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June 29, 2004

OK, Enough's Enough

That was quite a lot, but I felt a bit too poorly today to go to the gym, so I worked on the computer instead. Tomorrow I hope to get my Harajuku pictures onto a machine where they can be uploaded, so hopefully there will be some Japan stuff soon. Otherwise, you might not see much of me until the weekend, because the gym calls...

Did MoveOn.Org Sponsor the Hitler Advertisements

[Note: You're now getting the abridged version of this entry. In attempting to link to the 'digital brownshirts' speech of Al Gore's, now hosted on that fine purveyor of good political taste, MoveOn.Org, Adobe Acrobat crashed my editing window. What follows is much less ornate, but largely the same argument.

For those who don't want to read it all, the short answer: it's a bit rich for MoveOn.Org and their supporters to wax poetic on how horrible it is to tar the organization as the kind that would make a Bush/Hitler analogy when their front-page headline is a link to Al Gore calling the President's minions "'brownshirts'. [1]]

In my previous entry on the George Bush/John Kerry 'Who's misusing the holocaust' entry, I was severely taken to task by several readers for having stated that the ads were from 'from a rather infamous Moveon.org advertisement.' The counterarguments have variously raised that (a) the ad was not 'sponsored' by MoveOn.org; that (b) they withdrew the ads and 'apologized'; or that (c) they did not represent views that could be attributed to MoveOn.org sufficient to call them a 'MoveOn.org advertisement.' I have to admit, to me it's a rather unexpected avenue of defense of the organization, particularly from some, such as my friend Martin, who have sufficient marketing and internet background that they should at least recognize MoveOn's responsibility.

Had I the chance to write it over again, I'd probably change the phrasing to indicate that it was a contest entry. Nonetheless, I'm happy to stand by the original assertion, given that I knew of the contest at the time, and didn't consider it a stretch to attribute them to MoveOn. To demonstrate why, I'll illustrate the way in which I responsible for comments here at TYoH--if only to show that I hold to the same standards. In so doing, I'll also cover a couple of the peripheral issues that surround this dispute, and the subsequent Bush ad.

Were the Ads 'Move On' Ads?
Simply put, MoveOn would like to disclaim responsibility for the advertisements because:

None of these was our ad, nor did their appearance constitute endorsement or sponsorship by MoveOn.org Voter Fund. They will not appear on TV. We do not support the sentiment expressed in the two Hitler submissions. They were voted down by our members and the public, who reviewed the ads and submitted nearly 3 million critiques in the process of choosing the 15 finalist entries.

We agree that the two ads in question were in poor taste and deeply regret that they slipped through our screening process. In the future, if we publish or broadcast raw material, we will create a more effective filtering system.

Now, before I make a statement as regards to the merits of the claim above, let me make one assertion perfectly clear about TYoH:

I sponsor each and every comment made on Three Years of Hell to Become the Devil. Indeed, there's little way for me not to do so.

This is simply a matter of how the site is structured. I pay for hosting (including the annual payment to be made tomorrow), I pay for the software that I use to create it, and I pay for any residual expenses that I incur. If you're posting a comment here, it's riding on my dime. Does that mean I agree with everything on here? Given the amount of personal criticism I get from my comments, the answer is either a solid 'no,' or I'm the most self-loathing blogger ever to set up shop. Nonetheless, I sponsor them: if it weren't for me, and the money I've spent, these discussions would not be here.

Now, what goes for me goes triple for MoveOn.Org. I'm a relatively tiny website, with a law student's time and budget, and my posts try to invite a relatively open conversation from both sides of the political aisle. On the other hand, MoveOn.Org has a membership far beyond my possible grasp. They sponsored a contest with an express purpose of opposing an individual candidate. Further, they set up a website, provided thousands of MB of valuable bandwidth, and put their brand to bear behind hundreds of adverts. For this reason alone, I'd be happy to call them MoveOn.Org ads. The fact that they're part of a 'contest' does not mean that they appeared from some marketing equivalent of abiogenesis.

But Why Would MoveOn.Org Be Responsible?
In all of the discussion of this, the issues and facts have gotten fairly blurred, made ever more difficult by the fact that MoveOn.Org, Moveon's Voter Fund, and Bushin30Seconds all have different websites, with different pieces of the puzzle on them. None of it makes it entirely clear what exactly happened, so I'll give you the two relevant scenarios, both put in the light most favorable to MoveOn.

Scenario One
MoveOn.Org sets up the entire apparatus of a contest website, puts aside the bandwidth and purchases the URL. They plan, design, and put aside various amounts of funds and manpower for their contest, and promise to book SuperBowl time for the winner. (That they didn't get it is a bit irrelevant here.) After all of this, they put absolutely no screening process or editorial control on their site before the ads are made available for download. A few days later, after complaints, they take down the offending ads.

Now, if this is true, the people responsible for this campaign, all the way up the line, should have the words "INTERNET NEWBIE" tattooed on their scalp, a full copy of Godwin's Law tattooed on their ass, a dunce cap superglued to their scalp, and special laws passed to make sure none of them can get near a keyboard again. This--and I hope Martin would agree--is just dumb. Given MoveOn's size, the fervor of its adherents, and heck, just the open nature of the internet, you would have no idea what you would be spewing out from your server an hour after you launched the site. The legal ramifications would be galling, much less the publicity risks. [Update 1]

But, I hear you ask, isn't that what you do with your comments section here on TYoH? Well, sure but it's a risk I take consciously and conscientiously. This is a small-scale site, most of whose readership is either friends or other law students, on average an educated, moderate, and cautious bunch. I figure my chances of anyone posting anything that would make me lose a spectacular amount of face is low. (I'm not even a student senate candidate.) And if such were to occur, removal would be as swift as I could make it, a ban on that user as complete as technology allows, and an apology unqualified. This site is my responsibility, and you should expect nothing less. I've already banned users, or in some cases written an offended party and asked if they wanted the entry taken down or a chance to rebut it.

But I'm not a highly-funded political organization doing its utmost to unseat a President. What is allowable for me is foolish in such a situation. Indeed, both Bush's blog (which has no comments) and Kerry's blog (which requires registration) recognize this in exercising editorial control. (Come to think of it, Kerry's blog still hasn't given me a password. Go figure.) The large companies I worked with when I was in the web business all recognized this as a risk when we pushed interactive solutions at them.

This isn't brain surgery. If MoveOn were truly worried about this kind of thing, I can't believe they'd not put editorial control in place. If Kerry was so worried about such things, he'd not have hired Move On's web guru Zach Exley to manage his online campaign. The risk is just too big.

(Mr. J. responds to this argument as follows: "Umm, maybe that would be because he's a web-guru, and he's being hired to be a web-guru, while the error/lapse of judgment/naivete in the MoveOn situation was one of political savvy & strategy, not one of technical ability." This would be suitable if either (a) Exley were a techy and not a strategist, and (b) if this were a small mistake. Besides, I've been a web-guru, complete with the silly moniker 'Internet Strategist': predicting these things is the job description. Seriously, this was very basic. It almost transcends the bounds of belief that it could be a 'mistake.')

Scenario Two
Roughly the same the above, except that between submission and uploading, somehow the two entries just 'slipped through.' This is slightly more favorable to MoveOn, but only slightly. One reader (Martin, actually) suggested that they may have felt no choice--that this was a 'freedom of speech' issue. But of course, freedom of speech just means that you're not to be censored by the government, not that a publisher bears no responsibility for what he chooses to publish. You can't say, "Hey, it was a contest, freedom of speech, nothing to do with me, Guv." Especially when you're footing the bill.

The only other ways its slips through is if (a) the guidelines were inspecific enough ('nothing uncivil', for instance, and your reviewer is a kid who thinks Hitler analogies are fair play), or (b) your guidelines were thorough, but not implemented correctly. Both would be species of carelessness, but neither would absolve the fact that MoveOn put them online and distributed them. In which case, I'd say their opinions didn't reflect my own opinions: what MoveOn has done. But it wouldn't invalidate the Bush campaign's complaints--I let the genie out of the bottle. They wouldn't stop them from being my ads, just as any comment that appears here is a TYoH comment.

Would I hope that if something like that got posted on my site, I'd get a bit more slack? Sure. But on the other hand, as the debate on this site shows, I don't just flack for one side of the fence, my comments (or 'contests' if I ever had them) have room for both sides, and I'm willing to keep things civil. I like to think I've earned that deference. MoveOn, as one can see below, doesn't exactly have that right.

So Why Does This Say Anything About Kerry, Or MoveOn.Org?
So now someone is undoubtedly saying, "Wait, Tony, that doesn't sound right. You're defending someone calling someone else Hitler?" Well, no. However, I think that if a candidate makes an ad saying, "Some of those who support my opponent--people from whom he receives aid, support, and succor--compare me to Hitler," that's a whole different ballgame. Especially if some of them do. But of course, MoveOn.Org would never support such a thing--not on 'non-contest' pages, would it?

Erm... well. Let's take today's top headline off MoveOn.Org: "Al Gore: The Bush Administration is Destroying Democracy." This highly temperate, always civil speech was given to the American Constitution Society, recently host to Justice Calabresi's Hitler/Bush 'complex legal argument.' And right in the prepared remarks PDF, what does one find but:

The administration works closely with a network of rapid-response digital Brown Shirts who work to pressure reporters and their editors for undermining support for our troops.

(emphasis mine) Now, if your front-page headline calls followers of your opposition candidate 'brownshirts,' it's a little rich to complain that you believe comparisons to WWII dictators are beyond the pale. I mean, who did the brownshirts work for?

Most certainly Kerry could probably populate a similar ad, full of references comparing various Democrats, if not Kerry himself, to Hitler. And if he did, I'd say the same thing of him: he's probably right in saying that some do, and it would be a negative ad of stunningly bad tactical strategy. But it's not the same thing as making the original comparison--or publishing it under a 'contest.'

Was the Bush campaign disingenuous in failing to mention that MoveOn.Org pulled the ad mentioned? Hell yes. Was MoveOn.Org less than forthright in its protestations of innocence and 'apology?' Well, let's just say that I would have considered good manners to suggest an actual apology to Bush for making the comparison, were it felt so heinous I pulled the ad. And if the above two weren't telling the whole truth, well, what can we say about John Kerry's fundraising letter, which fails to mention any relationship between those images an MoveOn.Org at all? Certainly no party in this dispute is being a paragon of clarity. That, unfortunately, is politics today, and largely what I write my Ridiculous Bipartisanship about. But you can't have it both ways: if you're mad at the Bush campaign, the others are using the same playbook.

But can MoveOn disclaim responsibility for the ads? Hardly. Were it not for MoveOn, they would not have gotten the bandwidth they did, the audience they did, or the popularity they did. Everything here on TYoH is sponsored by me, unless you're paying me for ad space. I just don't see why anyone would excuse MoveOn.

[1]: And for those who object to me calling Bush's staff or helpers 'minions,' please remember that here at TYoH, the term is used with much fondness...

UPDATE 1: If you really need an example of the legal risks, think of the size of the site, its multi-state and multi-national readership, and what happens if someone uploads child porn. I'm certainly not expert enough to know for sure, but I know that I wouldn't take that kind of risk.

June 27, 2004

The Strange And Wonderful

To those who are wondering what I've been doing online so much today--it's my weekend, after all--I've been spending the time trying to get Brandon Fuller's MTPhotoGallery Plugin to work. I only have access to the net through my notebook on weekends, and thus this is the only time I can make major changes to the blog.

I want to get this sorted before I head off this afternoon to Harajuku, the park where some of the strangeness that is Japanese youth collects. As I recall, it was quite an experience when I was there ten years ago, and I'm looking forward to taking some photos.

Honest Question: Are Fingernail and Hair Living?

The NYT today carries an editorial that confuses me on several scriptural points, but mostly confounds my knowledge of biology:

Some, deprived of the Onan text, say that abortion is forbidden by the scriptural commandment "Thou shalt not kill." But that commandment does not cover all human life. My hair and fingernails, while growing, are alive with my own human life. Semen and ova have human life even before their juncture. They continue to have it after mingling — for example, the fertilized ovum that does not lodge itself in the wall of the womb. Yet no attempt is made to retrieve such "dead" detritus and give it decent burial.

Ignore the obvious problems with the statement: a fertilized ovum that doesn't lodge itself in the wall of the uterus hasn't been killed in any but the most strained of senses. The article's filled with rather curious assertions. But my understanding was that hair and fingernails were actually not alive: that they were dead tissue. Am I wrong here? (Biology is not my strong suit.)

June 26, 2004

Political incivility

Well, it's been a bad week all-around for the politically civil. Yes, Mr. Cheney, we're well aware that the Senate's sense of comity should be given a memorial next to the Tomb of the Unknown Soldier, but it doesn't excuse you telling Senator Leahy to f--- himself. Save that sort of thing for when you're not on camera.

On the other hand, the left of the blogosphere has been erupting with indignation at the fact that the Bush campaign is "using images of Adolf Hitler in its campaign videos." What is often not mentioned is that the ad uses clips from a rather infamous Moveon.org advertisement.

This kind of moralism seems particularly obtuse. First of all, the argument against MoveOn.org's advertisement wasn't that it was distasteful to use Hitler in a campaign ad, but that it was odious and excessive to compare your political enemies of whatever stripe to one of the 20th century's worst moral scourges. Those who are criticizing the new Bush video fail to distinguish between comparing a candidate to Hitler, and pointing out that a candidate's supporters frequently make such an overwrought comparison. At least on this point, the Bush ads have it right: it's ridiculous for Kerry to denounce Bush's ad if he's not willing to take a swing at MoveOn or Michael Moore.

That's merely to say the ad is not morally reprehensible. It's still not a bright move. Even the Kerry website has noticed what I pointed out months ago: that Bush's website, his ads, his entire posture is simply too damn negative. There's no need to run this ad on the front page of the campaign website. Even if it had been the brainchild of a campaign staffer, the idea could have been shunted off to some politically sympathetic fringe group to turn into a net-meme. The wooly-eyed hatred of the Moores of this world doesn't need any more focus, and certainly not from the candidate himself.

This is where I'm really concerned about the Bush campaign: it's entered a bunker mentality. Under a fairly relentless barrage of criticism from all sides, it's become overly-defensive. I can understand why: when propaganda films like Moore's, screeching like that from MoveOn, all in all these things begin to hurt those who are closely involved with the candidate. There's an urge to cry 'foul' at some point. But crying foul does not befit a candidate for the presidency. There's others (like the Vast Right Wing Conspiracy of the Blogosphere) to do that. The candidate needs to remain above such sound and fury.

The Bush website should have a relentless stream of optimism on its homepage. How about a ticker noting how many of Iraq's power plants are back on line, how many schools have been started or built: the kind of mundane things that don't get covered in the news because they don't bleed, but are frightfully important? How about guest columns from some of the web's better commentators to spruce up the site? How about some actual interaction--Kerry's site gets hundreds of comments a day? But most importantly, get the images of Kerry and his cohorts off your homepage. It's bilious, angry, and the sign of a wounded tiger. Cut it out.

UPDATE: Will Baude reminds me that Cheney isn't the only pol willing to use the f-word in relation to a political opponent. We might debate whether "f--- off" is better or worse than "f--- it up," but it does put some of the griping in perspective. This election hasn't been played by the Marquis' rules.

Glancing at the Kerry blog, it's particularly instructive how some people will criticize their opponents but not their allies. My frequent rival Chris Geidner was incensed that one would use children for political ends. I wonder what he thinks about the Kerry for President lemonade stand? Ah, I'm sure those four-year olds are doing this completely independently of their parent's political views...

UPDATE 2: How sad. I found out today that I was linked off the Bush2004.com site. Unfortunately, it's a parody site, and not the real one. There goes my hopes of getting links from the Bush and Kerry blogs before this election's over...

UPDATE 3: I just noticed that Oxblog has a copy of a Kerry fundraising letter strongly taking Bush to task for using images of Hitler. Amusingly, there's no mention that the images come from a MoveOn ad.

June 25, 2004

There is being charitable. Then there is simply being dishonest.

An update on the unfortunate comments of The Honorable Guido Calabresi. It appears that the judge has issued an apology to the 2nd Circuit. But the story doesn't end there. Not if you are under the misguided impression that the New York Times is anything like an honest paper.

The article linked to above is from the NYT website, which carries the coverage via their AP wire. But now look at how that story is altered when it gets into the NYT's New York Region section.

Conspicuously missing from the Times article:

Calabresi went on to say the public should expel Bush from office to cleanse the democratic system. ``That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy,'' Calabresi was quoted saying.

(emphasis mine)

On the other hand, this paragraph is a Times exclusive, as far as I can tell:

Judge Walker [chief judge of the appeals court], who by coincidence is President Bush's cousin, did not suggest there would be any further action against Judge Calabresi.

(emphasis yet again mine)

Now, for anyone who knew a damn thing about this affair, the scandal was that Calabresi called for Bush's removal from office: the comparison to Hitler was just a sideline. That, however, gets not a mention from the Fading Lady's writer, who makes it sound like the entire apology is for a Hitler comparison. On the other hand, She can't resist a quick intimation that maybe this is all some form of nepotistic tomfoolery. One more reason to read the Washington Post...

(links via Howard Bashman via The Clerk

More Substantive Criticism of Sunstein

Professor Sunstein, guest-blogging over at the Volokh Conspiracy, is trying to differentiate between constitutional requirements, policies, and what he calls "constitutive commitments." The result is a bit of a muddle:

Constitutive commitments have a special place in the sense that they're widely accepted and can't be eliminated without a fundamental change in national understandings. These rights are "constitutive" in the sense that they help to create, or to constitute, a society's basic values. They are also commitments, in the sense that they have a degree of stability over time. A violation would amount to a kind of breach - a violation of a trust.

Current examples include the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; the right to protection through some kind of antitrust law. As with constitutional provisions, we disagree about what, specifically, these rights entail; but there isn't much national disagreement about the rights themselves. (At least not at the moment.)

Randy Barnett takes issue with the concept in great detail, and I'll let you read his piece. From my point of view, the entire thing suffers from overdefinition.

Sunstein is careful to separate these 'commitments' from any formal type of law. But in that case, it's difficult to understand how such 'constitutive commitments' are any different from a political more, a custom, or even--in the case of FDR, since Sunstein is talking about his 'Second Bill of Rights'--a political agenda. Perhaps it's merely a matter of degree: such a 'commitment' merely represents an agenda that would be difficult to change, perhaps because it's exceptionally popular. But even that doesn't ring with the tone of his argument. And then he let's you see a flash of what sits behind the curtain:

We could learn a lot about a nation's history if we explored what falls in the category of constitutional rights, constitutive commitments, and mere policies -- and even more if we identified migrations over time. Maybe some of the commitments just mentioned will turn into mere policies. Sometimes policies are rapidly converted into constitutive commitments (consider the 1964 Civil Rights Act). Sometimes constitutive commitments end up getting constitutional status (the right to sexual privacy is, to some extent, an example, with the line of cases from Griswold v. Connecticut to Lawrence v. Texas).

A little bit of analysis of that paragraph yields some pretty entertaining results. After all, we're now talking about the difference between 'commitments' which have been adopted or endorsed by no one, and 'mere' policies. These policies have been adopted according to a process (at least grudgingly) agreed to by the entire society, embodied in a Constitution, but nevertheless, they rate that dismissive 'mere.'

On the other hand, look at this 'right to sexual privacy,' a constitutive commitment that vast segments of the nation haven't committed to, not even in a legislative form. What makes it a commitment? The fact that there "isn't much disagreement about the rights themselves," apparently, although the ongoing debates on homosexuality, abortion, and gender would seem to put a lie to that idea.

True, were it put to a vote, there'd probably be a democratic concensus behind the ideas embodied in Roe or Lawrence. (Though in Roe's case, the fact that there probably is one argues for overturning it.) But in which case, such 'commitments' aren't anything of the sort--they're just broad concensuses which do have strong oppositions. So why would you need this term? What does it distinguish?

Well, two things, really. First, these are 'constitutive,' a word only a fragment away from 'constitutional,' and thus give a feeling of being grounded, basic, stable, and--nicely--right-thinking. These are the opinions of those make up the bedrock of our nation, it seems. Secondly, they're 'commitments': something which implies an agreement to which one really should ascribe. After all, one can break a commitment to ones wife, to one's children, to society, and now these can be constitutive. Thus, those who dissent against such ideas are not merely an opposition of differing views. No, now they have the flavor of an oathbreaker, an infidel, one who rebels against the constitutive agreements of his society.

Which brings us to the last objection: Sunstein is stressing a term which places a premium upon power and communication. It's elites with access to media, power, and influence who will be able to declare these 'commitments,' and there is no formal system for restraining them. After all, Lawrence is a decision in its infancy, but it's a commitment; Bowers, it appears, was not. Nor was this 'commitment' to sexual freedom strong enough engage the political process, or else Lawrence would not have been necessary. Oddly, 'mere' policies seem more difficult to implement than things that Sunstein would consider a 'violation of trust.'

In the end, there's already good words for the hodge-podge of concepts that Sunstein is tying together: mores and customs; concensus; plurality viewpoints. They simply don't have connotations that allow one to gently, gently rebuke those who disagree with you.

June 24, 2004

A Further Question

Scheherazade asks, appropos of her Five by Five entry, what five things bloggers would change about the practice of law, if they could. Others have responded.

It's a great thought experiment. My question, however, is a bit more down to earth: what five things will you change about the practice of law? Because it's how these things are made concrete by individuals that matters.

I'm going to think about it. Maybe by the end of this summer I'll have come up with my five oaths.

Methinks He Doth Protest Too Much

Will Baude writes:

As of now (11:44 EST) The Volokh Conspiracy has its first post up with comments enabled (Eugene Volokh's anti-comments comments notwithstanding). This sort of guff from guest-bloggers is very unfortunate. I never even got the comments template set up over here on Crescat, so even when I tried to give in to pressure it didn't work.

(links omitted)
Y'know, there's a little sign at the bottom of Crescat giving me a thank you for helping them when they have teething troubles. All he really had to do was give me Admin privleges when I was guest-blogging a bit ago...

June 23, 2004

Critiquing Cass Sunstein

Since I'm in Japan, I'm going to feel free to nitpick Cass Sunstein's latest piece on The Volokh Conspiracy, "Holmes Haiku":

Ok, it's not quite a haiku. But as sentences in Supreme Court opinions go, it's not all that far from that: "Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." That's from Holmes' 1918 opinion in INS v. AP.

No, it's not even close. It's reasonably close in syllables--enough that Prof. Sunstein's caveat would cover it--but it doesn't contain a kigo, a word referencing a season. Indeed, it has nothing close, unless one wants to apply 'value' to a season. Since most of the annual general meetings of Japanese corporations are occuring about now, maybe you could stretch it to reference summer. But I don't think that's what Sunstein was on about.

I only mention it because some haiku afficianados of my acquaintance get rather miffy when people start talking about things being 'like haiku' when what they mean is 'short.' As a friend of mine once sniffed: "When we already have a decent word like epigram, why do we need to stomp on a Japanese one?"

Hitchens on Moore on 9/11

From Hitchen's Slate piece on 9/11:

However, I think we can agree that the film is so flat-out phony that "fact-checking" is beside the point. And as for [Moore's threatened] scary lawyers—get a life, or maybe see me in court. But I offer this, to Moore and to his rapid response rabble. Any time, Michael my boy. Let's redo Telluride. Any show. Any place. Any platform. Let's see what you're made of.

Buy me tickets to that show. I'm not always much for Hitchens, but blowhard from Flint would be just out-and-out outclassed. If you're looking for dinner-time conversation fodder to use against the most rabid of Bush-haters, read the Hitchens article. Otherwise, 9/11 looks to be something that serious people can ignore.

The Honorable Judge Calabresi

The Curmudgeonly Clerk has done his usual fine job dissecting the trouble with Judge Calabresi's recent outburst to the American Constitution Society. Basically, may have crossed a line of ethical conduct for federal judges by advocating the removal of President Bush.

Now, let's face it, the fact Calabresi wants folks not to vote for Bush isn't the best-kept secret since the location of Saddam's WDM. And suggesting to members of the American Constitution Society that voting for Bush might be a bad idea could be the single most redundant political action ever done by a supposedly non-partisan entity. So I'm not going to go over whether the Honorable Judge dishonored his oaths: the Clerk's accusations speak for themselves. Instead, I want to examine two peripheral issues.

First, let's take one statement he's reported to have made. Like Prof. Volokh, I'm suspicious about how accurate the reporting has been--since I have but one original source of the quotations--but assuming it's correct, try this on for size:

“I’m a judge and so I’m not allowed to talk politics. So I’m not going to talk about some of the issues that were mentioned or what some have said is the extraordinary record of incompetence of this administration,” he said.

"What some have said is the extraordinary record of incompetence in this administration." That's one of those statements that ranks right up there with "Just answer yes or no: have you stopped beating your wife yet?" for structural dishonesty. He has in fact talked about such incompetence by alluding to it. And his position speaks for itself, simply because one who didn't agree with the idea that the Bush administration was incompetent wouldn't mention someone else's opinion--without contrast--and then say that, because he can't talk about politics, he won't mention it.

Now, if Calabresi were as strictly textualist as Scalia, I'd say he might be able to get away with this with a straight face. Still, Calabresi isn't the name that first springs to mind when I think 'textualist.' I've no Lexis access at the moment, so I'm at a loss for a direct quote from a case, but I remember reading several of his decisions, and I can't imagine he'd have given a defendant such leeway in his own court. The man who wrote that horrible meat grinder tort case we read just doesn't seem to be the textual type. (Happy to be proven wrong on this, of course.)

And that comparison to Scalia brings us to the next point. Remember all the furor over the Duck Hunt of Doom, featuring a Justice and a Vice-President? All over the New York Times for days, right?

Well, as of today, what have we of Calabresi's speech in our 'Newspaper of Record?' According to this search, absolutely nothing. Now, I know, I know, you could say that Calabresi isn't a Supreme, so maybe it's not worth the notice of the Fading Lady. But then, Calabresi does sit on the Second Circuit, with his office in Manhattan; his bailiwick, as it were, is New York; and the honorable judge isn't exactly swiss cheese when it comes to his reputation. It's certainly news, and it's news in New York. Which the NYT sometimes pretends to cover.

Cock of the Walk

In the spirit of fellow CLS Blogger Paul Gutman's letter to a fellow gym member: 

Dear Fellow Gym Member:

If your dearly beloved has been so pleased by your nightly romping that s/he has left deep red gouges over the vast majority of your back, please refrain from coming to the gym until the welts have died down. It's just tacky.


A. R.

June 21, 2004

Oh, and speaking of Rising 1Ls

I'm over here in Japan, so a lot of my blogging is done remotely: typed into text files and then uploaded quickly to avoid charges in kisaten. So I'm not real up on the latest and greatest out there in the blogosphere.

If you've started a 1L blog, especially a 1L Columbia blog, please mail me, and I'll work on putting a link up. Same rules as always apply, though: preference is given to those with working RSS feeds. (And if you're a Columbia student, tell me if you want to be added to the Columbia Continuum.)

Y'know, If I Weren't Already Involved

...I'd be seriously, seriously thinking about trying to marry this woman. (Don't worry, she's got more sense than to say yes.) Sheherazade Fowler manages to consistently post some of the most brilliant stuff about the legal profession. I'm happy to be working in Tokyo over the summer--it seems a more sane legal environment than New York--but when I worry about the future it's just wonderful to see Sherry keeping some perspective on things.

Over on The[Non]billable Hour, she and a number of other invitees are being asked to list what they'd change about the legal profession.

Hear, hear! Simply one of the most brilliant:

Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm.

Read all of the entries in the series--it's food for thought, especially for those of us starting out into this system. And for you Rising 1Ls out there--if you're looking for a mentor, you could do worse.

The Three Years of Hell Pledge of Quality

You may notice that I'm a frequent critic of people, arguments, and political arrangements. Indeed, I'm quite happy to skewer someone if I think they're putting forward an argument that's off-base, sloppy, or just confused. I rather expect that people will do the same to me, and I track Technorati so that if someone does, I know about it.

But here's my pledge: when I quote someone on here, or when I attack someone for some reason, it will be for one of two reasons: (a) it's so patently ridiculous that it become unintentionally funny, or (b) it comes from a source that I either respect or is popularly respected. In the first case, I'm hoping to draw a laugh from you, my readers, and hopefully can do it in a lighthearted spirit. That was the original concept behind most of Ridiculous Bipartisanship, although it's turning into a web-critique column.

But on the second point: there's no point in taking on the marginal or ridiculous. It's worthwhile debating with those who you respect, because it hones your skills, and if you listen you'll learn something. And it's worth debating with those who are well-respected by others because it's often worth noting when the Emperor has no clothes.

What you will not find here is a detailed refutation of the idiotic. Morons exist on all sides of the political spectrum: hate, stupidity, and ignorance can be a remarkably bi-partisan political commodity. Simply put, I could trawl the web looking for someone who's posted something inane on the Kerry blog, or point out the many errors that some less-than-erudite Bushies make. But not only would such shots be cheap, they're too easy to be worthwhile. It's a lot more interesting--and exciting--to address an issue at a complex, nuanced level than to simply mock those who never bothered to learn better. And I'm unlikely to learn anything.

Remember: a man can be measured by the caliber of his enemies.

Let this just be a statement of reality: there's a lot of truly silly people out there. They're Democrats, they're Republicans, they're religious and their secularists. But for the most part, unless they're amusing, it's not worth taking the time for anyone.

June 20, 2004

Hearts and Minds, Fear and Love

An entry on Republic of T made me curious. Pondering an American air strike that resulted in significant collateral damage, he says:

Destroyed: three houses, two families, women and children. Al Quaeda figures killed in the attack: 0. Hearts and minds of Iraqis won: 0.

I first of all question his analysis of the Iraqi populace as a solid opinion block: my suspicion is that given the amount of factional striving in Iraq, as well as the rational knowledge that those who are harboring 'resistance' units aren't really 'civilian' in anything but a technical sense, members of some factions might even approve. After all, many of the factions have a penchant for blowing up Iraqis as well.

But even assuming that no one approved, I wonder at that 'hearts and minds' comment. After all, one doesn't merely win hearts and minds by getting a populace to love you. As Machiavellli famously put it:

And here comes in the question whether it is better to be loved rather than feared, or feared rather than loved. It might perhaps be answered that we should wish to be both; but since love and fear can hardly exist together, if we must choose between them, it is far safer to be feared than loved.

For some reason, this thought jarred in my memory: wasn't there something in The Prince about just this sort of situation? And I was pleased to find my memory hadn't failed me. It's right in the same chapter:
And for a new Prince, of all others, it is impossible to escape a name for cruelty, since new States are full of dangers. Wherefore Virgil, by the mouth of Dido, excuses the harshness of her reign on the plea that it was new, saying:—
‘A fate unkind, and newness in my reign
Compel me thus to guard a wide domain.’

Nevertheless, the new Prince should not be too ready of belief, nor too easily set in motion; nor should he himself be the first to raise alarms; but should so temper prudence with kindliness that too great confidence in others shall not throw him off his guard, nor groundless distrust render him insupportable.

Guess my memory isn't as bad as I thought. Though it must be said, the rest of the passage lends little in the way of support for Bush's current policies.


If you are looking for free wireless access in Tokyo or Japan, and can read Japanese, try Freespot for Free Wireless Access. They provide free wireless access points.

(Sorry for the stilted English in this post--I'm trying to optimize for both Japanese and English Google so that other expats will find this on a search for "Free Wireless Access in Japan" or "Free Wireless Access in Tokyo." It's more a Public Service Announcement than a blog entry.)

And on the 8th day, God saw Examsoft, and it was not good...

So your friendly neighborhood tempter in training is spending part of his day today hacking Examsoft. Or rather, that's a colorable interpretation of his actions.

More specifically, I'm playing around with alternate shells to Windows XP, because I like the way that some of the shells at Deviant Art look, and I'm feeling insufficiently vain about my current desktop setup. Specifically, I'm looking at Deviant Art's BlackBox gallery, for the popular BlackBox shell. (The other option is Aston. Any recommendations are welcome.)

My thought is that it's completely possible to make either of these shells look exactly like the standard Windows interface, but with a bit of tweaking, allow ExamSoft to load whilst enabling Alt-Tab-style switching. Which, of course, would defeat the entire purpose of the program. As long as I'm going to all the trouble of trying to implement a new shell, I might as well see if bugger up the software.

Now why would a rule fetishist like myself want to break ExamSoft, and even more so, why would I admit to it? Well, first of all, near as I can tell I'm not violating any rules. I'm just implementing a shell and making sure all my software still works: certainly the ExamSoft users agreement can't forbid that. But more to the point, I'm doing it because if I can publish a workaround that makes ExamSoft useless, Columbia might just decide to junk the piece of software I want least on my computer.

Ever since I've installed ExamSoft, I've experienced some system instability that I really despise. I can't tell exactly what it changed when it installed, but I have a feeling that it's one of those, "This won't cause problems on a standard machine, but if you've modded anything, good luck" programs. My machine is heavily modified.

And now ExamSoft has made my life even more difficult. I've switched over the language options on my machine so that the default non-Unicode code page is Japanese, the date and time settings are Japanese, the Office XP language is Japanese... basically conviced my machine that all it needs to be a Japanese version of Windows XP is change its Passport. (Sorry, bad techie pun.) But near as I can tell, this means that ExamSoft is going to encode any exam I take in the wrong codepage, and thus may not decrypt correctly when Columbia tries to read the exam floppy.

Trouble is, I can't tell. I know that when I encode two test exams with different Unicode code pages, I get different encryptions even though I have the same text in the exams. But I can't tell if this is a function of the code page, or merely ExamSoft's encryption method. But I don't feel like finding out in the exam itself.

So... if it does appear that the my shell shift will break ExamSoft, I'll be sure to publish it here.

June 19, 2004

Geek Media Update

Things you ought to know:

  • Seeing that the Constantine movie will suck to high heaven--apologies to all the Keanu fans out there, but it will--some folks may be interested to know that Frank Miller's Sin City will be making its way to the big screen. Casting Bruce Willis doesn't seem a tenth so bad as Keanu, and heck, in the original book I don't think Jessica Alba's part actually had dialogue, so we're OK there. Supposedly based on Sin City, The Big Fat Kill, and That Yellow Bastard. Stars Mickey Rourke, Bruce Willis, Jessica Alba, Elijah Wood, and others... not bad. Even better: Frank Miller is actually involved, and there's rumours of Tarantino. OK, I didn't like Kill Bill, but That Yellow Bastard could have been written for Tarantino to direct.
  • One of the best works on marriage (straight, gay, or otherwise), I've seen in a while, from Randy at Something Positive.
  • For some of my friends in England who watch far too much anime, keep an eye out for whenever Monster! gets translated. Near as I can tell, a secret society of Neo Nazis is trying to breed a new Hitler in some part of East Germany. Then again, knowing my skill with translating Japanese anime, these guys may just be plotting to steal McDonald's recipe for the special sauce.

June 17, 2004


I thought about seeing a movie tonight, and the theatre I passed was showing The Passion. I was tempted.

Then I remembered: the whole thing's in Aramaic. So I'd be watching a movie in Aramaic with Japanese subtitles. I don't speak Aramaic, and of course, my college education in this language didn't include such words as 'crucifixion' or 'savior.'

Paying 1800 yen for the privilege of completely failing to comprehend a movie simply didn't appeal.

The Uplifting Company of Crows

Sometime today it hit me, as it usually does when I'm in Japan for a while: that wearing down of confidence that comes with the slow accumulation of little failures. When working in a foreign language--particularly one at which you used to be more fluent--the most basic of things becomes difficult. As any reader will find obvious from a quick examination of my work, I enjoy speaking and writing in a complex and overly-florid manner. In Japanese, this is simply beyond me, and yet I've not managed to reign myself in. I want to say, "I think The Last Samurai was a horrible parody of Japanese history. The Scottish and the Japanese should probably form an army and invade Hollywood by force." But by the time I could formulate how to say that, let alone actually pronounce it, any listener's attention would--rightly--have wandered. Instead I should just say, "I didn't like the movie. Japanese history wasn't like that," and be done with it. But even when I remember to restrain myself, it's frustrating to only show this simple side to yourself.

My reading hasn't suffered so much in the time I've been away from Japan: I read the Nihon Keizai Shinbun last night at an Irish pub while celebrating Bloomsday by downing a pint of Guinness. It wasn't that difficult, though I needed a dictionary for a few words. But I'm also trying to read Hard-Boiled Wonderland and the End of the World, a page or two every night. Given that it's five-hundred pages, I begin to wonder how I will ever read the other works of literature on my 'must read' list.

Still, lawyering is a vocal vocation, and not being able to speak perfectly shows up badly against those who are erudite. Every error, such as a a bad episode of stage fright in an introductory speech, just brings back memories of other memories of dire failure, like when I completely froze in trying to speak Japanese during an interview last spring. One failure breeds the next.

I seem to have left behind the Japan of gentleman-amateurs, where the half-fluent managed amidst a mix of newbies and the very skilled. Or maybe it's just that when you're working at the level of a law firm, the gentleman-amateurs are elsewhere. Anyway, I keep reminding myself that I don't have the advantage of having lived in Japan for the last ten years, and the other things I've learned instead of building my language skills mean something. After a while that rings hollow.

This all sounds very negative, but it's not. The moments that inspire change are very often those of dissatisfaction: one exercises harder when one starts to gain weight, one works harder as the deadline approaches. Today I went back to a bookstore and picked up some lighter reading, something I can chew over slightly more quickly between attacks on Murakami. I actually spent the time I'd set aside for studying with a phrasebook. And while the simple gruntwork is sometimes tedious, it pays off.

Like when this evening, I sat out on my veranda looking across at the park, smoking a pipe and staring at four-character compounds. Somehow the pipesmoke had annoyed a crow which had been perched overhead, and it squawked at me angrily before flying to a nearby power line. All of a sudden a mini-revelation hit me: Tokyo has crows, not pigeons. And then the big crow in the opening credits of Serial Experiment Lain made a sudden, strange sense. Shortly following that, I remembered that I knew about the crows in Tokyo, that I'd walked hand in hand with a young lady who commented about how she so preferred them to the pigeons back home. Karasu. That's it.

At the good times, it's like getting little pieces of your mind back. And the rush of memories and associations, of places you've not seen in ten years, or smells you've not tasted for half that: it's maddeningly addictive. I'm sure it will be hard work, and I'm not looking forward to all of it, but this slow remastery is certainly worth it.

Reagan's Heretofore Unknown Influence on the Youth of Ikebukuro

It's a long-standing tradition as a foreigner in Japan to laugh at some of the English one finds on t-shirts here. This is blatantly unfair, as anyone who lived through the entire "let's put Chinese characters on t-shirts" fad in the UK should know. After all, while the middle-aged housewife wearing a HUSTLER t-shirt the other day may not have known what she was advertising, they probably at least thought it was talking about cowboys: frequently folks wearing, or worse tattooing, kanji on themselves didn't usually what they were actually saying. Then again, some of the shirts are quite funny, so I'll just hope that to balance my karma, some Japanese guy is laughing at some naff calligraphed t-shirt somewhere. [1]

Occasionally you see classics, mostly centering around sex in some way, shape, or form. (I've been told of a young girl with the t-shirt 1-800-FISTF---, and Dave Barry wrote about t-shirts from a band named King F----- Chicken, neither of which story I can confirm, but it wouldn't surprise me.) Rarely do you see one venturing into politics, however.

That changed today outside Ikebukuro's Red Wagon American Vintage Clothing Store. Hanging out front, in black typeset letters on a white shirt, was:

For a moment I considered buying it, and then realized that on me, it simply wouldn't be funny.

[1]: My personal favorite was one of the spice girls, who got the characters for what she claimed was 'girl power' inked on her arm. Which was true, but I wondered if she knew that the characters she used for 'girl power' (女力) were roughly similar to those for 'horsepower' (馬力) or 'water power' (水力).

June 16, 2004


Heidi Bond mentions why she's self-censoring more these days:

I used to post more about my professors. Last semester, I said very very little about them. No making fun of them. No talking about the ones I liked. In fact, class sort of disappeared from my discussions here. Mostly. I don't know who else reads my blog, really.

This self-consciousness has also included my discussions about work. I haven't even mentioned what city I'm in because I don't want to say something that might be misconstrued. I don't talk much about work, and what I will say is the barest version of what I could say.

I have to admit to sharing her consternation at the moment. There's so much that I'd like to say about work, but I don't blog anonymously, and even if I did, I'm not certain about the ethical rules with regards to such. I actually did post the slightest bit about my work yesterday--mentioning no clients, projects, or anything--and then struck it down, figuring it wasn't worth the risk.

As I've mentioned before, there's a lot of risks to blogging anonymously. And since that post proved very useful to a number of people over the year, I'd recommend that the rising 1L bloggers out there take a look. You may disagree, but it's worth considering how your blog will frame you.

There's risks to blogging under your own name, too, simply because you've put yourself out there with opinions. Although I think I was justified in doing so, writing about my recent Con Law disaster broke one of my time-honored rules: say nothing bad about a professor. When I posted, I was worried about that, and the fact that I'm certain a few of my interviewers in August will have read this blog.

But in the end, writing and publishing is a labour of love, and I'm not about to give it up. With any luck as many people will be charmed by my descriptions of travel as put off by the politics.

In the meantime, I think Heidi has a great opportunity, if she really felt like grasping it by the horns. Since she won't tell us what city she's working in, I think she should start describing her home as The City. Given her flair for writing, we could soon have the first noir law student blog on our hands.

June 15, 2004

One more

David Brooks has a good column about the split in the intellectual elite in the NYT today:

This educated-class rivalry has muddied the role of economics in shaping the political landscape. Republicans still have an advantage the higher you go up the income scale, but the correlation between income and voting patterns is weaker. There is, for example, this large class of affluent professionals who are solidly Democratic. DataQuick Information Systems recently put out a list of 100 ZIP code areas where the median home price was above $500,000. By my count, at least 90 of these places — from the Upper West Side to Santa Monica — elect liberal Democrats.

Instead, the contest between these elite groups is often about culture, values and, importantly, leadership skills. What sorts of people should run this country? Which virtues are most important for a leader?

Knowledge-class types are more likely to value leaders who possess what may be called university skills: the ability to read and digest large amounts of information and discuss their way through to a nuanced solution. Democratic administrations tend to value self-expression over self-discipline. Democratic candidates — from Clinton to Kerry — often run late.

Managers are more likely to value leaders whom they see as simple, straight-talking men and women of faith. They prize leaders who are good at managing people, not just ideas. They are more likely to distrust those who seem overly intellectual or narcissistically self-reflective.

Worth a read...

Well, that felt better...

But after that rather long entry, I don't have much to write about Japan. I'll leave you with a brief glimpse of Japan through the eyes of one of their fast food chains, the ever-so amusingly-named Mos Burger, where I had lunch a few days ago. The sandwiches are nowhere near as big as they appear on the website. Oh, yes, and I've found my local coffee shop, which for a mere ¥550 will sell you Cafe Vienna...

Achieving Positive Goat Flow

As Heidi might say, I've achieved positive goat flow today. In an admittedly harsh form of sarcasm, I've incited Chris Geidner (of and De Novo) to quite remarkable lengths of vitriol. In the course of his attack, he manages to claim I have "no position other than that to take a position is bad;" that I do not "get it;" and most amusingly that I am the law-school blogosphere's equivalent of John Kerry. One really must reply to anything this amusingly absurd, although it's tempting to alert the Kerry campaign as well: they really must fire their image consultants. In any event, I can't remember when last I wrote a proper fisking, and I'm probably out of practice. Since this kind of flamewar tends to bore people unless it involves such liminaries as Professors Volokh and Bainbridge, I'll put it in a cut. Less political readers can skip to the lifestyle entry above.

So, to begin with Mr. Geidner's opening remarks:

Tony, in comments, wrote: "It must be quite wonderful to be so morally superior..."

I, in a snit, responded: "You have no idea."

As in all things, context is key. Remember that Mr. Geidner is a man who has made quite a name for himself by attacking relatively well-respected, and not at all anti-liberty, academics like Lawrence Tribe and Eugene Volokh for the mortal sin of having taken their opponent's arguments seriously. In so doing, they have apparently provided succor to the enemy, confidence and assistance to the untouchable, placed themselves in grave moral peril, or somesuch other vileness. Usually what they were doing was either admitting that an argument had some force, even though the conclusion might be invalid, or merely stating empirical fact. In neither of the cases above were they making particularly vague conclusions against gay marriage per se.

My comment was one of a line of such responses to Mr. Geidner's more than commonplace assertion that those that he opposes share certain moral, emotional, or mental states, most commonly hatred or fear. A typical comment of mine, for instance, pointed out that in saying that he does not understand how one of his adversaries can hold a certain position, he states more about himself than the adversary.

In any event, what follows in his piece is what I suppose is intended to be a rather personal attack. It falls afoul of my own rule, which is that a man can be measured by the caliber of his enemies: if Mr. Geidner truly felt so little can be learned from my words, one seriously wonders why he bothered to spill the ink necessary to reply. This isn't the first such attack, although it's certainly the most naked. In any event, as seen below, it seems wholly unconvincing.

It was true, though, Tony doesn't have any idea. Tony is the law-school blogosphere's very own John Kerry (or at least the Kerry we are made to believe exists). He waffles constantly, trying to mold the perfectly inoffensive position: He's not against "gay marriage," but Lord forbid anyone try to enforce an existing inequality in marriage laws.

Now, a 'waffle' is generally a change of position, and so I'm a bit mystified here. While my first encounter with my present position, that gay marriage might be resolved by simply dissolving civil marriage, was admittedly dismissive of the idea, I have grown to be quite an advocate of it. Nonetheless, that would hardly be a 'waffle,' given that the change has been remarkably consistently in one direction and was mostly solidified long before I ever hit Mr. Geidner's radar.

What I will sometimes do is make the arguments of Mr. Geidner's opponents, though I'm usually remarkably clear when I'm doing this. I'm particularly apt to take such a position when I think that those which do hold such a position are expressing themselves poorly, or representing their view badly: Mr. Geidner can be a strong, and at times unfair, advocate, and deserves the opposition. But while this might be considered many things--lawyerly, for instance--it hardly represents waffling.

Now I have accused Kerry of being disingenuous on his website by rather strongly tailoring his responses to certain constituencies. But not only isn't this waffling, but it certainly can't be what Mr. Geidner would dock me for, unless he's insinuating that in some dark, hidden place upon the web I meet with conservative allies, remove my mask, and speak my true heart in my true voice: that what I'm saying here, on his site, or De Novo is some consistently palatable cover. (And if so, what a failure I am! It obviously hasn't been overly easy on his palate.) I mention it only as a colorable interpretation as to what he might have meant, because otherwise I admit to being perplexed by an accusation of waffle.

What Tony doesn't get, and why the Kennedy-Dante interpretive quote ("The hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality.") was up for a while, is that I do believe the equality is morally superior to inequality -- just as IrishLaw believes her religious beliefs would lead to a more moral life. Social issue debates especially (although some economic debates get pretty wild), when debated by those who care deeply, are almost redundantly going to involve people with strong moral authority (at least in their mind, as well as the minds of their allies). Tony, on the other hand, is the embodiment of Shakespeare's thought: "full of sound and fury, signifying nothing." You can debate him, listen to him, and even try to learn from him, but he'll take you nowhere.

He has no position other than that to take a position is bad.

I assume that any reader of this blog will agree that if there is one thing I am never short on, it's opinions. An accusation otherwise is simply preposterous. As for where reading me will take you, well, I suppose I should be flattered at the amount of verbiage Mr. Geidner has expended to inform you that this particular emperor wears no clothes. I do not tend to need to post quotes on my blog to prove just how strongly I must dismiss someone. [1]

But to get to the substantive point: unlike Mr. Geidner, I am not an activist when it comes to homosexual rights. That is to say, to me Lawrence v. Texas enforced a preference of certain Justices for a policy outcome, and I certainly don't agree that anything sexual is a constitutional 'right,' as unwise as any prohibition might be. Whilst Mr. Geidner sees sexuality as something essential to an individual's identity, I believe that the fact that one can choose not to engage in eros places sexuality on par with smoking or drinking as elements of identity: something from which one can abstain. [2]

This leaves me in a position more favorable than Mr. Geidner: I can see in the issue of gay marriage compromises between parties who hold strong views, and one at which 'rights' are not at stake, an issue on par with bans against smoking. The belief that I do hold fast on is that legislatures are, all else equal, generally better institutions for settling political issues, and that courts are in general better issues for settling particularized disputes. On the other hand, I tend to look at those of moral certainty and, distrusting with the knowledge of the fallen that anyone has that kind of lock on virtue, seek doubt.

These positions have been constant and consistant, while issues of whether one should have a 'right' to marriage have admitted of compromise. Of course, the fact that it may also lead me to back a Federal Marriage Amendment whilst not particularly caring that much about the actual issue of whether homosexuals marriage--not out of callousness, but simply because unlike Mr. Geidner I believe other larger issues are at stake--means my positions "verge on disingenuous."[3]

Nonetheless, the above are positions, and not merely negations of them. Further, they admit of reason, which requires an answer, not merely a dismissal because they inconvenience one's preconceptions of one's opponent's moral stature. Of course, most of what I criticize Mr. Geidner for is his casual ascription of motivations and his more than casual dismissal of other's arguments, as opposed to his own substantive points, which are normally quite lucid.

When he writes about how people shouldn't use certain words and are "devaluing" them, it's clear he just doesn't get it. If having a president who wants to write your love -- the value and experience that many people place most highly in their life -- out of the Constitution isn't a good time to use words like "anti-gay" and "hateful," then (outside of physical assaults) I don't know if there is a time when Tony would find such words appropriate.

Let us leave aside the point that it might indeed be wise to reserve 'hateful'--a powerful word indeed--at least for those who advocate political assaults, if not for the assaulters themselves. Hatred of the sort Mr. Geidner describes is also a sin, a moral failing, and a mental state negating dispassioned reason: one whose arguments are truly motivated by hate need not be considered, except of course as to how one counters their consequences. Using it otherwise is to devalue 'hatred' to 'dislike' or 'disapproval.' To describe a point of view as 'hateful' is to casually state that one need not engage it with reason. [4]

Exactly the kind of engagement, of course, Mr. Geidner hasn't bothered with. The answer to his question is contained in a reasoned analysis of his own text. First of all, the FMA contains not a jot about love, else it would be the Federal Love Amendment. Hell, even anti-sodomy laws contain not a jot about love, but sex acts, which as many folks waking up with a hangover attest can have little to do with amour. So long as I'm willing to give my opposition the benefit of the doubt about their motivations, I simply assume that they don't think marriage is necessarily about love, at least as Chris is defining it.

(As I've pointed out before here and elsewhere, I hardly hold the patent on that idea: I magpied it from C.S. Lewis and Chesterton, among others. It's not unlikely many FMA supporters have read the same and hold similar views.)

Similarly, whilst love may be 'the value and experience that many people place most highly in their lives,' perhaps those who support the FMA do not share that view. A view does not become irrational simply because it disagrees with something valued by many.

So long as a rational position--even one I disagree with--exists from which a person can stand on any side, on any issue, I avoid ascribing moral failings to my opponents, unless they admit of them themselves. [5] There's two good reasons for this: first of all, I've lived long enough to know that most people don't do things because they truly believe them to be wrong or hurtful: evil is a rare--and vile--commodity and another term not to be devalued. Secondly, not casually describing my opponents as filled with hate means that I can talk with them--a prerequisite for changing their mind. Given my love of legislatures rather than judiciaries, it's sort of a prerequisite of my own faith. One seconded, I see today, by none other than President Bill Clinton:

Most of the people I've known in this business, Republicans and Democrats, conservatives and liberals, were good people, honest people, and they did what they thought was right," Clinton said. "My experience is, most of the people I've known in this work are good people who love their country desperately.

There follows in Geidner's article a discussion of how many times the word 'homophobia' appears in his text on Lawdork. Although it's a reference to my piece here, it's wholly irrelevant, as well as slightly incorrect: the word appears more than eight times, precisely where I said it does--in the comments of Chris's readers, who do not always share his discretion. But that digression brings us to one of his more interesting points:
The point of this list is that, like Tony, I do believe in careful word choice and usage. We just disagree about inequality and discrimination: I think it's an inexcusable problem we should work constantly to eradicate, and Tony thinks otherwise.

The only explanation for Tony's position is that he sees marriage for gays and lesbians as, for lack of a better phrase, a special right, whereas I see it as inequality that needn't -- and shouldn't -- wait for a Legislature (and a roughly a majority of people) to approve.

In a less charitable mood, I might may hay out of the fact that in only few paragraphs I've gone from having no position (other than that any position is bad) to having a position he takes issue with, but let's choose to believe that this is intentional, and mere hyperbole in his accusations. It is more charity than he chooses to give the difference in our opinions.

We differ not in whether discrimination is something we should work constantly to eradicate, but merely how one should eradicate it. After all, we could work to eliminate discrimination by the simple expedient of executing all those who believe discrimination is tolerable, or if that's too extreme for one's taste, by sending them to rather brutal re-education camps a la Clockwork Orange. Chris would, I'm willing to believe, balk at this. I hope he would be willing to believe, on the other hand, that I might engage a friend or family member with actual discriminatory views in discussion and debate, in the hopes of changing their own mind, as opposed to doing absolutely nothing. Which means that we disagree as to the means appropriate to use: I would stop at the judicial imposition of 'rights' not agreed by the popular will, whilst he would choose to trust in three, or four, or however many berobed men and women of legally-trained acumen. This is a question of process, not policy.

Similarly, he knows full well that I see marriage for anyone as a special right, that civil marriage is an institution that evolved to suit certain social needs that are likely now less than relevant--mostly developing on a primarily religious institution. The common argument that marriage isn't 'for the family' because those who are sterile can marry is, to me, facile: I'd be perfectly willing to say that those who are sterile or do not want children can't marry as a constitutional matter. The fact that until recently such a rule would be nearly impossible to administer (lack of technology), would cost more than society wished to bear, and has neither historical, traditional, or practical roots simply means that such a proposal is unlikely to come up, and unlikely to command respect if it did.

Supposing that [someone] [6] were to wave a magic wand and make marriage an institution solely for homosexuals--and that it had historically been so, such that there were popular assent--it would be perfectly within constitutional logic so far as I'm concerned, even if it were unwise. I wouldn't vote for such a law either: a non-waffly position perfectly consistent with my others. Chris, of course, knows this, but doesn't it make me sound so much more like a gay-basher if you can hint that I think there shouldn't be 'special' rights for homosexuals?

What it comes down to, as I've said before, is that one's credibility relies on treating one's opponents fairly: don't dismiss them, don't misstate them, don't cast aspersions on their characters, don't call them stupid unless they're factually wrong. I try to live up to that, and while I'm not always successful, at least it's the goal. Admittedly, the line which started this all off, "It must be quite wonderful to be so morally superior," was quite snide. But then, Mr. Geidner's insistence on maligning not only the opinions but the moral character of those who are my allies--I am still a Republican--does get my own goat on occasion.

[1]: (It's worth pointing out, as well, that it was I who corrected Mr. Geidner's 'interpretation' of Dante. Kennedy was pretty much making it up in his quotation, because the indecisive do not even enter Dante's Hell: "They are mixed with that repulsive choir of angels … undecided in neutrality. Heaven, to keep its beauty, cast them out, but even Hell itself would not receive them for fear the wicked there might glory over them.” The 'hottest places in hell' are nowhere near the gates, much less outside them. Hey, I named this blog for a reason.)

[2]: For the avoidance of doubt, let me emphasize that I'm not merely including homosexual sex in this category. The fact that Catholic priests, many Buddhist monks, and most other aescetic orders mandate the exclusion not only of physical acts of love but the resistance to physical and mental desire leads me to place sex on the same level as smoke or drink. Many of my contretemps with Mr. Geidner have arisen from his insistence that one could not base any prescription against homosexuality on the basis of disapproval of the conduct without simultaneously disapproving of the individual, and his resulting assumption of another's 'hatred.'

[3]: The phrase he used was, "His twists and turns verge on disingenuous in my mind and to others represent brazen attempts at hiding his true opinions.". To which I can only say, Chris, have the courage of your convictions: either call my motivations into question, or do not question them. Such an "almost" is too little an accusation to defend against and yet most certainly not a compliment, unless one for low and snake-like cunning. Full of sound and fury, indeed.

[4]: Of course, Mr. Geidner may mean that such a thing is hateful to him, but in that case he'd be placing himself beyond reason by the same token. Or, if it is to be taken to be noble or virtuous--akin, I suppose, to a righteous wrath--then it does indeed devalue the word.

It is also possible, of course, that Chris means this in the odium abominationis way, but given his general discounting of 'hate the sin, love the sinner' or status/act distinctions, this is a stretch I'm not tempted to make. I am prepared to be corrected on that point, however.

[5]: If you wear a shirt saying, "FAGS GO HOME," for instance, I'm pretty willing to call that hateful: any non-hateful interpretation of such a shirt either strains credulity or accuses the wearer of being an incredibly poor communicator. Though who knows, I might give them a listen to see if there is some rational explanation. Costs me nothing. There's a big difference between this and accusing Bush of "travel[ing] around the world asking the Catholic Church to provide anti-gay fuel to his hateful fire..."

[6]: The original to this post had 'Fairy Godmother', since I was remembering seeing Shrek with my girlfriend. However, I figured in context this might be misinterpreted. Then I tried 'wizard,' which gets mixed up in the whole Klu Klux Klan power heirarchy. I briefly considered Harry Potter, but for all I know some other interest group is busy appropriating him, and with my luck it would somehow be the Republican Party or someone similarly embarassing. So I gave up. Bloody annoying, that.

June 14, 2004


Via Boy From Troi, I find that there's a nice article by P.J. O'Rourke up on The Atlantic. It's about the horrible oppressiveness of Republicans agreeing with one another. As always, amusing, as in this passage on reading Ann Coulter:

Now, there's a certain truth in what she says. But it's what's called a "poetic truth." And it's the kind of poetic truth best conveyed late in the evening after six or eight drinks while pounding the bar. I wasn't in a bar. I was in my office. It was the middle of the day. And I was getting a headache.

As for Michael Moore:
Michael Moore's previous book was Stupid White Men, titled in a spirit of gentle persuasion unmatched since Martin Luther, that original Antinomian, wrote Against the Murderous and Thieving Hordes of Peasants. Moore's new book, Dude, Where's My Country?, contains ten chapters of fulminations convincing the convinced. However, Moore does include one chapter on how to argue with a conservative. As if. Approached by someone like Michael Moore, a conservative would drop a quarter in Moore's Starbucks cup and hurriedly walk away. Also, Moore makes this suggestion: "Tell him how dependable conservatives are. When you need something fixed, you call your redneck brother-in-law, don't you?"

To which, the conclusion:

Arguing, in the sense of attempting to convince others, seems to have gone out of fashion with everyone. I'm reduced to arguing with the radio. The distaste for political argument certainly hasn't made politics friendlier—or quieter, given the amount of shouting being done by people who think one thing at people who think the same thing.

I almost forgot he has a new book out:

June 12, 2004

What To Do In Your Last Summer Before Law School?

My Dear Wormwood,

The year's over.

It's been a long trip. And at this time of year, a lot of blawgers (for instance, Heidi and Jeremy) are trying to condense everything they learned over the year into an 'advice for others' post. It's a noble gesture, trying to calm the panic of those who are about to step into our footsteps. Heck, I remember reading Waddling Thunder--and come to think of it, Jeremy--in an attempt to silence my own nerves last year.

One year ago, I had just gotten back from England. I'd moved back in with my parents in the sleepy little town of Big Rapids, Michigan. There wasn't much point in getting a job, so I was supporting myself with freelance translation, sailing a small sunfish, and practicing for a half-marathon. (I chickened out of the last when Legal Methods started.) And what I really wanted to know was: what should I be doing with my summer?

The traditional 1L answer is: nothing. Spend your time enjoying your freedom. Catch up with friends and family. Laugh, watch TV, do all the things you want to do before you get to Columbia. All of which was good advice, but at the time, it was deeply unsatisfying to me. I'd just emerged from a relatively high-pressure job, and this was dead time. Obviously, I was doing something wrong.

So for you about to step into my inadequate shoes, here a few things I think you can do with your summer to make the entire 1L process easier. The advice below is most appropriate for those going to Columbia, but it's not useless for others. It's not going to put you ahead of the pack unless you're the kind that's already there. But if you think you've got to be doing something, otherwise you're wasting your precious time, you could do worse than the following.

Read Some Books: In your 1L year you may read more than you've ever read in your life. If you're assigned my particular Prof. Con Law, you may read more than you or your immediate family has read in their lives. Still, you didn't apply to law school because you dislike reading, and you might as well warm up.

I'd really recommend you read something like Quicksilver or The Diamond Age. Nonetheless, you're going to want to read something about law, because otherwise you're wasting your time, right?

So, here's some options. First, Professor Chirelstein's treatise on contracts. In your first semester you will take contracts, and no matter who your particular Prof Contracts ends up being, you'll feel a lot more comfortable if you've read this. Besides, someone forgot to tell Prof. Chirelstein that when you become a law professor, you have to start writing in a style that's either dry or incomprehensible.

My second suggestion would be either Constitutional Law Stories or Torts Stories. This series of books takes major cases in law and puts them into historical perspective. Since each chapter is written by a different author, some are more approachable than others--don't worry if you can't make it through a chapter or two. But if you've read these, your 1L Contracts and Con Law courses won't be completely terra incognito.

My final suggestion, however, would be to remember that you got into law school because you were passionate about something: read about that, particularly in how it relates to the law. If there's a particular area you're interested in, leave a comment, and maybe some of my readers can make suggestions.

Buy Your Computer: First, check to see how much financial aid you can get to purchase a notebook. Then determine how much you love technology. There's a lot of notebooks out there, and I'm not going to take it upon myself to give you definitive advice on a specific model. But here's a couple of things to look out for:

  • Choose weight over functionality: I bought the Dell 8500, largely because I wanted a large screen for my graphics work. While this seemed like a good idea at the time, I would have been better off choosing a cheaper, lighter computer, and then buying a docking station and monitor (or another computer--networking is easy these days) when I needed it at a later point. After lugging a huge computer around all year, let me suggest: get the lightest thing you can afford. (Another advantage: when you're out in the working world over the summer, small and slender notebooks fit more comfortably in briefcases.)
  • Don't choose a Mac: For once, this isn't just a slight a the World of One Mouse Button. At least at Columbia, the exam software that we use does not support Macs. If you're not going to Columbia, at least check with your IT department to see what is compatible. Nothing's more annoying that finding out that you can't use your computer because you've got the wrong OS.
  • If All Else is Equal, Choose Dell: Here's where I'll probably get the most opposition in my suggestions, and I should probably preface this by saying that you should pay attention to that first caveat: all else must be equal. Nevertheless, after having spent a good proportion of this past year fixing people's computers, I don't think I ran into more people with Dell troubles than any other brand, proportional to the number of that brand at CLS.
    So I recommend Dell--or whatever the most common machine is at your university--simply because if all else is equal, there are advantages to having common hardware with your friends. For one thing, the hardware is more easily interchangable: if your notebook is having problems, and you need to get data off of it, it's easiest if you can just slot your hard drive into a friend's computer and burn a CD.
    Again, though, please don't overemphasize that point. If there's something else you like, for some other reason, get that. Your computer will be a good friend by the end of the year, so make sure you start out with one you'll want to get to know better.

Get Your Work Style in Order: Time pressure is going to be your worst enemy in your 1L year. The quicker you settle into an efficient method of working, the quicker you'll be making progress in your studies. There's a lot of good books out there about efficient 1L work processes, most of which I never read. (These would include Law School Confidential, which apparently advocates a system of 'book-briefing' that involves a bewildering color-coded highlighting system. Some swear by it, I never read it.)

I can't give a lot of help here, except to tell you what I did. After several years in business, I will almost certainly live and die by an Outlook task list. Probably the most useful trick that I learned was to categorize my task list by class, and assign myself tasks for each day's worth of reading.

Also, it helps to look at each course as a project, with a definite output (generally an outline) to be accomplished to a definite schedule with a hard deadline (the exam). If this means nothing more than remembering to add the exam schedule to your calendar as soon as you get it, it's still worthwhile.

I'll add a little more as I get to it. In the meantime, I hope all you rising 1Ls have an excellent summer.

June 11, 2004

Slaughter, I'm Calling You Out

I love the Columbia Political Review. When it takes itself seriously, it's almost as good as The Onion:

Labour is getting decimated in the local elections, currently running third behind both the Conservatives and the Lib Dems. Although all results won't be available until the weekend, I can no longer see a scenario that lets Blair stay in office even to the end of the month. This election makes it crystal clear that the British public is deserting Labour in droves, and unless they want to go the way of the Liberals, supporting a Prime Minister as a party to their left steals their base, they need to act and act fast.

PM Gordon Brown by July 1. Tony goes on to be a member of the Lords and becomes as politically powerful as his predecessor John Major.

So a quick hop over to the BBC, for a dose of reality:

This would give the Tories a result on a par with its local election results achieved under William Hague's leadership in 2000.

But the Tories point out that it looks like being their biggest lead over Labour since John Major won the 1992 election.

Their biggest lead over Labour since 1992 is satisfied by almost any gain whatsoever. Anyone who thinks that a result 'on par with its local election results achieved under William Hague' is going to force a change in power, or that Blair is in the kind of danger Thatcher was--what would be necessary for a three-week shift to Gordon Brown--is living in a fantasy land. Or, I suppose, works as editor for Columbia's 'political review.'

Slaughter, if you're proven right, I'll buy you a round of your choice when I get back to NYC. Somehow, I'm not too concerned.

Con Law Disaster

Now that the grades have been posted, I think I can feel free to vent my frustration at the worst thing that has happened to me academically last term.

Kind reader, you may remember the level of terror I had of the Con Law exam? Entries like this? I'd not had such gut-shaking trepidation since my undergraduate finals. But now, I don't feel anything but a numb anger.

When I and my colleagues opened up our exam packets, we found that Professor Con Law had almost exactly copied, word for word, over a third of the exam from questions on his past papers. Moreover, he'd copied them from exams that were available on the university share drive, with model answers, in an open note exam. Needless to say, a lot of people had the model answers with them.

Indeed, I had the answers to one of the questions in my satchel, and considered taking it out. Then I remembered that before each exam we sign a sheet of paper saying that we swear to abide by some code of conduct that I doubt many of us have ever read. Certainly I hadn't. So I kept the answer far away, fearing that little hidden clause that would fail any of us who admitted to having used the model answer.

In the event, it didn't matter that much. One third of the exam was a question that my study group had used as a mock examination three days previously. As such, I had quite a lot to say about the topic. And as such, it probably doomed me.

By the time I got out of the exam, I was nearly livid. Forget the fact that after reading over 1,200 pages of bloody Gunther and bloody Sullivan, Prof. Con Law couldn't find it in him to get up off his duff and come up with some new questions. (Those that hadn't been lifted directly from past exams were for the most part thinly-veiled paraphrases.) Forget the fact that this was going to skew the curve unfairly in favor of those who practiced a certain style of study--review of past exams. No, simply put, I was enraged by the fact that a professor of Constitutional Law at a major university, who is old enough to know better and should appreciate his responsibility, put many of us in an ethical dilemma in the middle of the exam. After all, if we had the mock exams with us, would it be unethical to look at them? Whatever side you come down on as to the question, it does exist, and it was needlessly distracting.

I didn't think I could be so upset: after all, this was the exam I'd poured my heart into, the one that I felt real physical concern about. To a great degree, this was my semester. And then it got worse.

We'd all wondered what would be done about this situation. A few ideas were floated, ranging from the extreme (re-sit the exam) to the nuanced (give no points for anything that was on the model answer) to this resigned (do nothing, everyone had the same chance). I'll admit at this point that I doubt there was a good answer, just a choice of evils: whatever was done would hurt someone.

A few days later, we got a letter from the academic registrar, explaining that Prof. Con Law had heard that we were concerned. He apologized, but explained that he hadn't realized that we had more than two years of mock exams on our share drive, or that the answers to those questions had been published.

Let's take a look at just how weak that explanation is. First of all, if you're a professor, you have access to the same share drive we all do. And this particular professor had three very competent TA's--and please, none of this should reflect upon them, they were paragons of diligence--any of whom could have told him what was and was not on the share. But even if he were working alone, isolated, and techno-illiterate this would be no excuse. Anyone who has the responsibility for a law school class, particularly a bundle of hyper-competitive first years, should bloody well realize that its their responsibility to know what's been released to the public, and what's available.

(Indeed, given the persistence of online storage space, the fact that various societies keep their own archives, and the competitiveness of 1Ls, an argument can be made that it's unwise to reuse any question that's been on a released examination or had a model answer posted. But this wasn't a case of prior answers being posted on the Journal Of Bohemian Esoterica Law Review's internal academic archive: these were documents on the university's official server, documents that had Prof. Con Law's name in the filename.)

His solution to this wholly avoidable boondoggle? He was going to remove the offending sections completely from the examination.

Now, to those who haven't taken a law school examination, some explanation may be in order. This one was a three-hour exam, with multiple essays divided into three parts. Needless to say, it was unlikely that any but the very best would do perfectly on all of them. But in order to maximize your chances, you put more time into the areas you feel you'll do best at, and give your weak points a cursory examination. Or at least, that's my strategy, and it's typically successful.

In this case, it was a disaster. I almost certainly put more time into the sections that were dropped than the ones that remained. And statistically speaking, I can't be the only one who did so, even amongst those who didn't use the model answer, or hadn't been exposed to it. (Some students didn't even recognize that this was a past exam question.) Far from being a good strategy, every extra second I took from a 'valid' section of the exam was simply a waste: it amounted to nothing.

As solutions go, in no way could this be considered nuanced. Then again, it didn't take much work to fix it this way.

Please don't feel that this is a grade complaint. In the end, my Con Law result will be only a very fractional drag on my average, and perhaps not even that. What annoys me is that every grade that was given in that class is de facto illegitimate. No one was graded on the exam that they actually took. Instead, we earned our results based not on our knowledge or our skill measured by a test that we approached strategically, but how lucky we were to choose certain questions on which to concentrate. (After all, each question's weighting was labelled on the exam, and most of us wrote with those expectations.) Even if you did well on all the sections, the grade is curved: you can't know that someone who did very well on a deleted section shouldn't have done better than you.

Of all the ideas bounced around after the exam, the best one I heard was just simply to mark everyone pass/fail, and to zero the grade out of the average for those who were in my Con Law class. The response was that this simply wouldn't be fair to those who did well. But in the end, no one did well on that exam, because no one can say that they actually took the exam that was graded. Any result there, good or bad, is a fiction.

I now actually resent my Con Law class, and every second I spent in it. I resent the fact that I wasted my time on a game of roulette when I could have had four more days to work on Crim Law, Reg State, or Perspectives. And I deeply, deeply loathe the fact that a person who had the responsibility for writing an exam that might determine whether his students get onto Law Review, whether they get that summer job they were hoping for, whether they achieve the dreams that they may have had for decades couldn't give a damn enough to trawl through hundreds of pages of the book he assigned to come up with something new. It's not like he was short on material.

Comments Ahoy

Since Crescat Sententia doesn't have comments, and my entry here may generate a few, I officially open up this entry for comments on my Crescat topics. Remember to play nice, folks.

June 09, 2004


Both Ambimb and Heidi weigh in on the subject of ironing shirts, and since I'm once again gainfully employed and wearing them daily, I figure I'll make my voice known. Even if you hate ironed shirts, read to the end, because it'll be useful to you.

First, unlike my two friends, I actually enjoy ironed shirts, and rather enjoy ironing. There's something meditative about the process of gradually straightening out a shirt, particularly if it's just out of the drier and not that wrinkled anyway. In any case, I do my ironing in front of the TV, so it provides me with an excuse to chill my brain out without feeling guilty that I'm not studying, cleaning, writing letters, etc.

I'm quite fond of French cuffs, but French cuffs on an unironed shirt look silly. More to the point, pressed shirts provide a signalling device: while not all careful, thoughful people who pay attention to details will have pressed shirts, most people who consistently take good care of their business appearance will be the kind who pay attention to details. (At least, this is a bit of common folk wisdom, though I always heard it more with respect to shoes than shirts: if you want to spot a careful person, check the shine on the shoes.)

Anyway, for those like Ambimb--and to a lesser extent Heidi, though my experience with women's clothes is slight and thus should be approached with caution--here are some ways to cut down on your ironing time. These are pretty basic, but some people don't know them, so I hope they're useful.

a) Take your shirts directly out of the drier, preferably in the last minute of the cycle--don't let them sit after the drier's stopped. This will prevent a lot of small and annoying creases.

b) If you can stand using Bounce, or some similar drier-based fabric softener, it prevents a lot of creases.

c) Some shirt brands now advertise 'wrinkle-free' shirts. This is baloney, but if you follow the care instructions they will come out of the drier significantly less wrinkled, and require less ironing. (No use if you've already bought your shirts, of course.)

d) Three-piece suits cover a multitude of sins and oversights in ironing.

e) Finally, one trick that's useful if you've got a shirt that's only mildly wrinkled, and fairly uncreased. Hang it overnight, and in the morning, take it into the bathroom with you as you're showering. Close the bathroom door and, as the steam collects, many of the wrinkles will fall out, or at least become less noticeable. This works remarkably well in hotels during business travel, when your shirts are likely slightly worse for wear from having been in a hanging bag.

Of course, it's not like I can talk. I'm not doing any ironing for the next two months, due to the relative cheapness of Tokyo dry cleaners coupled with the complete uselessness of shelling out for an iron and ironing board for my two month stay.

A slight digression

As I've been invited, I'm blogging today over at Crescat. I'll return here in the next few days, so stay tuned.

(Not much blogging anyway until I find a good free wireless hotspot.)

June 06, 2004

Sic Transit Gloria Sony

Finally, a post that has something to do with law. At least sort of, and it's a long way in, but bear with me.

I've just gotten back from Akihabara. I forgot how big the electronics district of Tokyo actually is, and much of it has changed. What hasn't is the fact that there are literally hundreds of shops there selling almost exactly the same set of goods.

What shocked me was that one of my co-worker's observations last week was correct: there really wasn't a 'must buy' Sony product. And while I'm hardly the first to notice that Sony's diversification from hardware into media and entertainment has killed its edge with lifestyle products, it really hit home today.

For most observers (I read it first in the Economist) the story goes something like this: Sony used to make really hip gadgets that everyone had to have, and that redefined our lifestyle: portable stereos, boom boxes, and most significantly, the walkman. But then, in order to expand its market share, it started into media, and now the digital rights business (which wants to restrict anything that could copy data) in in conflict with its hardware side.

You can debate it around the edges, but it's a fairly solid story. And there's nothing that makes me more convinced than looking at the Librie (link run through Babelfish for my non-Japanese audience), a product that would do everything I'd dearly want it to, if only Sony would sell its content wing.

As an e-book reader, the Librie has a brilliant e-ink technology. Sure, it won't look half so good two years from now, but trust me, right now it looks as close to paper as you'll get in an electronic format. And unlike Sony's new answer to the I-Pod, it looks like the engineers actually questioned what users wanted and provided it: an interface that's usable whilst standing on the train, a paper-back sized reading area, and about as cunning a dictionary lookup function as you can get without a touchscreen.

I'm tempted to buy it. It would do what I want: provide an easy and portable way to take Japanese books with me, together with a dictionary feature that would cut down the time it takes to read them. For under $400, I shouldn't have had any second thoughts at all.

Oh yes, except for Sony's content gurus.

You see, Sony is committed to its OpenMG solution for digital rights management. I've been reading about it today at a number of Japanese websites, and it appears that the same strategy underlies their music, data, and video solutions. Despite its name, OpenMG seems to be 'open' in the same way that Microsoft is 'dedicated to open source solutions.' After a good half-hour of trying, I can't find software that will let me publish a document into BBeB (Sony's E-book format) or add a custom dictionary to the machine.

There's no technical reason this isn't feasible. It's simply that Sony owns a lot of content, and book publishers have been loathe to make content available in a format that's easily copyable. On the one hand, I can see there point: unlike music or videos, books are relatively bandwidth-light, and once digital, it would be easy to distribute them on the sly.

On the other hand, the device's usefulness to me is correspondingly reduced: imagine how nifty it would be if I could shift PDFs from my computer to my Librie. Particularly with difficult-to-read documents, this kind of tool would be a real charmer. And just imagine the boost that Sony would get if its document format became ubiquitous: people might be willing to exchange documents between, say, lawyer and client via memory-sticks. (As it is, they're basically a Sony technology.) Actually, you don't have to imagine the boost: just think how much mileage Adobe gets out of Acrobat.

More than that, I have to worry about what happens if this experiment of Sony's fails. At the moment, I'm limited to the Ebooks I can buy at Timebook Town. If for some reason--say the e-book equivalent of MP3--this format doesn't go over very well, I've got a $400 lemon.

It's still tempting. At the end of the day, it's the kind of tech I've wanted to have for ages. But if any of my readers know anyone at Sony, please, please, please tell them to divest their content business. It's just a distraction.

As for the promised legal topic: I've said for quite a while now that the way in which we handle copyright needs to be changed. At the moment, a number of artists and authors get very, very rich, and many stay in penury, but who really profits from the system are distributors: record labels, publishers, those who make sure that the limited shelf space we have for records and movies, the limited paper we have to print books, is used for more or less good stuff. As we move into a digital world, though, these roles become disintermediated. In an era in which the internet makes direct publishing a possibility, and every form of information reduces more or less seemlessly to digital data, the gatekeepers are no longer needed.

I don't know what such a system would look like, yet. Maybe writing would change such that editors would work for freelance, and authors would pay them to make something marketable. I don't know. What I do know is that the system as it stands is keeping new technologies from developing, technologies that make our lives fuller, better, and easier. When copyright law is no longer fulfilling that purpose, it's time to change.

June 05, 2004

Rest In Peace: Ronald Reagan

I just got the email from CNN: Reagan dies at 93.

Product Lust

As mentioned in both entries below, today I'm going to Akihabara, Tokyo's electronics district. This is the place that hardware geeks go when they die, at least if they'd been good hardware geeks. (My guess is that bad ones go to France and have their souls sold to Groupe Bull. Or maybe get reborn Amish.)

I'm going with a purpose. Or at least, I'm telling myself that, because I've just been paid my entire stipend for my time here--quite a lot of money for me--and if I don't keep myself to a purpose, I'm going to break my bank in the first weekend. And given that this weekend Sony launched its new products, and that my officemate is deeply determined to encourage me to buy stuff, it's quite a risk.

So, here's the goal. At the moment, I'm trying to read a Japanese novel, but doing it with a conventional dictionary is slow going. What I'd like to do is read an e-book, but incorporate some kind of automatic lookup so that if there's a word I don't know, I'll be able to search for it in just a few clicks. Being able to read it on the subway--i.e. not on my notebook--would be a plus.

The inner consultant--the guy who wants to use what he's already got to get the biggest bang for his buck--wants to get someone to chip his Dell Axim PDA with the Japanese version of Pocket PC 2003, and then buy a dictionary program for MS Reader. But there are such other cool options.

For instance, Sony has just released the Vaio U, the world's smallest Windows XP machine. It's not a Pocket PC, it's a 'real' computer, and the specs are pretty impressive: 1GHz processor, 512 MB RAM, etc. Plus a touch screen, which is massively useful for Japanese-to-English work.

I saw one in Ginza on Friday, and it was mouth-wateringly good. Besides coming with everything you need to hook it up as a desktop--docking station, power supply, etc--the screen resolution is good, the handwriting recognition solid (for a Microsoft machine), and most importantly, it is a real PC. I suppose you could install an English version of Windows, or even Linux if you could get the drivers to work.

The downside is simply price: even though for the features $1800 is cheap, I'm just not ready to spend that at the moment. Especially since my inner consultant reminds me that it doesn't come with the dictionary I need.

But Sony has released another option, the Librie. This e-book reader uses Sony's new E-ink screen technology, which is bloody gorgeous. I won't bother to explain it here--and unless you can read Japanese, the description on the site probably won't help you--but suffice it to say that it looks much closer to paper than anything I've seen.

Additionally, it has a number of dictionaries, expandable through a memory stick, which are accessible within the book while you're reading. This is incredibly useful for reading novels.

The downside? First of all, it's pretty slow--it would benefit from a touchscreen, which is what I expect the next model will have. Secondly, Sony uses a proprietary e-book format. This is simply a pain in the ass: first, I'm not sure if I can write files to it, a feature that would be extremely useful. Secondly, proprietary formats have a tendency to die swift deaths, which means that I may be extremely limited in my choice of readable books, and might end up with a lemon fairly soon. But at $400, it's tempting.

As it is, I'll probably jury-rig something myself, either with my own PDA or a Japanese one. But these options, particularly the VAIO U, are oh, so tempting.

Ikebukuro Nights

There's a great deal I want to say, and yet I've had a hard time putting things into words recently. Part of this stems from the fact that when you're in another country, and communication becomes difficult at the best of times, the last thing you really want to do is try to reach out, one more time, and try to connect with people. Instead, you just want to go to bed.

But tonight's been very strange. I'm not sure yet if my jetlag is getting some visceral revenge, or if the poet I keep trapped inside me has rabid indigestion. Nonetheless, I spent the night awake and wandering Ikebukuro.

I was supposed to go to Akihabara today--more about this above--to purchase some electronics. Instead, I sat in and read The Club Dumas, which my girlfriend had gifted to me before I left. (Those who've read the book--or seen The Ninth Gate--will understand why she felt it appropriate.) Between that and some dozing, the day passed to sundown.

Since then, I've been walking my neighborhood. I normally do this when I'm going to be living somewhere any amount of time. I go out and just start wandering about aimlessly, with about a hundred dollars in my pocket and no particular agenda. I want to learn what's where and who's who, and sort of make the place my own. So here's what I've found.

Ikebukuro isn't Shibuya, with its nightlife, fashion stores, and style, nor Ginza, which I've always felt was much the same thing with a higher price tag and better branding. It's not Roppongi-esque in its youth, nor Akihabara-techy. It's just sort of...there.

That's not to say that it's unexciting. It's just that if Ikebukoro has a theme, instead of being a mish-mash of Tokyo all stuck in one place, I don't know what it is. If I were to post pictures, you'd see the same tall buildings with the same brand names--MacDonalds, Bikku Kamera, Tobu--that you'd expect to see elsewhere, although thickly packed on densely-built buildings. There's ramen-ya, a good tonkatsu place right across from my apartment, and enough places to sing while getting drunk to accommodate the entire sixth fleet, none of whom come here on an evening. Just tonight I've been in "Who's Food?", a restaurant specializing in bit of cooking from across the globe; a cafe that desperately wanted to be French open at 3 AM; a billiard parlour; a reflexology clinic; and finally, this web cafe. I don't think any of them close before 5AM.

Indeed, Ikebukuro is relatively gaijin-scarce. When I walked through Ginza the other night, I ran into six or seven; walking through Shibuya, another half dozen. But apart from the owner of a 'British' pub--the owner might be a Brit, though his accent and skin tone make it impossible to tell--I can only recall seeing two foreigners walking around. (Not counting two hostesses emerging from one of the clubs.)

This gets more-so as the night wears on. One thing I forgot about Tokyo--it's got one heck of a nightlife. And that's not to say pubs and bars and clubs and such, though there are those, but just life at night. Combine subways that shut down shortly after midnight with ramen bars that stay open until 5AM and streets that are actually safe to walk in the early hours, and you've got the recipe for a real people-watcher's paradise.

So that's what I did. From about 12AM until 4:30 or so, I sat in the park outside Ikebukoro station, on the concrete under a streetlight, and split my time between reading about Lucas Corso's adventures in summoning Lucifer and watching my neighbors lives go by.

By about 1:30 AM, most of the salarymen out for a party have gone home, although there's still a few wandering about. The later it is, the more drunk they are, but they tend to take taxis when it's this late. Either that, or they're retiring to hotel rooms (or internet cafes). There's still a few streetwalkers about, and they'll hassle the salarymen every so often.

(The interesting thing about the streetwalkers is that they're not dressed that differently from any of the other women hanging about, and don't seem to have any noticeable 'tells' in their clothing: it's not like they're all wearing stockings or something. Normally they stand on a corner and ask passing men if they'd like a 'massage,' and are almost always near a young man dressed as if he were a concierge at a just-above-downmarket hotel.

I've not figured this one out yet: basically, the men tend the 'fuzoku' (sort-of-prostitution) joints in the area, enticing men inside. These are dotted around liberally, but not strictly districted: there's one two doors down from the British Pub, for instance. But whether the women are their employees, or whether the whole thing is one big ad hoc freelance setup is beyond me. Someone told me that the guys on the street scout for men to go into the clubs and women to work in them at the same time, a kind of an odd 'just in time inventory' system, but he could have been having a laugh.

As a foreigner, the women on the streetcorners will ask forthrightly for business; the men won't look you in the eye. And there's signs on some of the doors saying 'Japanese Only.' It's all noisome, but fairly polite, and dies out about 2:30 AM, at least on a Saturday. As I mentioned, though, the interesting thing is that it's difficult, though not impossible, to distinguish between some of the women 'standing on streetcorners' and others who are just...well, standing on the streetcorner.)

Anyway, that's all on the other side of the street from the park. The park itself has a lot of love, but of the legitimate kind. At least three dozen couples spent some of their time between one and three AM sitting around the same concrete area I was. Most were young, probably still living with their parents and out for a night on the town in order to have some time alone. Some were high schoolers in school uniform, even though it was Saturday. I dimly recall something about school on Saturdays when I was here last, so maybe that's the explanation. Otherwise, I don't know. But in any event, the whole setup was very cute, particularly the two couples who were in a band.

They'd sat down under the streetlight next to me, and two boys and two girls. One pair sat with their arms wrapped around each other, and the other two sat on either side of the couple, the whole thing a crescent-shaped boy-girl-boy-girl. Every so often, the 'single' girl would start singing, in a voice that was pretty and earnest. Hell, it might even have been good, but I listen to country music, so you probably don't want to take my opinion.

When she sang, one of her friends would tap time with his shoe. I think they were writing out lyrics, because they'd stop at odd places, discuss, and go on. Frankly, I could make out only a little of what they were on about: music in a foreign language is difficult anyway, and I do not understand this lingo the youngsters are using these days.

The best bit, though, was what seemed to be some attempt at rap. The pretty-voiced girl started doing some staccato squacking while alternately thrusting her face forward, then her hips, then her face again. The effect was awkward and avian, and the group divided over what to do with it. The couple just broke down laughing. The 'single' guy went with it for a while--I think he was trying to score points--and then finally started cracking up, which led the singer into laughter. For the sake of their act, I hope that one is shelved.

Anyway, they--and most of the park--cleared out about 3AM. Japan's pretty safe at night, but not so much that I'd like to be one of the few people in the park at that time, so I picked up my book and walked around a bit. There's a reflexology--at least, I think that's the word--studio two blocks away, complete with a big wooden sign showing the parts of the foot and a hint of good decor. Since I'd wandered by before, and I'd never tried this style of massage, I figured I'd give it a whirl.

Suffice it to say, if you're one of my readers who likes the massage places in New York, you're really missing out. The prices are about the same at this place as a nice spa in New York, but the decor is nicer, the people were incredibly polite, and to top it all, they stay open until 5AM, for those whose feet hurt into the wee hours, I guess.

After that, there's nothing like a good shot of caffiene, so I ventured over to a coffee shop. I'll write more about that some other time--it wasn't a very good example of the genre. But by the time I left, the sky was already getting light. If I wanted to write, I figured I'd better head out.

By this time, the roadworkers--another group who I'd been watching from the park--had stopped for the night. Two groups had been working while I'd been reading my novel, one putting up a new marquee for a restaurant, and the other laying some kind of cable. All of them wore blue overalls, some with handkerchiefs tied about their heads and most in a hardhat when they were actually lifting or placing something. But when I returned from the cafe, they were sitting in a circle on the abandoned street, both crews sharing a thermos of tea, joking in a quiet voice, happy that their 'day' was done.

They were the last people I passed on my way to this web-cafe. The sun is rising, and today I'll make the trip to Akihabara that I should have made yesterday. But before I started on my day's journey, I wanted to record what I'd seen tonight. It's the advantage of taking these walks--I feel a bit more 'at home' now.

Catching Up

Dear Readers:

I'm sorry you've not heard from me in so long. I'm afraid that during my sojourn here, I may be less and less available to you.

On the one hand, I really don't want to blog from work. There's something about that which seems unprofessional, although a co-worker and I came to the opinion that it wouldn't be a problem if I got to the office early--an 8AM start, say--and blogged until work begins. Those of you who know how I function in the morning will thank me for not giving you my morning prose.

On the other hand, that leaves me with where I am now: a web-cafe in Ikebukuro, the district of Tokyo in which I am living. As one friend here said, "I think Shinjuku or Ginza are what the Japanese would like Tokyo to be, and Ikebukuro is what it is." I'll assess that statement a bit more later, but for now, let me describe me current surroundings.

I'm in SPACE CREATE SELF-ENTERTAINMENT CENTER (if one translates the name a little over-literally), one of a number of 'internet manga' cafe that dot the area. It's about 5AM, and I can see the sun starting to rise outside. (More on why I'm up so early later.) Twenty-four hours a day, seven days a week, you can pay $4.00/hour to sit in any of a number of booths: some are small cubicles (like the one I'm in presently) and some are fully-enclosed, with seats that lean back. But fully half of each floor is given over to shelves full of manga, DVDs, books, weekly magazines and other entertainment items. So if you don't want to use the internet connection you're paying for, it's a relatively expensive library of pop culture.

All of which means that because Tokyo's trains quit shortly after midnight, and a taxi-ride can cost you several hours of surf time, the internet-manga cafe have become a cheap place to sleep overnight whilst you wait for the subway to hum back to life. As I'm writing this, I'm surrounded by an entire symphony of snoring, wheezing, stretching, and other sounds of nighttime. Indeed, although an alarm-clock just went off a few booths down (and the bastard seems to keep hitting snooze, because that's the third time in half an hour), my cubicle is the only one from which any actual typing is coming.

More than that: I just got a nasty stare from a hungover, 40ish salaryman who was snoozing off Saturday's party. Apparently I didn't get the memo that the keyboard here is just for show.

Anyway, the entries above--which you'll probably read before this--are mostly about the events of the last few days. As I said, writing here will be intermittent, if only because I'm trying not to spend all my summer in a web cafe. But I'll try to give you the highlights.

No, no, no, there's no such thing as an 'activist' judge

Read the Clerk on Judge Gertner. I'd pay good money to see a debate between him and Chris on this one. Whatever one may think about her being right on the result, read all the way to the end: the Clerk seems to have her pinned to the mat with the law on this one:

However, it appears that Judge Gertner simply ignored Massachusetts law in this case. On May 18, 2004, some ten days before Judge Gertner issued her opinion, the Supreme Judicial Court of Massachusetts found that, under the state's law, a false accusation of homosexuality is actionable as defamation. Callahan v. First Congregational Church of Haverhill, 808 N.E.2d 301, 304, 314 n.19 (Mass. 2004). The fact that the Supreme Judicial Court of Massachusetts references cases that predate Lawrence and Goodridge in support of this contention demonstrates that Judge's Gertner's conviction that those cases alter the defamation calculus is not shared by the state's high court. See id. at 314 & n.19 (citing Gray v. Press Communications, LLC, 775 A.2d 678, 683-84 (N.J. 2001), which collects other cases). It could be that Judge Gertner just failed to note the recent Massachusetts decision, of course, but her opinion gives no indication that she ever looked. On this specific topic she notes only cases from "outside this jurisdiction" without ever stating that none existed from within and then discards them on the basis of Lawrence and Goodridge. Morever, the judge's specific language simply indicates that her own policy preferences are what is at work rather than her understanding of Massacusetts's law (e.g., "I reject the offensive implication of plaintiffs' argument . . . .").

June 01, 2004

Clueless in Tokyo

There's something about Tokyo that can reduce the most confident--heck, even the most arrogant--visitor to a shaking pile of uncertain jelly. Ever since I arrived yesterday, I've been having the strangest cognitive dissonance. On the one hand, this isn't anything new for me: I've lived in Japan before, and while my language skills have declined somewhat, I can still make my way around town, and generally make myself known. But all the small details that I used to have mastered are gone.

For instance, take the art of the introduction. It took me a very long time during my first visit to get the whole Japanese introduction system down pat: who bows, how low, what you say, and most importantly, when you stop bowing, since I have a tendency to just keep going. Over the last few days I've probably been through thirty introductions, and I'm back to the gawky-kid stage. The problem is, I can almost be the gawky kid right now, and I've stumbled no few of them.

On the other hand, I spent the morning away from the office (most of which I can't really talk about), waiting for my luggage to arrive from the airport delivery service, and ran into a pleasant surprise. Although I'm sure the Clerk will disagree in his normal curmudgeonly fashion, the lower tendency for Japanese to sue means that the coffee that I purchased at McDonalds this morning was the proper temperature: hot. And while it might seem strange to have eaten my first breakfast in a foreign land in a McDonalds, let me remind you of two major differences between McDonalds in Tokyo and New York: the former are both clean and capable of serving food hot.

Anyway, I've settled into an apartment in Ikebukuro, and if I can find some free wireless access points and have time over the weekend, I'll be putting up a photoblog, which with any luck will fill with my pictures of my summer here. In the meantime, I'll have to go: my time at this internet cafe is almost...

Giving The Devil His Due

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Political incivility (25)
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There is being charitable. Then there is simply being dishonest. (2)
arbitraryaardvark wrote: the nyt target market is elderly li... [more]

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Hitchens on Moore on 9/11 (13)
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The Honorable Judge Calabresi (7)
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Oh, and speaking of Rising 1Ls (5)
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Y'know, If I Weren't Already Involved (6)
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The Three Years of Hell Pledge of Quality (1)
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The Uplifting Company of Crows (0)
Reagan's Heretofore Unknown Influence on the Youth of Ikebukuro (2)
kat wrote: check out www.engrish.com. Some of ... [more]

Self-Censorship (2)
name wrote: well put. i'm the chick who gave he... [more]

One more (6)
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O'Rourke! (1)
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What To Do In Your Last Summer Before Law School? (16)
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A slight digression (0)
Sic Transit Gloria Sony (4)
Dave wrote: Sony's got a long history of shooti... [more]

Rest In Peace: Ronald Reagan (0)
Product Lust (0)
Ikebukuro Nights (0)
Catching Up (0)
No, no, no, there's no such thing as an 'activist' judge (1)
Matt wrote: I think that if you go back and rer... [more]

Clueless in Tokyo (2)
Aaron Miller wrote: The NY Times Magazine had an articl... [more]

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

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

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The Columbia Continuum
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De Novo
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Liberal Federalism?
Good News, No Foolin'

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

Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
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Stay of Execution
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Mid Thirties

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Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
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Borders as Genocide In discussions of climate chan...

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

Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
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The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?

Letters of Marque
And there we are

Signing Off

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

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

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

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

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

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

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

Distractions for stressed law students

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

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