to a life of the mind that they need several pages of nude classmates to get them to remember that they've got gonads.

You don't buy it either? Nope. It's a porn mag.