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February 29, 2004

Illusions of Spring

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.

3 Laws Safe

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.

Shepardize (TM) the Bible, Would You?

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.


Much News, But Not Now

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.

February 27, 2004

Sorry for the interruption...

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.

February 26, 2004

Eclectic Soul

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.

Creative

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.

February 25, 2004

Bizarre Product Lust

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.

Pick Up Lines That Should Be Illegal

Overheard today by one of my classmates:

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

That never works...

February 24, 2004

Rereading Lochner

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?

Since it's been doing the rounds...

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

Why am I here?

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.

February 23, 2004

The Man Who Was Thursday

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.

February 22, 2004

No Blood for Pipeweed!

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.


Wonderful.

Sorry for the Silence

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.

February 20, 2004

No More National Party

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.")

By way of this, I've always been fond of Georgia's ex-governor Zell Miller. He's a bit of an oddball, one of the last of the Southern conservative Democrats who wouldn't defect, no matter what. And he's got that folksy homespun humor that is to the South what Chesterton is to England. I've been reading his A National Party No More, and while a lot of it is just aggressive justification of his past legislative successes, it's still an enjoyable read. Not on my top-ten list, but worth a look if you've got a chance:
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?"

A National Party No More: The Conscience of a Conservative Democrat

February 18, 2004

No Sleep for the Wicked

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?

Tremendous Findlaw Article

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.

February 17, 2004

Bedside Manner

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.

I like to empathize with my "clients."

Not good...

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.

Huh?

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)

February 16, 2004

Trippy!

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.

That Strange Sound of Silence

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.

The "Hackers" Are Back

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.

Better question: if the Democrats and Republicans shared a filing cabinet to which they both had separate keys, and which had a separate unlocked 'shared' door, would the Republicans be wrong in taking copies of files placed in the unlocked 'shared' drawer? A server isn't a set of desks or rooms--if you really wanted to push the network analogy to an office space, that kind of individualized space would be each staffer's desktop machine--but a single filestore to which everyone has the access that they are specifically given by the sysadmin. Let me be absolutely explicit here: absent some kind of real hacking, no user has any access to a file which has not been affirmatively given to him by a systems administrator. The Democrat's sysadmin was, as everyone agrees, given notice of the problem, and the Dems didn't correct it.

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.

February 15, 2004

The Evil That Men Do

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...

Achilles Heel and Plastic Hair

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.

(link from Carey)

Not To Be Tossed Lightly Aside, But Hurled With Great Force...

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.)

New Reading Material

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.

February 13, 2004

Missing the Point

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.

Which is, of course, a joke. Conservatives do believe something similar: that over time, in a free market, such biases will tend to even out in the aggregate. After all, if Mister Evil and I both own factories, and he discriminates against minority workers, I can hire better people at a lower price, and I'll drive him out of business. This takes time, but that's the basic mechanism.

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
Distraction

Gotta have a sense of humor

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)

Moby?

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."

February 12, 2004

NOT AGAIN

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.

February 11, 2004

Lots of Job Related Posts

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.

Legal Incidents of Marriage

The proposed 'Musgrove Amendment':

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Andrew Sullivan and Eugene Volokh disagree with The New York Times on whether the Musgrove text for a Federal Marriage Amendment would outlaw civil unions. While I'm probably out of my league taking on Prof. Volokh, in this case I think he's letting his natural inclinations towards acceptance of gay marriage get the best of him, and he's neglecting the role of legislative creativity. The amendment does just what it's supposed to: stop judicial activism while leaving legislatures free to do as they will. Why?

Prof. Volokh's objection arises because he thinks that it would be impossible to make a valid civil union without it having the 'legal incidences of marriage.' He explains:

A gay couple enters into such a union. One partner, who works for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married couple." "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."

...Then the employee goes to court to demand the benefit. "Sorry," the judge says. "The Federal Amendment bars me from construing the state law to require that this benefit be conferred on you. Yes, I know that the statute says exactly that. But the FMA doesn't allow to construe the statute that way, even if that's the statute's clear meaning. You'd be entitled to get the benefit under the statute, but the FMA trumps the statute.


So far, so good, but both Volokh and Ramesh Ponnuru, to whom he's responding, underestimate the language. First, let's admit that if we've got a Supreme Court or a state court who are willing to look at legislative history, Volokh's worries are unfounded--as Ponnuru points out, there's enough legislative history there that a sympathetic bench can do what it wants. But even suppose we've got dozens of genetically-cloned Scalias in this state, I can't see why a creative legislature could not rewrite its marriage code to get around Volokh's difficulties. While the final output would be more complicated, the gist of the regulation would run:
  1. This state recognizes civil unions between any two individuals, regardless of sex.
  2. The legal incidences of such civil unions are (bereavement leave, adoption rights, yada yada yada.)
  3. All individuals who have been married in the state of X shall also be joined in such civil unions, and shall enjoy the rights and privileges listed in 2.
  4. All individuals who are married shall (insert laundry list of rights which you wish to give only married couples, but keep from civil unions).

Why does this matter? Because in the case Volokh gives, the court is no longer construing a legal incidence of marriage upon a civil union. Rather, they are construing an incidence of a civil union upon a married couple, something which is not forbidden even by the plain language of the text. Yes, it involves a fair amount of legislative gruntwork, and I don't pretend that the 'legislation' above would be sufficient, but it's illustrative of structure. After all, there's nothing that says a state must recognize marriage as a legal state at all.

Note, however, that this only works one way. A legislature can rewrite its marriage code such that there's no construing going on in the one direction that such construction is forbidden: from civil union to legal marriage. But a judge, who can only construe in one direction if civil unions don't already exist, is quite nicely stopped from interfering.

Now, I may be wrong, and there may be some way that the simple legislation I've outlined above would fall afoul of case law. But there's nothing in the Musgrove Amendment that seems too difficult for a determined legislator to get his hands around. Of course, the fact that it's so appealing may be because it plays to my personal prejudices: get rid of legal marriage altogether and just adopt universal civil unions.

In any event, Volokh writes: "When you're deciding whether to support a proposed amendment, I think it's important to think about these ambiguities. Even a 50% or a 25% chance that an amendment will be interpreted to yield bad results might offer enough reason to oppose it." But we've already determined that the legislative history will support a sympathetic and 'activist' judge. Even a sympathetic yet textualist judge and a competent legislature can surmount the problem of language. Which means that the only judicial difficulty we'd have is a judge so rock-set against gay marriage that he cannot be persuaded that Musgrove allows it--one who is making conservative policy from the bench. But if that's the case, how is anyone worse off than before the FMA passes?

February 10, 2004

Good News for the Job Season

My Onion horoscope for the week:
Economic trends are highly unpredictable, so don't be alarmed when your head's suddenly worth $10 million.

Dahlia Lithwick is Not My Strange Bedfellow

Damn it, it's getting hard to say how dumb Dahlia Lithwick is without everyone beating you to it. Maybe this time I can at least scoop the Clerk.

OK, Volokh has already pointed out that supporters of the Federal Marriage Amendment probably don't think they're bigots, and Unlearned Hand wonders how she can expect Bush to become "the guy who first used the Constitution to codify bigotry" when the document supported slavery from the day it was founded until the Civil War. Fortunately, Lithwick is generous to her critics, and almost every paragraph she writes can be mocked without mercy. For instance:

So what is the downside of letting Massachusetts set its own rules and letting the courts chew over the whole mess for a few years? A lack of uniformity. For a while, we'd have a crazy quilt of policies across the country, with some states permitting gay marriage and others banning it. So what? A lack of uniformity is the norm where marriage law is concerned. The only other negative, to the minds of the far right, is that some Americans might be allowed to live in states that accord them the right to marry.

We call that "federalism."


And we call this triumphant (almost orgasmic) moment of self-satisfaction the consummation of a "marriage of convenience." Until Roe v. Wade, a lack of uniformity in abortion was also the norm. A quick Google search shows that Lithwick isn't backing Scalia in any federalist revolution. She mentions in her own article that the Defense of Marriage Act is quite possibly (probably?) waiting to be struck down as unconstitutional. Yet she seems blind to the very idea that FMA proponents fear most: that after Massachusetts, not only the federal DOMA but all the state acts as well are struck down by the same band of federalists who gave us Lawrence v. Texas. With, it's noted, her applause.

She's called Bush a bigot... do we get to call her a fair-weather federalist?

Deciding to Do Something About Google

I spent some time today looking at Google, and decided that it's pretty embarassing that as an ex-web professional, my site should perform this badly on the master of all search engines.

Therefore, I've implemented the MTGoogleRank plugin, courtesy of John's Jottings. You can see this at the bottom of the sidebar. For the moment, those are the three search terms I'm most interested in. With any luck, I should be able to improve my dismal ranking for 'columbia law student blog.'

You know, I wonder why I bother practicing this skill, since my odds of using it as a lawyer are pretty low. Some things are just labors of love.

So Was There Intent?

If you were in my CrimLaw class this week, you'll get the joke. If you weren't--well, there's a lot of other entries on this blog for you to read.

A Very Distracted Dancer

February 09, 2004

Am I Missing Something?

I'm not a Democrat, so I've not delved into the details of how they pick the head donkey. But why would someone as smart as Prof. Yin start dancing on Dean's grave? Why is it that when I watched Nightline last night, they've written off Dean because he's not won a state yet?

The Democratic primaries aren't 'winner-takes-all." They're proportional. And each state has a number of unpledged 'superdelegates.' I'm unclear what happens to a delegate when his candidate drops out of the race, but those very well may come back into play as well.

The upshot of this is that Dean is in second place, and Edwards is decidedly third. Furthermore, so long as Dean is the second choice in states that break for Edwards, that won't help Edwards so much. Given the unpredictable superdelegates and the proportional representation system, why is this not a Kerry/Dean race? Near as I can tell, you can win the Democratic nomination without ever winning a single state.

True, Kerry's got a big lead, and his momentum may mean it's in the bag already. But to the extent that there is a race, I'd think it Dean was the man still running. What accounts for the pessimism of the pundits?

Best Law Review Article Ever

I've mentioned this before, but since the 1L blogosphere seems to be suffering a bout of depression, I figured I'd mention it again:

Thomas E. Baker, A Compendium of Clever and Amusing Law Review Writings: An Idiosyncratic Bibliography of Miscellany with in Kind Annotations Intended as a Humorous Diversion for the Gentle Reader, 51 Drake L. Rev. 105 (2002).

Take one citation a day for cure to your legal blues. (Link won't work if you don't have Lexis.)

February 08, 2004

Amen, Brother!

Reading through the cases for Con Law this week reminded me of an amusing work in the Green Bag, Neil M. Richards' The Supreme Court Justice and "Boring" Cases. It is a truism not only of the Supreme Court Justice but of the Con Law student that for every thrilling case which decides our rights, there are a hundred more cases which are purely and simply tedious:

But as we look to identify individuals who will be good choices for federal judgeships, whether at the Supreme or lower courts, we should also look to temperament, maturity, and demeanor. It is not enough to have someone who can craft a brilliant opinion in a major constitutional ruling; we need someone who can stay awake and who pays equal attention when the tax cases, in Justice Douglas' cogent formulation, are 'droning on and on.'

The Green Bag, incidentally, is a must read. Perhaps not the most important scholarship you'll find on the net, but certainly some of the most interesting and entertaining.

February 07, 2004

Stupid Web Tricks

Oh, boy. Check out this link.

No, I've not all of a sudden gotten a job at Dell. This is an example of really bad site design. Check out the URL: it has the text string to be used within it. (Where it says: "MSG=we+are+on+the+phone"...) Whatever's in that string appears as the message on the page. Which means you can make your own Dell webpage saying that its European operation is on the phone to George W. Bush. You could get it to say whatever you want, really. Want Dell to come out against the War on Iraq? Write in a political message of your choice, send the link around to all your friends, and watch a net rumour start.

OK, assuming you have nothing better to do with your time...

(link from NTK, sort of. They had Dell phoning Anne Widdicombe.)

Things I Didn't Know

Note for future 1Ls applying for jobs: read the directions.

We had a big presentation last term which included the fact that we weren't allowed to write GPAs on our resumes. "Fair enough," I figured, "they want employers to make their initial selection based upon resumes and not GPA or class rank. We can send a transcript if the employer requests it. That makes some sense. Not sure if I disagree with it or not, but I can make heads or tails of it."

So I've sent out a bundle of resumes, sans any information on grades. Today I talked to Careers Services, who told me this was a mistake.

Apparently the policy is that you can't send out a GPA. You can, however, give a highly-skilled recruiter your transcript, with three letter grades that they can turn into a GPA whenever it suits them. Try as I might, I really can't find a justification behind that policy. I presume one exists, but it doesn't pop into my head.

Moral of the story: don't assume that something's so just because you figure it makes sense. Check with the folks who know the rules. (Which means, incidentally, don't take my word for it. I'm giving you the benefit of my mistakes.)

February 06, 2004

Legal Arrogance

One thing law school is quickly teaching me is how isolated legal thinking is from that of the rest of society. This isn't necessarily a bad thing, but people sometimes forget, usually when it's convenient for them, that this is the case. Take Joanna Grossman in her Findlaw column today:

The Massachusetts Supreme Court's Goodridge opinion was quite clear that it was denouncing the exclusion of gays and lesbians from the institution of marriage itself, not just the denial of the benefits of marriage. The Senate's "separate but equal" response was thus constitutionally insufficient, and rightfully rejected. Still, the ease with which it crafted and agreed upon a civil union law is a testament to the powers of social change: In just four years, a "civil union" has become a familiar, accepted relationship form.

No, it hasn't. What has happened is that a legislature attempting to implement popular opinion as much as it can given tight time constraints has tried to come up with a legislative compromise. Politically, civil unions aren't demonstrably 'acceptable' in Massachusetts, or gay rights activists would have had little problem achieving such a change without the courts, and a clunky marriage amendment wouldn't even be up for debate. Ms. Grossman may think what she wishes about whether this is legally reasonable or not, but to pretend that what is accomplished by highly educated elites well-connected to a system of power (and here I mean attorneys, not homosexuals, before anyone jumps down my throat) represents some kind of democratic 'social change' is deluding oneself. The legislature did what it had to because it was forced by the least democratic of institutions, not because the hearts and minds of the people of Massachusetts had changed.

Variation on an Old Theme

Hi, fellow 1Ls. Disappointed at all the dings one gets from the hundred or so law firms we spammed with resumes? Here's a variation on an old internet joke that might brighten your day a bit:

BIGLAW LLP
666 Market Lane
New York, NY 10000

Dear BIGLAW Firm:

Thank you for your recent letter. In view of my summer employment needs, I regret to inform you that I am unable to accept your refusal to offer me a summer position at this time.

I and my fellow students have had a very successful rejection collection program this winter. I assure you that it was a difficult decision, as I have been rejected by many high quality firms of talented lawyers such as your own. With such great interest, it is impossible for me to accept all refusals.

I am sorry that your rejection does not meet with my needs at this time. I look forward to starting summer employment with you as soon as finals are finished, and invite you to reject me again for your 2005 summer associate program.

Best regards,

A Law Student


February 05, 2004

A Question to Which I Do Not Have An Answer

As almost everyone already knows, and I've not commented on yet, the Supreme Judicial Court of Massachusetts has legalized gay marriage. I've said it before: I'm not particularly against gay marriage per se, but I object to this kind of 'interpretation' of new rights by judges. My support for the Federal Marriage Amendment is more of a game-theory lesson (if a judge gets smacked down by an amendment which will take innumerable years to reverse, he's less likely to behave as an imperial judiciary next time) than any particular feeling about marriage. I'm not likely to get married any time soon--so it's not really my game.

Anyway, one thing I'm wondering about is the authority of the Supreme Judicial Court: does the SJC's power of judicial review arise explicitly from the Massachusetts constitution, or is it the result of interpretation (like Marbury v. Madison)? And if the latter, what is the result if the Governor pulls a modern-day Andrew Jackson and merely refuses to enforce it? (Note, this is more game-theory speculation--it's obviously not going to happen.)

A better question: why am I wondering about this when I'm behind in my reading? Ah well. At least looking through the Massachusetts constitution got me some Westlaw points.

February 04, 2004

Please Welcome

Please welcome Josh to the list of CLS bloggers now included in The Continuum. He was even kind enough to generate a custom CGI script to generate his new RSS feed, because Livejournal doesn't allow you to limit the length of your description tags.

As always when I add a new blog to the Continuum, his initial set of links all show up at once. Not much I can do about this, unfortunately.

Serious Artistic Value

Frequent readers will know that Serious Law Student and I disagree on many things: anonymity, politics, music, you name it. It appears, however, that one Columbia professor of Constitutional Law agrees with her on Justin Timberlake[1]:

By describing the "whole performance" of Timberlake and Jackson as "onstage copulation," FCC Chairman Powell may have been laying the groundwork for an obscenity charge. Such a charge would likely fail, however, because the performance had serious artistic value.

Who knew?

OK, teasing aside, this is one reason I have a very hard time taking Constitutional Law seriously. One of my classmates posited a 'straight face' test earlier this week, which I'm going to modify to be: 'does anyone think that a non-lawyer, presented with the judge's decision, could try to justify them with a straight face?' No matter how hard I try, baring one's hooters in public just can't fit within my definition of 'speech,' unless teenage mooning from the back car seat has somehow become a form of high oratory. The trouble is, as much as this makes sense to me, I'm pretty sure I'm on the wrong side of the Court on this issue.

Which is why whenever a judge reacts with horror (see Question 4) at the suggestion that people think judges have a preferred political outcome to which they work their way by clever if disingenuous logic, I think they're not being entirely honest with themselves. I doubt they do so regularly, but it is incredibly difficult to reconcile Supreme Court thought without believing this to be the case. Within the strange world of the law, 'speech' may include taking off a bra in public, and the debate then becomes whether the Constitution protects 'obscene' or 'indecent' speech. But until you've had 1,000+ pages of Con Law run into your head, the answer's pretty simple: nipples don't talk.

(Professor Dorf's article found on If Cardozo Were Alive)

[1] I'm also going to hope Prof. Dorf won't be annoyed here if I point out his facts are a bit wrong. He states that "Janet Jackson's breast was adorned with a pasty; if Pap's can be read to say that there is a constitutional right to display naked breasts in public so long as they are decorated with pasties, then perhaps the halftime show falls on the protected side of the line." However, it is clear that her breast was adorned with no such thing. (WARNING: It's the infamous nipple, care of The Drudge Report. Definitely not work safe.) Rather, she was wearing a rather elaborate piece of body jewelry, which leaves her nipple exposed and visibly pierced. How this changes his analysis of Jackson's anatomy with respect to City of Erie v. Pap's A.M. is beyond this poor student's analytical ability.

Way Behind on the Job Search

Things are not looking promising for a job this summer. I've sent out quite a few resumes (though certainly not more than a hundred, so I seem to be on the low side), but I'm 0 for 2 interviews and I'm no closer than I was two weeks ago.

I wonder if you're absolutely unemployable if you don't have a 1L summer job lined up? I'm half tempted to take this last 'free' summer and go work in a coding shop again. But what it really means is that I should spend this evening redoubling my efforts.

Primary Horror

I need to stop watching Nightline. True, watching the media play 'who do we want to nominate this week' is all good clean fun, especially after hours of reading and struggling to get resumes out the door. But the true horror hit during the commercials.

No, Dean didn't bare his breasts, and Kerry hasn't admitted to cannibalism. It's worse. ABC is airing Stephen King's Kingdom Hospital. They're billing it as "new 15-hour drama series created directly for television by the award-winning, best-selling master of horror." It's not. It's a knock off of Lars Von Trier's The Kingdom. And if the web site is any indication, it's a cheap, unsubtle knock off indeed.

It's bad enough that Hollywood ripped Hellblazer, Alan Moore and Warren Ellis's horror-as-drunken-love-letter-to-London comic, out of Old Blighty and into L.A. (And drafted Keanu Reeves in to replace a cockney, to boot!) No, now they've taken a well-crafted, innovative (and frankly, far too out-there to show on network TV) series which sent shivers down my late-night spine in Europe and run it through the meat grinder. Before this technicolor travesty hits your little screen, buy, rent, or borrow a DVD of the original so you can mock the remake properly.

(Prof. Yin, I know how much you like TV. If you're even vaguely tempted, and you've got a multi-region VCR, tell me, because I'll loan you my copy. Really, it would be an act of mercy.)

UPDATE: Less than a few minutes old, and a reader writes to call me a fool for criticizing a show before I see it. Oh yeah, and to point out a broken link.

He's got a point: Kingdom Hospital might be the best thing on TV this year. And yet somehow I doubt it will live up to the original's style, insight, or subtlety. For only one example, in the original, the 'Kingdom' isn't really the name of the hospital. It's the name of the rather goofy, but bizarre and in some cases dangerous inner coven of doctors.

February 03, 2004

Dim, Sultry, Flattering Light

Mike O'Sullivan at The Corp Law Blog worries that corporate lawyers are going to lose out in the recruiting race because hot-shot young law students are all going to watch The Practice and Law and Order, and decide that this is where the sexy hunks and 'slinky stick-thins' are.

Actually, I think that even 1Ls are a little more resistant to that kind of Hollywood-driven marketing than people give us credit for. I've found that while attending all the 1L receptions thrown by various law firms, it's pretty easy to tell the ones who were marketed well (their PR agency genuinely captured the ethos and identity of the firm and presented it honestly); the ones who were marketed badly (relentlessly on-message about whatever their PR agency suggested); and best of all, those that didn't seem 'marketed' at all. (I'm not naming names here for obvious reasons--I'm not an idiot, for one--but this isn't saying anything about law firms that isn't true about firms in any industry. Marketing is a very subtle art, and it's dead easy to get wrong. I also know enough from working at a web agency to know not to hold bad marketing against anyone.)

Still, my search for summer employment has been churning for a few weeks: false starts, a few interviews, no real bites. Maybe I should offer to put my evocative talents to use at a firm, finding a way to cast them in the 'dim, sultry, flattering light' that O'Sullivan so demands. I once blogged a whole week in the style of a Sam Spade novel--what could be more 'sultry' than that?

Constitutional Law Madness

Yes, I just finished my Constitutional Law reading at 3:30 AM. I'm on call tomorrow at 9:30 AM. I am doomed.

So of course, I'm cooling off by participating in a meaningless internet quiz-type thing. Here's a map of all the places I've 'visited,' where that means 'hung my hat there for at least a night.' Looking at the world map, I guess I'm not that well-travelled. But then again, I've lived a lot of places, rather than just visiting.



create your own visited states map
or write about it on the open travel guide



create your own visited country map
or write about it on the open travel guide

February 02, 2004

There are Coy Summer Associates?

As a still-unemployed 1L, I got a wry chuckle out of this parody of To His Coy Mistress. Though I think the rhyme could use a little work. (From Notes from the Legal Underground.)

Goodbye, Mr. Wolfson (or, How Not to Let the Turkeys Get Your Down)

Sadly, it seems that Adam Wolfson has given up the ghost. That is, Cicero's Ghost, which is no more. It seems that after Adam posted an entry about him getting a summer job, several anonymous authors took it upon themselves to call him an ass, a braggart, and probably some less savory things.

To a great degree, thus is life online. There's already been discussion of this at En Banc, and Heidi excoriates the 'Little Green Anonymous Monsters' as well as I ever could. [1] But for all that, the problem is not going to disappear. Critics, and especially anonymous critics, peppered WWIV bulletin boards and NNTP, and they're not about to disappear from the web anytime soon. So I'd like to offer a practical guide for some of my fellow law school bloggers, from someone who's skinned a few trolls [2] and has a few flamewars under his belt:

1. Use the Delete key: I don't know where the idea became popular, but some bloggers believe that because we open up our comments sections to the public, anyone has the right to say anything they wish on our site, and that not allowing them violates some ethic of free speech. To which I urge you to answer: bollocks. You're the proprietor of your site, and if someone is being abusive, mean, or otherwise distasteful, there's no harm in using the delete key. If the person is persistent, you can use IP banning or .htaccess (assuming your system allows this) to make it even more difficult for them to post.

Just like a barman can ban disruptive patrons, there's no reason for you to let someone else make your life miserable. So long as you're blogging for fun, no one should get to take that away.

2. Invite a Buddy on a Troll Hunt: Out in the deep, dark forests of the internet, it always helps to have friends. When some anonymous critter decides to start having a go in your comments section, it's a perfect time to send that friend an email inviting them to go troll hunting. Tell them that someone's being ridiculous, and give them carte blanche to let that person have it with both rhetorical barrels. You get some of your best comments that way.

For instance, my frequent readers will be familiar with Martin, an old friend and co-worker of mine who is easily as far to the left as I am to the right. Whatever our political views, he's usually quite civil. But I take a lot of comfort in the fact that I can wake up in the morning, find that someone's been an idiot, and there'll be Martin saying something like, "Would X's mother please take his crayons away from him?" Priceless.

3. Use it as a moment of self-reflection: There are mean, spiteful, cruel people in the world, and the truly horrible thing about them is that sometimes they're right. One thing to consider whenever you receive hurtful criticism is whether, in the midst of the vitriol, there's a grain of truth. For instance, earlier this week, Carey decided to post his grades in his blog. He got a lot of flack for it.

Now, I most explicitly don't condone anyone who sent hate mail to Carey. That being said, I'm not sure what he did was right, and it probably made some people feel pretty badly, since he was disappointed with a GPA which was, frankly, pretty damn good. (Congrats, by the way, Carey.) The very forcefulness of the language thrown back at him may have made him stop, think a bit, and reconsider. Knowing him, he probably didn't change his mind (and I'm not certain he should have), but those moments of injured reflection sometimes make us better people. And the rest of the time, we can be satisfied that our subsequent fury with such trolls is rightfully ours.

I've written a lot of things on here that I've later regretted, and I've said some things online I wish I could take back. A lot of what prompted me to rethink what I say and how I say things was spurred on by quite vehement reactions from readers that shocked me and made me rethink my position. It would be nice if the people who pointed these things out to us were always nice people, but the world doesn't seem to provide every Emperor with a kind little girl to show him that he has no clothes.

4. Consider the source: In contrast to the advice above, if you get a particularly hurtful commentator who doesn't add much to your thoughts but does hit you pretty hard, consider this: there's a reason they call cheap shots cheap. If you've enabled anonymous posting, then many of your commentators will have precisely nothing to lose by cutting you down, and they'll think they've got everything to gain.

Well, look at it this way: they're reading you, aren't they? You're not reading them. You didn't come to some work of theirs, prostrate yourself before them, and beg for mercy from their wit and intelligence. Most of the time, they don't have the backbone to give themselves a name. They're trying to make themselves feel big, but they can only do it by slicing at the kneecaps of people bigger than they are.

Or to put it another way, 'a man can be judged by the caliber of his enemies.' I consider to be an enemy to be someone inimical to my interests who has the power to change what I can or wish to do. So really, it's just a matter of asking yourself if this person is worth accepting as an enemy. Does he add to your caliber? I mean, if Eugene Volokh or Larry Solum were to show up in my blog and call me an idiot, it would be worth engaging. Even if I lost, the game would be worth the risk. But an anonymous poster leaving the single message, "That was pretty idiotic?" Not worth calling an enemy, really, is he?

Anyway, that's my four point suggestion for living with the fact that trolls will never really be eliminated from the Blogospheric ecosystem. As always, constructive commentary and further advice is appreciated.

[1]: Quoth Heidi: "So learn to be constructive now. It'll save you a Harley and a wooden love affair in thirty years."

[2]: I don't know if it's still current parlance, but 'troll' used to refer to someone who roamed about USENET boards looking to get into fights and disrupt things.

Do They Sexually Harass People On Boats?

I'm working on my outline (due tomorrow) for my moot court case. After a semester of Civ Pro that focused heavily on Title VII sexual harassment claims, and the prospect of yet another such case in moot court, I'd like to say:

Would the fiction men of the world please stop harassing the fictional women of the world so that I can stop defending their fictional employers???

Seriously, next year I'm going to take Tax, Admiralty, Bankruptcy... anything that keeps me away from Title-bloody-VII. Columbia seems to be conspiring to turn me into a man defending the employers of lecherous men.

February 01, 2004

Wonders of Interconnectivity

Fed up with how ghastly and unusable the UK National Railway site is, two intrepid individuals have gone ahead and remade the system in a way that is workable, quick, useful, and browser-compatible. No, they're not pretty, but they'll get you where you want to go quite quickly. Which I suppose goes against the ethos of British railway systems.

Sadly, they're almost certainly in conflict with the Terms and Conditions of the website itself. Someone with more knowledge of copyright law (and particularly English copyright law) would be required to judge this. [1] Pity if it is, though.

(Link via NTK.)

[1] It goes without saying that this isn't legal advice, as I'm neither qualified or allowed to give it. Really, I hope it's fair use.

MISSING!

What the heck happened to January?

Giving The Devil His Due

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