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May 29, 2004


At 7 AM tomorrow, I'm out of the house and on the road to Tokyo. Until I figure out how to get an internet connection (no blogging from the office, obviously), you may here very little from me. But stay tuned, I'm sure Japan will be worth writing about!

Not entirely documented feature of MT-Blacklist

Some of my fellow MT bloggers with comments may have gotten a lot of spam from a particular email address: hrie@yahoo.com. I'll leave out the vile invectives, all deserved, that others have heaped upon his sorry head, and merely point out that "Hrie"'s annoyance is his habit of shifting IP addresses, thus making him more difficult to block.

Except that, having tested it, MT-Blacklist has a "semi-documented" feature. (The author mentions it in a comment I found, but I didn't see it in the manual.) Basically, you can add email addresses to your blacklist. Since Hrie seems content to keep the same email address, it works a treat.

To some, this was probably obvious, but hey, some of my readers aren't tech types. Hope it helps!

May 27, 2004

A Few Presidential Thoughts

I have to admit that I'm getting very, very tired of the Presidential blogs. Both of them accuse the other of all of the tricks of political spin, without ever seemingly stopping to notice that their own camp is following the same playbook. It's like watching two naked men throw stones at their own glass houses. (And if you can pause to think of either presidential candidate naked, you're getting the full horror of the situation.)

The Kerry blog accuses Bush of not mentioning the word "Iraq" on his homepage. Of course, if you include it as part of the "war on terror," it's mentioned all over the site, but the magic word "Iraq" doesn't appear, doubtless on the advice of some political consultant. I seem to recall a certain political topic which the Kerry blog still doesn't mention [1].

Much as I didn't like the candidate, it does make one long for the Dean campaign. The man seemed deliciously unspun, though of course I'm sure that's only partially true. In any event, posts on the campaign blogs may become more sporadic over the summer, simply because both of them have remarkably less to say for themselves. My two main criticisms remain: (a) Kerry's has too few specifics about anything on it, and (b) Bush's entire site seems to be about Kerry.

[1]: Not only does the Kerry blog avoid mentioning gay marriage as much as possible, but it's almost offensively coy:

John Kerry has a 96% Lifetime Score and a 100% score since 1995 from the Human Rights Campaign, yet he is being attacked in the press as bad for the LGBT community.

Well, let's see, why might this be? Could it be that his Toolkit for GLBT activists mentions his opposition to the FMA, but doesn't even mention his own stand on gay marriage? (Hint: he disapproves of it, at least on paper, though suddenly has become an ardent advocate of states rights.) If he's not taking flak in the media, he should be: at least Bush has a proper, credible belief on this subject.

May 26, 2004

Still vacationing...

...so the blogging is light. And I'll admit, I'm behind on reading all the wonderful things that the rest of the blogosphere has written recently.

Nonetheless, I wanted to take some time out and point you to the wonderful SpamBayes project (recommended to me by one of my readers). My father had been under a deluge of 150-200 spams/day. Given our rather obscure home-networking setup which slows down his mail access, this was taking up a lot of his time. I installed the SpamBayes Outlook plug-in, however, and now he's transfixed watching all the spam disappear into a spam folder.

Quite a nifty tool. There's probably a dozen others like it out there, but if you're looking for a good spam filter, you could do a lot worse. Oh yeah, and it's free.

May 25, 2004

Nude Dancing, Venom and Vitriol

Amanda Butler and Will Baude have been going back and forth a bit about what constitutes 'expression,' and specifically whether nude dancing should be seen as such. I'm not going to add much to the debate. From a non-legal perspective, I side with Amanda: just on a gut-level, the idea that 'freedom of speech' entails bringing one's milkshake to the yard is a stretch of titanic proportions. On the other hand, I also think substantive due process is pretty much a joke: a legal rule that all lawyers should know--it's the law, after all--but intellectually indefensible to all but the most committed realist. Being on the opposite side of most commentators, you may thus feel free to disregard my constitutional mutterings.

But whatever you think of Supreme Court jurisprudence--and there's nothing like a good Con Law course to make you think less of it--you should read the nude dancing cases. They contain some of the most meretricious logic, the most vitriolic dissents, and the most entertaining rhetoric. In particular, you should read City of Erie v. Pap's AM, 529 U.S. 277. It's here that O'Connor once again makes constitutional law out of whole cloth, announcing her expansion of a "secondary effects" test to justify a state requirement that nude dancers wear pasties. (Briefly, that the state can restrict speech rights if the ordinance would tend to reduce the 'secondary effects' of that speech, in this case prostitution, crime, STDs, what have you.) In the closest thing to common sense you'll read in any nude dancing case--in which the phrase 'erotic expression' places stripping on a level no customer of Pap's would ever give it--Stevens has a brilliant dissent (at 299-300):

The Court's mishandling of our secondary effects cases is not limited to its approval of a total ban. It compounds that error by dramatically reducing the degree to which the State's interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct.

In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Ante, at 20. To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.

How true. Reading the main opinion, it does rather seem like O'Connor believes pasties and pimps have roughly the same relationship as garlic and vampires. It's quotes like that which let you get through Con Law.

Anyway, I'm off to Grand Rapids for some pre-Tokyo shopping--I promise I'll give you more worthwhile updates when I return.

May 22, 2004

Done! (And a week of rest)

The writing competition is over. I turned in slightly less than 3,000 words of pure random drivel: I'm pretty certain than of the stereotypical infinite monkeys attempting to write the works of Shakespeare, almost half of them would have produced a better submission. Damn you, Foreign Sovereign Immunities Act!

But now things are done. Tomorrow I'm off back home to see my family, and the not-lauded-enough girlfriend is moving into my lovely little room in the Malebolge for the summer. Which means there's no time for commentary tonight: all must be packed. Oh, OK, except to say two things:

1.: If you're an incoming 1L who hasn't bought your computer yet, let me give you a big piece of advice. Go for low-weight over power. If you're stuck carrying Sullivan's Con Law book and a big-screen notebook, you're going to look like the hunchback of Notre Dame by the end of your spring term. Trust me on this.

Make up for it by buying a docking station and a big external monitor, if you feel you must have the power. Better yet, splurge and buy a separate desktop that you can keep at home. (This is only for the true tech geeks out there. For most of you, a notebook will suffice, but for those who want advice on the ideal law-school tech setup, look here in the next few weeks.)

2: I did a bit of work for a newly-minted graduate a few weeks back--backing up some data, doing some major hard-drive surgery--and have just been rewarded. First, I've inherited what she called "a sort of big monitor." Yes, this turns out to be a 21" Trinitron.

But more importantly, some students this year had trouble taking their exams on computer because Columbia, in an act of discrimination that the Supreme Court has not yet addressed, won't let students take exams on a Macintosh. But from this same student I've inherited a quite-old and brick-like notebook computer that I'm stripping down to the bare bones. I will then install only two pieces of software: Windows 98 (only thing for which I have a spare license) and ExamSoft. So if anyone is desperate next year, give me an email.

May 20, 2004

Someone explain this to me?

Whilst procrastinating--do I do anything else these days?--I happened upon volokh.blogspot.com, a site run by a search engine optimisation firm. Its content seems a bit odd, and I don't have time to figure out what it's doing.

I suppose it could be run by a Volokh who doesn't belong to the Conspiracy, but I'm not entirely convinced. Then again, I can't figure out why an SEO optimizer would do this--would merely owning http://volokh.blogspot.com give someone juice for anything except the name Volokh? And if not--with due respect to the Volokh clan--why would someone want it?

Honest questions, and if my more expert friends (that means you, Steve and Martin) had any ideas, I'm all ears. After 1PM tomorrow, that is.

UPDATE: OK, figured it out very quickly. The Conspiracy used to blog at Blogspot, and this guy's taken the place over in order to get a free PR6, very useful if you're into Search Engine Optimization. See all the folks who still link to that site. Do me a favor--if one of these is you, change the link and teach this joker a lesson. Mr. Glenn Reynolds, that means you. (Yeah, like he reads my site.)

UPDATE II: An astute reader points out that unless I want to give these guys my own Google juice, I should take the link off of my own entry. A very embarassed TYoH apologizes for the idiotic oversight and will return to my write-on now.

UPDATE III: I'm well-impressed by Mr. Reynolds, however. Within the space of an hour, he's updated the link.

Am I really this dumb?

Why, oh why, did I wait this long to do serious work on my write-on for Law Review? I mean, I'm actually enjoying the question--and no, I can't say anything about it--but what was I thinking? There is now no time to actually do an appropriate job on this.

Oh well. It's time to buckle down, concentrate, and pull 3,000 words out of the air. Come to think of it, it's not that much unlike my last job...

God Save the Clerk

My entry on kritarchy spawned a lot of commentary, including a number of people insisting that I must be out of my head, because I was fundamentally arguing against judicial review. Typical of the genre was:

That's our political process at work. Sorry you don't like it. If you think it really, really stinks tho, you're free in this country to gather the support of a super-majority & change things.

I was going to write a rather long entry explaining that one can support the idea of judicial review, but believe that it should be exercised in a more prudential fashion, reflecting the competencies of the institutions of legislatures and judiciaries in settling claims. Chief among my points would have been the observation that Brown didn't integrate very many schools, but the 1964 Civil Rights Bill did; and that Roe v. Wade hasn't ended the debate the way legislative settlement has in Britain. Essentially, I was going to point out that the discussion we were having was a rather complex legal argument, not just a tenth-grade civics lesson.

But you see, I've got the write-on competition to finish today, which means I really shouldn't spend the time. (At least, if I want to stand even a slim chance of getting on law review.) Thankfully, I see that the Curmudgeonly Clerk has made my argument for me:

However, when arguable and ambiguous rights such as those at issue in decisions like Lawrence (the homosexual sodomy Supreme Court case) or Goodridge (the Massachusetts gay marriage case) are under consideration, employing the words "tyranny" or "judicial review" as a rallying cry might make rhetorical sense, but it does not really address the matter at hand. Critics of these decisions are not arguing for anything like tyranny, nor are they denying judicial review any place whatever. And libertarians do the debate a genuine disservice when they fail to even acknowledge that the countermajoritarian difficulty has real salience when the Court announces new substantive rights on slim textual pretext.

Those who would stake out such an ambitious role for the judiciary have a substantial burden of persuasion to carry. Although it has long been with us, the notion of judicial supremacy, which is what Milton and libertarians advocate rather than simple review, has not been the predominant conception of the federal courts until quite recently. See Larry Kramer, We the People: Who Has the Last Word on the Constitution?, Boston Review, Feb./Mar. 2004. What I find particularly lacking about the libertarian arguments presently circulating is that they seem not grapple with this issue in a serious fashion. In addition, while keenly aware of the shortcomings of majoritarianism, they seem to be blissfully unaware of the dangers of imbuing a single, insular, and rather small institution with such awesome power and incontestable authority on the most inflammatory political subjects.

Read the whole thing. Seriously, the Clerk does this better than I could had I a week to put it together. The idea of trying for a post-graduation clerkship is looking better and better.

Note, however, that after this bloody write on is done, you'll be getting some better commentary from me, including:
*Things for up-coming 1Ls to read over the summer, assuming they're itching for it
*The pros and cons of Columbia's "Perspectives in Legal Thought" course
*A long post on preparations for going to Japan

The Amazing Ms. Lithwick

I share the Clerk's disdain for Dahlia Lithwick, possibly the most overrated legal commentator ever to put pen to paper. Particularly annoying is her use of rhetorical devices that my undergrad professors, let alone my law school professors, would laugh at:

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.

But even accepting that this was a 'persistent complaint of conservative commentators' (it's a massively trivializing generalization of a legitimate objection to broad judicial review), Lithwick's 'prescription' would only hold true if the opponents of gay marriage were judges.

The conservative complaint--properly written--generally runs along these lines: the judiciary should not ignore possible future outcomes, but should realize that as an institution it is competent at applying settled law, and be highly reticent to make new law when the outcomes of such a decision might be debatable. This would be because conservatives in general consider the legislatures to be more competent institutions for such things. (As, indeed, the Democrats did in the 1930s.)

Consideration of slippery slopes are properly a matter for consideration. (It's notable that she quotes Volokh as one who argues for taking slippery slopes seriously, but doesn't link to the article where he finds a slippery slope that leads to gay marriage.) They're matters of consideration for legislatures, commentators, and the public in general. Yes, they should be subjected to analysis, and some of the slippery-slope arguments being made are ridiculous. But the fact that Lithwick can't see the difference between the judiciary, a legislature, and a commentator rather proves the point that actual conservatives (as opposed to the hobgoblins she's dreamed up) are trying to make.

May 19, 2004

Strange Google Effects

Here's one for my readers who like to watch Google. As I mentioned in the comments to a post on Massachusetts gay marriage, one of the reasons for using the term 'kritarchy' (rule by judges) in the title was because it's a fairly uncontested word, and I wanted to see how Google's search engine would respond to a use in the title on this blog. (Sure, also a good term in and of itself, and played off the idea of the Commonwealth of Massachusetts, but occasionally good ideas have multiple purposes.) As of day two, something a little strange seems to have happened.

Status as of Monday
Before I wrote the post, Googling for 'kritarchy' didn't find a single blog on the first page. For relatively uncontested search terms, that's fairly odd: blogs rate relatively highly, and are likely to use strange words. Most results were dictionary sites, a couple of odd articles, and some stuff by Paul Craig Roberts. So far, so good.

Day of Post
As expected, there were a couple of articles linking to my own, particularly from De Novo, which helped, possibly unintentionally, by putting the term 'kritarchy' in the link. De Novo is a PR5, as is this site, and so I figured that the entry would be a shoe-in to reach the first page.

And lo and behold, looking at my server logs, it seemed that the GoogleSpider arrived on Tuesday. Either that, or my logs recorded something odd. I'm still new at detailed analysis to these things, and Webstats isn't my favorite package. [1]

Today, and Other Strangeness
Which leads to some interesting results today. If you Google for Kritarchy, nothing has changed on the front page. But as of this writing, the number 11 entry is for the Columbia Continuum, a little site I run that aggregates all the Columbia Law School blogs I've found.

Here I'll admit to some confusion: the Continuum is Pagerank 4, and so far as I know no one links to it with any of those terms. And the listing there beats out an entry from Volokh (much more authoritative than myself). Furthermore, I wouldn't expect it to be indexed more often than TYoH. I'll have to put some thought into it, but any explanation of the behavior would be welcome.

[1]: It doesn't help that this blog occasionally picks up large numbers of Google hits for topics that aren't really germane, merely by crossing over into larger internet interests. For instance, because Alexandra Kerry decided to show off her breasts at Cannes, I've gotten 35 hits going to this old entry of mine. (Bizarre, because my site doesn't google on the top ten pages for that search. Ms. Kerry must have a dedicated fan club.)

May 17, 2004

Sympathy from the Devil

Some folks wonder why someone with a pick-and-mix magpie set of religious/spiritual beliefs like me is willing to come to the defense of Christians, especially evangelical Christians, so often. Well, here's why. Look through that site. Watch the trailer. Play the game. See what I mean.

Saved may be about high school seniors, but the take on Christianity is simply sophomoric. Sure, there's a lot of Christians who are overbearing in their faith--especially in high school. My middle school was right across from a Baptist church, and more often than not there was a man there handing out New Testaments to any kid who would take one, just the proper distance away from school property. One of my high school English teachers became very suspicious of me when I argued that the correct answer for Mephistopheles on a matching test could not be Satan. (I'd read Marlowe's Faustus, not just the class excerpt.) Believe me, I can go head-to-head in a "silly stories about Christians" contest with anyone who hasn't attended Bob Jones University. (Though most stories are going untold here because some of my high school friends may be reading.)

But here's the thing: no one I knew in high school, be they Christian, Jewish, Pagan, or atheist, was particularly wise in the ways of the world: we were teenagers. I look back on the screed I wrote in those days and can't escape the immediate realization that, completely without any form of divine intervention whatsoever, I was an insufferable tosser. (Plus ça change...--Ed.) And what's worse, I was an insufferable atheist tosser.

Now, Hollywood is never going to put the character that was me into a movie. There's never going to be a movie with the worldly-wise nerd who was oh-so-eager to 'disprove' any argument based on faith that ever came my way. No bigwig producer will ever bother to have Macaulay Culkin spout half-understood (and consistently misspelled) Nietzsche to people who were just trying to get on with their spiritual lives. And it wasn't just me: no scene will ever be written with students doing 'pagan' ceremonies around the flagpole just to mock other students who honestly wanted to hold prayer meetings. The Christians weren't the only folks who were nuts back at my alma mater. These days, I try to explain the memory to myself as raging hormones and insecurity.

I grew with time and the benefit of a lot of patience from some very good people of a type who don't seem to get a look-in in Saved. They were patient, accepting, and 'tolerant' in a real way, not the nihilistic, valueless sense in which the word is so often thrown about. So when I see that kind of lampooning--the kind that wouldn't be acceptable in a major Hollywood movie for just about any other group--I'll admit it gets my back up. I guess that Brian Dannelly and Michael Urban, the pair who brought us this concoction, just never got out of high school.

Welcome to the Kritarchy of Massachusetts

As just about the entire world knows, today Massachusetts starts allowing gay marriage, as imposed by judicial fiat. I have a lot of strong feelings about this, but curiously they're mostly political: over the last year I've watched everything I despise about the judiciary run amok.

The really disappointing thing to note is what the kritarchy has wrought. We're in the midst of a presidential election. This story is being carried on the Washington Post. It's in the New York Times. It's virtually everywhere, with two conspicuous absences.

Nothing on John Kerry's website, nor his blog. (If you want his opinion on the issue, you can visit this rather deeply buried page. Note that the issue is hidden under an acronym.) Andrew Sullivan and Chris Geidner (along with everyone else with a pulse and a calendar) have been quick to draw a comparison between Brown v. Board of Education and what's going on today... but Kerry, celebrating Brown in Topeka, Kansas, doesn't seem to have gotten the memo.

The same stark silence sits upon the Bush site, his blog, or at the White House. [1] You see, this is one of those issues where there are votes to be lost on either side, a fudge is an admirable stance, and... oh, yeah, it's been taken out of the realm of politics anyway by the men and women on the SJC bench.

I've opposed Goodridge from the beginning, not because I gave two hoots about who gets married to whom, but because the way this change has occurred weakens the fabric of our democracy. Congratulations, Supreme Judicial Court of Massachusetts: you've made yet one more issue that--at least in the realm of politics--dares not speak its name.

[1]I'd give you a link to the President's position on the matter, but the Bush website is so godawful that trying to find an issue is more trouble than its worth. I looked under "Compassion," the general catch-all for social policy, for a while and gave up.

Say it ain't so!

What? What's that I hear? A Hollywood movie makes implausible scientific claims in a politically biased movie? Shock and surprise.

My god. Next thing you know, someone will tell me that Michael Moore's a partisan. Or that the Constantine trailer suggests that Keanu Reeves can't act worth a damn.

(Hat-tip to the Volokh Conspiracy.)

May 16, 2004


Last night, New York was subjected to wind, rain, and lightning. It was pouring down rain, but my girlfriend and I wanted to watch the storm play its way through the city. We ran around the corner from my dormitory to Nacho Mama's, arriving under their awnings about 50 feet and half a minute later drenched to the bone.

Over the course of a lazy Saturday, we'd been having a debate about the merits of New York summer. The summer heat has never made me happy, and when it's dry in New York I can't walk through the streets without a hacking cough. Sometimes it's allergies, sometimes it's just 'particulate matter,' or whatever their calling the nasty dust which rises out of the streets here. I'm not a fan of the sun, and the humidity does not make me happy. All in all, I was negative.

Summer storms change that, though. They clean the dust from the air, and by driving most people into their homes, clean the crowds from the street. On a Saturday night, we could sit in a nearly-empty cafe, watching lightning play around the high-rises.

A storm in New York isn't like those in El Paso, where you can see the sheets of water speeding at you across the plain, or in Alabama, where the approach of the storm cell burst heralded by a sudden muggy thickness in the already jelly-like humidity. The whole thing is much more muted: down in the concrete maze of apartment blocks, you can hear thunder and see rain, but the lightning is reduced to muzzle-flashes in the distance. Meanwhile, the city itself spotlights the thunderclouds through the reflection of its ambient light.

Every so often, when the weather is right on top of you, there's proper lightning. Otherwise, it's like viewing the storm through tunnel-vision.

Exams are over now. I can spend some small time looking up at the sky, instead of down at my books.

May 14, 2004


Finally! The last of exams is done. I cannot tell you how this makes me feel. Other than to say that two pints of Newcastle Brown Ale on a stomach only filled with half a bagel and some cream cheese is a bad idea.

You will get more updates later, probably as I'm procrastinating doing any work during 'writing week.' But suffice it to say that whatever my grades may come out, I'm just bloody happy it's over.

May 13, 2004

If you're in D.C. this summer...

...you could do worse than catch the Kennedy Center's contribution to a celebration of Tennessee Williams. A Streetcar Named Desire, Cat on a Hot Tin Roof, A Distant Country Called Youth, and The Glass Menagerie. All with pretty stellar casts, including Patricia Clarkson as Blanche Dubois. She was amazing in The Station Agent. Wish I had a chance to see it.

May 12, 2004

One More Reason Not To Accept A Dorm

My suggestion to any incoming 1Ls--stay out of the dorms at all costs. You can see my tale of dorm life by looking in this category, but yesterday I ran into one more absurdity.

In order to keep my right to on-campus housing, I have to keep renting a dorm room from the University Apartment Housing office over the summer and sublet it out. While with the apartments this means continuing a monthly rent, with the dorms you must pay the entire summer term's rent up-front. Notably, I can't get loans for the summer, and an extra three-month's rent is not in the budget. Which means I'm stuck with a rent bill before I have a paycheck to cover it.

That's $2K I've just not got.

As I said, stay out of the dorms. It's just one more bit of stress you don't need.

Sorry for the Monotony

So with all the talk of the draft, sex-ed classes, and other political nonsense around here lately, some of you may be wondering if I'm still writing a law school blog. And it would be a fair accusation: after all, I'm talking about everything else. But exam period presents me with a conundrum. At this point, it's almost impossible to talk about law school without talking about exams. Most of my readers (especially rising 1Ls) would like to hear about the exams. And I don't want to talk about exams.

It's not that I don't have opinions. (Am I ever short of those?) No, the problem is that Columbia puts a high value on anonymity, which puts severe restrictions on what I feel comfortable saying. After all, for all I know, my professors all read this thing. Not only does that mean I have to avoid making specific comments on the exams, I don't even want to make general ones. My brain's fried at the moment, and all I need is some accusation of cheating arising from a slip of my pen on here.

Last term, this caused me a lot of trouble on my Torts exam, where I missed the very existence of the whole last page of the exam. (NOTE: Absent-minded students like myself are well-advised to spend the first five minutes of any exam writing headers for each question, and checking through the answer book thoroughly.) I really wanted to write about that. Then again, if I had, and my Prof read the entry... what result?

So I'm compromising. I'll write about the whole exam experience--I have the entries outlined or written on my machine--and post them after grades come out. Again, it will go with my standard policy of not saying anything harsh or offensive, but I'll try to make an honest assessment, with some advice for those who are coming after me. In the meantime... stay tuned. And I apologize for the distractions of politics.

May 11, 2004

Competing Interests

I'm going to break my normal rule of not blogging whilst inebriated. (My Perspectives final is done, the Reg State one holds little fear, and frankly, cheap Stella Artois is too good to pass up.) So forgive me if the spelling is pretty grim, but this makes a good Reg State topic.

Will Baude is hoping that the new policy in some areas of Britain--to encourage kids to have oral sex and thus delay intercourse--is going to be a good thing. He thinks it will discourage teen pregnancy. I have my skepticism. States Baude:

I know that oral sex isn't necessarily 100% safe from disease (or from whatever moral decay some people think attaches to certain kinds of sex), but it is 100% safe from pregnancy, which is especially important when some kinds of birth control are unavailable to the young (though the British system of medicine is different from the one we have here).

Well, let's look at the 'evidence' put forward by the scheme's proponents?
Now the government will recommend the scheme, called A Pause, to schools throughout England and Wales following the success of the trial in 104 schools where sexual intercourse among 16-year-olds fell by up to 20 per cent, according to Dr John Tripp of the Department of Child Health at the University of Exeter, who helped to design the course.

But does that tell you anything? How many of the girls involved were having oral sex at 16, and graduated to straight intercourse at 17? Are we any better off as a society because those acts of intercourse were delayed by a year? How much of this was merely a delay of the problem by a statistically meaningless fraction? We don't know. (Though the study does say that, "Schoolchildren, particularly girls, who received such training developed a 'more mature' response to sex." How lovely.)

More to the point, oral sex carries its own risks. Baude mentions that "I know that oral sex isn't necessarily 100% safe from disease (or from whatever moral decay some people think attaches to certain kinds of sex), but it is 100% safe from pregnancy, which is especially important when some kinds of birth control are unavailable to the young (though the British system of medicine is different from the one we have here)." You'll excuse me if the idea of raising a generation of girls with a higher rate of oral herpes or genital warts--both nicely spread through unprotected oral sex--doesn't seem like a sterling policy victory.

My dismay at this program basically rests in its uselessness. Somehow I can't imagine that British teenagers need training in the fact that oral sex is a 'safer' alternative to normal sex, expecially with relation to pregnancy. I base this on the fact that even the benighted young gentleman of Alabama, where I spent my youth, were often quite ready to encourage a young lady to participate in fellatio as a sign of affection that didn't risk pregnancy, and I never got the impression that the men or women of England were substantially less-inclined to the obvious. In the meantime, by encouraging oral sex as a way-point, you might actually be promoting health problems, a far cry from the Observer's conclusion that this "dispel[s] the fears of family campaigners who believe such methods actually arouse the sexual interest of teenagers."

To make this conclusion, you'd need more than the Observer's hope and assertion: you'd need data that these women (and, let's not forget, their partners) didn't suffer from a greater rate of oral herpes or genital warts. You'd need some idea of the baseline number of girls who were engaging in fellatio anyway. You'd need, in short, a solid defense and reasonable data, instead of the sort of article the Observer likes to print because it can score cheap points against "family campaigners."

The relationship ot Reg State, of course, is that this is the kind of hole you have to pick in a fact-pattern: how did the proponent of the idea fail to get from X to Y. But mostly, it's just an example of why I think the Observer isn't a particularly good newspaper, unless you already agree with what it says. In which case, I can't imagine why it's useful.

May 10, 2004

Pre-Perspective Jitters

It is slightly more than 12 hours until I will have to start my Perspectives exam, and I'm full of jitters. I simply don't know enough of this stuff to make it through. What I do know about Perspectives is that the following would be great band names:
Robin West and the Fetal Invasion
Lesbian Ruler (not what you think)


UPDATE: One of my classmates points out that Naked Power Organ is also a particularly good band name.


Brian Leiter has finally updated his post to explain why he took a bill introduced by Charles Rangel as a sign that Bush will bring back the draft in 2005:

A couple of foreign readers (and one from the US) expressed puzzlement at the fact that the the bills referenced, above, were introduced in 2003 by Democrats. The explanation is simple, and familiar to many U.S. readers: with war imminent--based on false pretenses, as we now know--certain Democrats made a strategic calculation (a mistaken one, in my view) to raise the specter of sending not only the poor and the working class (the core of the "volunteer" army) to war, but also sending rich white kids (the kinds whose fathers are Senators and Congressmen) via a military draft. (All 14 Democrats who sponsore the House bill voted against authorizing the war with Iraq.) The ploy failed, as all the world now knows, but the bills remain. If Bush is re-elected, the fact that these bills were introduced by Democrats will be hugely advantageous as the Bush Administration has to confront the deteriorating military situation in Iraq and Afghanistan; its inability to meet the actual terrorist threat because of the military venture in Iraq; and the demoralized and disenchanted volunteer army.

Let's be exceedingly generous to Prof. Leiter--more generous than he ever is to an opponent--and assume that Bush does want to bring back the draft, because most members of the Pentagon think it would be a good idea and the President has the political instincts of dried cuttlefish. (He's certainly introduced no evidence to suggest that this might be so, other than to suggest that things might not be going well in Iraq, and thus SHAZAM! we're bringing back the draft. And apparently we may start next spring, though again, the particular birds from whose entrails he's divined this are nowhere to be found.)

How availing would bills introduced by Democrats be? Even assuming that the Democrats didn't withdraw them immediately, why would Bush want to use them with what are obviously poison-pills (drafting of college students/women) still in them? And wouldn't he look like more than a bit of an idiot when he put forward a line of, "You see? Even the Democrats think it's a good idea!" and they answered on every Sunday morning talk show with, "Is he really too dumb to see that we weren't being serious?"

And are my memories of the Senate completely gone, or would these bills not be completely useless to Bush if re-elected? After all, after the election we're in the 109th Congress, aren't we, and a bill put before the 108th would have to be resubmitted. So unless Rangel and his friends were again to play right into the President's hands, as Leiter seems to think they're doing, these bills will be unavailing post-election.

(OK, thinking about it, Bush might get re-elected in November, and ask a lame-duck Congress to take the bills out of committee and pass them before the new Congress takes over. However, we are here entering into the kind of conspiracy theory that borders on the paranoid: there's no conceivable reason for Bush to do so, given the problems above, and one hopes the administration would be able to convince some Republican members of Congress to introduce their own bills: after all, if he can't, the bills are pretty well doomed to begin with.)

Sorry, but I can't honestly believe anyone can take this seriously. This is looking at a political joke and suddenly wondering whether the black helicopters are flying over.

May 09, 2004

Exam Status Update

Two down, two to go. Crim Law exam was a disaster, since I woke up at 9:30 for a 10:00 AM exam. Notably, the coffee didn't kick in until 10:45, so I basically took a three hour exam in four hours. Still, it wasn't too horrible.

I'm having a hard time motivating myself for the last two. After the sheer horror (which descended into farce) of the Con Law preparations, I just can't bring myself to the same level of anxiety. As always in times of self doubt, I think I should turn to science.

(Really, click the link. You won't be disappointed.)

May 07, 2004


I've made no secret of the fact that I don't like Brian Leiter. He's normally simply too arrogant to bother with, and he's not on my list of favorite reads. But yesterday he wrote a piece entitled: "U.S. Preparing for Military Draft; Could Start by Spring 2005." He doesn't say anything about it, other than to quote this piece. This surprises me, since the whole thing is so bogus, and Leiter's not usually one to be taken for a sucker.

According to the piece quoted by Leiter, again without comment:

Pending legislation in the House and Senate (twin bills S 89 and HR 163) would time the program so the draft could begin at early as Spring 2005 -- conveniently just after the 2004 presidential election! But the administration is quietly trying to get these bills passed NOW, so our action is needed immediately. Details and links follow.

Leiter is a much smarter man than I, because he's peddling subtle conspiracy theory that I can't fathom. He links to the House and Senate versions of the bills without irony, or any indication that he actually read the links. I mean:

  • Every sponsor of the bills is a Democrat: Reps. Lewis, McDermott, Stark, Abercrombie, and Rangel in the House, and Sen. Hollings in the Senate.
  • Leiter, no big fan of Bush, must also accord him a conspiratorial mindset that borders on the ingenious. The bill which the administration is 'quietly trying to get passed' has been introduced by Charles Rangel. The same guy who today is calling on President Bush to impeach Rumsfeld is also secretly conspiring to move forward the President's initiative on Selective Service. Along with his Quisling Democrats, who know that if a single Republican co-sponsors this Bill, it will be done for.
  • Maybe this is because the otherwise gender-biased Bush has logrolled. Again, Leiter quotes: "[T]his plan would among other things eliminate higher education as a shelter and would not exclude women..." Well, we all know Bush doesn't like the highly educated, right?

Of course, there's another reading of this: a few Democrats introduced a bill into Congress (in January of last year, so this thing's probably already bereft of whatever life it once had) in order to make some political nonsense. Some activists have decided to spread a little fear and apprehension by bringing back the spectre of the Draft, complete with college kids and women. And in so doing, they've crafted the kind of act least likely to get passed in our lifetime.

What I don't get is why Leiter, who even people who don't like him admits is a smart guy, fell for this. Hell, you only had to read the pages he linked to!

UPDATE: After posting this, I did a little Technorati magic and found out that a blogger called the Bad Man had already queried the Prof. about it. Leiter's response:

"By January 2003, it was obvious that war was imminent. Rangel & other Democrats intorduced these bills as a (foolish, in my view) strategic move, to try to dissuade the Administration from going forward by threatening to put rich white kids in the military, along with the poor and the minorities. However, the bills are still there, and could be sent to committee at any time."

I hope there was more to the response than that. Because yes, sure, the bills are still there. So are thousands of legislative pieces of flotsam and jetsam, and I'm pretty certain that if Bush wanted to reinstitute the draft, he'd do better than to ask for two bills written by his political opposition. Especially since a bill's sponsor can withdraw it. These bills "can be sent at any time" in the same way that "I can attend my Perspectives final in a dress." Yes, it's within the realm of the conceivable, but my classmates don't have to worry about it.

The guy got taken in, or he was being deliberately deceptive in not pointing out that the article he posted (which does more than imply involvement by an administration 'quietly trying to get these bills passed NOW') was utter bunk. C'mon, Leiter, 'fess up. The worst bit is that due to his article, other people have been taken in.

Catching Up On Blogging--Can You Tell?

Eugene Volokh takes a crack at some questions by David Frum regarding gay marriage, and to my mind skips past one problem:

4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?

No, because Texas law doesn't recognize the original marriage, so according to Texas law, the woman is unmarried. Again, no public policy of Texas is interfered with by Massachusetts' own decisions.

Certainly. But is she guilty of bigamy in Massachusetts? How about if she and her husband return to Massachusetts? Volokh skips over this a bit, because he's answering questions on how Massachusetts would affect the policy of other states. But it's still an interesting question.

Anecdotal Post, Yet of Some Substance

Amber Taylor over at Crescat Sententia is conviced that it's a good idea for Emergency Contraception to be purchased over the counter:

Setting aside the obvious mathematical error in this statement (emergency contraception is not fifty times stronger than regular birth control pills; in fact, many birth control pills can be used as EC if taken in multiples), I eagerly await the FRC's [ed: Family Research Council, with whom Amber is taking issue] lobbying efforts against permitting minors to purchase more than a single dose of any medication without a doctor's oversight. After all, we allow children to purchase 100-count bottles of Tylenol, which is of course potentially fatal if misused.

I'm speaking well out of my expertise here, but hopefully some of my doctor friends will chime in, because I simply don't buy this. I might as well argue that I look forward to the day in which Amber advocates getting rid of prescription medication altogether, since any medication on the market is presumed to be safe if it's properly used. This is some powerful stuff, and fits my layman's knowledge of what is properly 'prescription.'

I remember running into emergency contraception during my first year at Oxford: I believe the English were a little swifter to get it to market than we were, though this could be my memory. The women who took it looked pretty dreadful: either the emergency contraceptive pills or merely taking multiple doses can result in severe nausea, cramping, and basically an awful lot of misery. This Amber acknowledges, then writes:

If any teenage girl gets the idea in her head that she doesn't need to go on the pill and can just use EC every time she has sex, she will be disabused of that notion in short order. If people are worried about overdosing, the danger is equally present with other over-the-counter drugs.

True. Nonetheless, EC in its working order can normally make one sick as a dog, and that's not counting for outliers. For a 14 year old living with parents, this may result in all sorts of problems. For instance, a young girl struck with nausea may be taken to the hospital, where (supposing she doesn't say what she's done) she may receive inappropriate treatment. And that's just off the top of my head. I'd want to know the data for contraindications among very young women, and how this might be affected by their ability to get medical attention in situations in which they had good reason not to give their parents (or possibly caregivers) full medical information.

Having taken a look not just at the newspaper, but the FDA's advisory board's opinion suggesting approval and the FDA's non-approval letter, the accusations of political influence in the press and by Amber seem a bit premature. First, the commission seems open to a plan for making the drug OTC for women over 16 and prescription-only for those younger. Secondly, it looks as if approval would be forthcoming if they showed that the drug is within safe tolerances for very young women, and my guess (although it's not discussed) is they'd have to show that no risk is posed by young dependent women going through physical trauma without their parents knowing the reason.

Again, I'll just go back to layman's knowledge: that's powerful stuff. And it's powerful not just in an 'overdose' kind of way, but in its recommended dosages. The argument doesn't pass the political stink test for me, but in the other direction: while true, folks like the FRC live for the (never to come) day when contraception will be unGriswolded, there are others who want to make sure that no one, no where, can tell a girl no matter how young that she is not allowed to have sex, nor to avail herself of the equipment allowing her to do so. If that might be dangerous to her... well, 'tis a pity. I'm not one of those people, and I'm not willing to accuse the FDA of that without a lot more evidence.

(Oh, in case you're wondering why I'm 'wasting time' reading stuff like this: it's good practice for Reg. State fact patterns. Especially reading the back-and-forth between the arguments on both sides, which are so full of it as to provide endless grist for the fact-pattern mill.)

UPDATE: Will Baude writes in a later post: "I also think Amber's point about containers of aspirin pretty adequately disposes of the argument that 14-year-old girls are going to overdose on Plan B any more than they overdose on all of the things we already let them buy."

But none of the FDA's non-approval letter seems too concerned about overdose. Nor do any of the commenters in the Washington Post article mention overdose as the risk to 14-16 year olds. Indeed, the (admittedly somewhat histronic) letter of the Concerned Women for America mentions risks of what young men might do with such pills:

The potential for the morning-after pill to be slipped to women without their knowledge or consent; and the probability of the ready availability of the morningafter pill being used to exploit and coerce women – particularly minors – to engage in risky sexual activity.

I'd not thought of that: I can't see why you'd slip a woman a mickey like that to have sex with her--at least not if you want to do it twice--but if you're a 15 year-old boy who's really annoyed with a classmate and wants to go one-up on the Ex-Lax in the chocolate milk trick? Yikes.

Anyhow, Will is quite correct that Amber adequately disposes of an overdose argument. Still, no one serious seems to be making it.

May 06, 2004

Con Law Down

Well, Con Laws over. It wasn't fun. There's probably something to say about it, but I do have a solid policy of not discussing exams until well after they're over, if at all.

That said: that 150-some page binder, nicely tabbed, with my outline? Useless.

One day, eight hours to Crim Law. I'm tired enough to drop. Why did they have to schedule the most brutal of the exams first?

May 04, 2004

Ambiguous, or Merely Vague?

Today I have received four emails with the subject lines:
She Doesn't Think You're Good Enough
His is Longxer Thaxn Yurs
Not Happy? Try this...
You have a small one hahaha

However, they were merely spam ads for viagra and various pills to 'enhance my manfulliness,' as one of them put it. They were not taunts from fellow classmates about the paucity of my outlining or the impending doom that is my Con Law exam. So thank God for small favors (and write me a reminder to rework my spam filters).

Right now, I think my time would be better spent channelling the ghost of Justice White than actually studying. I mean, at least the prior plan has some hope of success.

May 03, 2004

T-2d to Con Law

It's almost time for things to begin. The Threat Level has been elevated.

I know nothing about Con Law. With the possible exception of the fact that 'substantive due process' is about as sensible as 'slatternly virginity.'

May 02, 2004

Negative Words

Criminal Law outlining makes a nice break from Con Law panics. Nonetheless, I think I'm burning out.

Forget the fact that I was seriously considering spending lunch marking up Fiona Apple's Criminal with notation from the Model Penal Code. (Don't look at me like that. It came on the radio while I was working.) No, it actually made me think about English.

You see, I knew a long time ago that there was in fact a concept called ruth: "The quality of being compassionate; pitifulness; the feeling of sorrow for another; compassion, pity" according to the OED. Note that if you have no ruth, you are 'ruthless.'

What I didn't know is that there is a concept called reck, as in you can 'reck of' something: "To take care, heed, or thought of some thing (or person), with inclination, desire or favour towards it, interest in it, or the like; to think (much, etc.) of." Which makes sense, of course, because often in criminal law, you do not reck of something. In which case you are reckless.

I promise, more substantive posts when I'm not studying any longer. Well, OK, this vignette, which has sustained me through the day. I was chatting with a friend on Friday about how busy I was, and said, "My girlfriend is coming over to cook me dinner at eight, which means I only have a few hours to study today before I'm off the clock." And there was quite a lot of stress in my voice.

The lady I was talking to quite properly upbraided me. "Someone who cares for you is coming over to cook you a meal. You're making it sound like an invitation to a firing squad. Is that the person you want to become?"

Quite right. Sure, it's the all-important 1L exams. Except there will always be the all-important something coming up. The bar exam. My first review. The big case. The big promotion. Whatever hoop is coming up the next time. Whereas if it's taken for granted, there might not be a next meal.

In the end, the food was delightful. (I must learn to do interesting pasta dishes.) Meanwhile she showed a marvelous patience in letting me describe the various silliness or absurdities of cases under the criminal law, and helped me clear away some other tasks. So all in all, a good evening. And a nice perspective that has little to do with Perspectives in Legal Thought.

May 01, 2004

Richard Gere. J-Lo. In A Movie That Will Make You Ask, "Why Did We Need to Make This?"

Once upon a time, there was an amazing Japanese movie called Shall We Dance, about a salaryman who leads a secret double-life by taking ballroom dancing lessons. I saw it only a few years after I'd come back from spending a year working in Japan. The monotony of his commute, the incomprehensibility of some of his life, and the sheer lack of self you can feel--even when things are good--had a lot of resonance with me. It's probably the best romantic comedy I've ever seen: simply shot, well-scripted, and yet astute in its observations about its characters and their surrounding society.

So now I take a break, check the web, and find an trailer for an American remake. With Richard Gere. And J-Lo. And Susan Sarandon.

The story's so good that I doubt even Hollywood could screw it up. But if you're even vaguely tempted, please see the original first.

Giving The Devil His Due

Onward! (2)
A. Rickey wrote: Oh, there are. (Where this is bein... [more]

Not entirely documented feature of MT-Blacklist (6)
iain wrote: I love google for that - I kept get... [more]

A Few Presidential Thoughts (9)
J wrote: The point of the quick MLK/AA refer... [more]

Still vacationing... (6)
Peterise wrote: Finally i found what i've been look... [more]

Nude Dancing, Venom and Vitriol (6)
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Done! (And a week of rest) (4)
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Someone explain this to me? (6)
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Am I really this dumb? (9)
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God Save the Clerk (6)
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The Amazing Ms. Lithwick (1)
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Strange Google Effects (2)
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Sympathy from the Devil (2)
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Say it ain't so! (1)
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judson wrote: I understand completely about exams... [more]

If you're in D.C. this summer... (1)
Terrance wrote: It is pretty cool. I work th... [more]

One More Reason Not To Accept A Dorm (0)
Sorry for the Monotony (2)
JCA wrote: The student blawger's curse, from w... [more]

Competing Interests (9)
herpes virus wrote: Oral sex is not that safe... You ca... [more]

Pre-Perspective Jitters (0)
Mark Ashton wrote: I think you are giving the American... [more]

Exam Status Update (1)
Martin wrote: Hey, that kicks arse!... [more]

Martin wrote: Ah c'mon. It's much less serious th... [more]

Catching Up On Blogging--Can You Tell? (5)
natasha wrote: i just found out my husband is marr... [more]

Anecdotal Post, Yet of Some Substance (9)
Sarah wrote: Oops, sorry about that....... [more]

Con Law Down (8)
2005 WSOP wrote: The thing that seperates us from an... [more]

Ambiguous, or Merely Vague? (8)
Eve wrote: very nice and informal comments. i ... [more]

T-2d to Con Law (7)
Sherry wrote: I was wondering what the red button... [more]

Negative Words (1)
JCA wrote: The world is charged with the grand... [more]

Richard Gere. J-Lo. In A Movie That Will Make You Ask, "Why Did We Need to Make This?" (5)
cecilia shields wrote: loved the movie. will watch it aga... [more]

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Signing Off

Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
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Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
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Legal Ethics Forum
Interesting new Expert DQ case
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Thinking About the Fired U.S. Attorneys

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

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CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay

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

The Republic of T.
The Secret of the Snack Attack
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Where You Link is What You Get

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