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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...
[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.
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.
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.
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.
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.
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.
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.
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.
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
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.)
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).
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.
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.
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.
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?"
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.
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.
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.
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.
Yours,
A. R.
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.)
...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.
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.
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.
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.
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.
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.)
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.
Things you ought to know:
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.
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.
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:
TAXES ARE EGREGIOUSLY HIGH!
HOWEVER YOU LOOK AT IT, TAXES SUCK.
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).
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.
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.
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.
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...
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."
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.
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.
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.
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 t