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January 31, 2005

Bluebook Citation Challenge

I'm not sure I'm taking this Note quite as seriously as I should be anymore. I've just run across two citation problems--things I don't know how to Bluebook for the life of me. And because I find it amusing, I'm going to share.

Challenge to law students: figure out how to Bluebook the following:

1) This blog entry on Begging to Differ.

2) This Wikipedia entry on Godwin's Law.

Oddly, if published, this Note may be only the sixth reference to Godwin's Law in Lexis-Nexis's database of law review articles. Who said that legal discussion was disagreeable?

January 30, 2005

And They Go To The Polls

So heavily have I been involved in the Note that I've not had a chance to quickly jot down my response to the most important news of the day: Iraq held its elections. Most of the commentary below is for my benefit: I'd like not to lose track of my thoughts on this. It's more like Unlearned Hand's sentiments (and PG collects some good pictures here), rather than anything thought through. If that's what you're looking for, Instapundit's been talking about this all day.

An election surely isn't a panacea. It's not going to stop violence in its tracks, and it's not going to mean the insurgency rolls up and goes home. But it does start the process of reform in a real and tangible way, by giving the election winners--of any party or ethnic group--a reason to stay in power (and any majority a reason to keep them there). After WWII, SCAP's policy in Japan was to institute land reforms, break up family ownership of the economy, and break down old class structures precisely in order to create new interest groups with a share in the new regime. This is one more step towards a similar solution.

I wouldn't want to say with certainty that this democratization process will work: the war thus far has proven difficult on the crystal-ball gazers on all sides. But I also wonder about those who are counseling doom. Juan Cole is "appalled" at the "cheerleading" nature of the news coverage, and his blog has been a great way of keeping track of bad news. Prof. Bainbridge and Instapundit have been joining in a near-obsessive conservative linkfest to prophets of doom. It's not been tough to find people who, when faced with a spot of bright sunshine on the horizon, are quick to point out the rainclouds. My one wonder there is: "What if this works?"

Whenever I would point out parallels between the Japanese and Iraqi experience--by no means identical, but certainly with some justice--many friends would go through an entire litany of why things are different. But really, they're not so different: we've just forgotten that in 1945, it looked like we might fail. Disagreements between Acheson and MacArthur, for instance, are long forgotten, and those who said that Japan could never be "democratized" are not taught, not known, not learned of. Now it's commonplace to say that Japan was fertile soil in which democracy could take root. (And indeed, in many senses it was.) But we forget that many in the "reality-based" community did not see it as such at the time.

The election is over now: there are four more years in which Iraq has a chance to improve. In the meantime, voices saying that the election cannot have legitimacy will be frozen in place forever, through the magic of the Google cache if nothing else. What will Dean, or Kerry, or those who claimed this was 'the wrong war, in the wrong place, at the wrong time' say in 2008 if the country is relatively peaceful, experiencing economic growth, and settling in nicely to democracy?

History remembers MacArthur. Until now, the "reality-based community" tended to be forgotten whenever reality changed around them. But digital memory persists, and on that basis alone I'm amazed at these steadfast predictions of failure.

January 29, 2005

Hunkered Down

Afraid I'm in the midst of a very long date with Miss Note, which is why you've not seen me for a few days. It's the blind date from hell, by the way, and there are so many things I'd rather be doing than making googly eyes at her for hours on end. But nothing that I've been wanting to say recently could be said briefly. Perhaps after this interminable evening is over, I've tipped the waiter nicely, and kissed this not-so-pretty charm school reject goodnight, holding the door ever so gentlemanly and thinking up convenient excuses in case she invites me up for coffee[1], you'll be treated to a veritable orgy of real writing here.

One thing I'm learning: I really hate legal academic writing. I'm actually quite fond of the memorandum style I used in my job over the summer: succinct, to the point, suited to purpose. That I can do. But law reviews and law review style are addicted to footnotes in a manner that is only slightly more maddening to read than to write. Anyone up for writing a virus that disables the footnote function in MS Word? (That is to say, disables it more thoroughly than MS's buggy code already does?)

[1]: Most Note writers will probably pick up on the meaning of this extended metaphor. Otherwise... don't worry about it. Note writing does horrible things to your mind, including making you wish for excuses to write mythically, metaphorically, or at least in such a manner that you don't need goddamn footnotes.

(Ed.--erm... you realize what you're writing now, right?) (Author: D'oh!)

January 27, 2005

The Lack of Refractive Qualities of Dorm Glass, or A Warning to the Afternoon Post-Coital Set

So I'm working on a relatively high floor of a university building today (location omitted to protect the guilty), chatting with a friend about a matter of great and principled import. I had listened to his point and was just managing to get passionate about a rebuttal--really managing some eloquence, or perhaps just some heated grumpiness--when I notice that his eyes are bigger than pie-plates, and he's not really paying attention anymore.

"Erm... what did I say?"

"Oh," he replies, "Nothing. I was just wondering why there's a naked woman in that window over there."

In surprise, I turned around, and sure enough in the window across the street there's a young lady's bare back on display. Somewhat in disbelief, I muttered, "No, it's just a skin-tone colored shirt and a trick of the light." But then she turned around, and... well, let us merely say that a room full of law students lost all reasonable doubt about the nature of the situation.

Neither she nor her apparent partner--who showed up near the window a minute later--evinced the slightest sign of realizing that they had become part of the scenery. And after a bit, they faded back into the room and out of sight.

Anyway, as a public service announcement for those living near Columbia, or even those who merely live in big, crowded cities: if you're wandering around in the buff, shut your curtains. After all, university campuses are filled with individuals who have homework, and virtually anything is a better distraction than doing that. There will never be a shortage of people looking out of windows, and more than likely they'll end up looking into yours.

January 26, 2005

Such a long day...

The day has been exhaustion upon exhaustion. Wednesdays are a sign of exactly how poor I am at scheduling. Every single one of my classes meets on Wednesday. Add to that a Law Review meeting, the need to plan out my TA session[1], and the ever-present pressure of my Note, and I think I understand why Wednesday evenings are so demotivating. My main goal tonight is to get to bed somewhat early.

One thing I loathe about this whole Note deadline: the guilt. I got back exhausted tonight, and something defiant said, "Screw it. I'm tired, I can't string a sentence together to save my life." So I picked up my copy of Kafka on the Shore, and for the next hour I revelled in the tale of a strange runaway called Kafka and Nakata, the crazy old man who can talk to cats.

Typical of Murakami, Kafka swims in an atmosphere of longing wonder. Similar in structure to Hard-boiled Wonderland and the End of the World, its chapters have alternating narrators, switching between first and third person, and tell stories that seem only distantly related. But unlike Hard-boiled, Kafka's stories don't differ as much in style or mood. Both characters are undergoing a similar strangeness, and both seem fractured in ways that feel consistent: you can see how the two stories will "fit" much more easily.

Reading Murakami makes me want to write myself. Though I worry a bit about if I'll have time--the young associate is supposed to have time for nothing but work--there's something in my that would like to use my early law experience as fuel for a novel. Sure, what I know of practice thus far isn't extensive enough to confirm my impressions, but it seems to have some very Murakami qualities to it: an environment with a rigid structure (upon which a more surreal or mythical character can be imposed); a number of characters of varying degrees of normality, helpfulness, and isolation; and mundane qualities that can be made magic. For some reason my heart says that practice is more likely to be a catalyst for whatever creative urges I have than law school is.

But whatever. None of this rids me of the guilt: two hours lost to the novel. I suppose I should sleep, so that tomorrow I may return to the Note.

[1]: At some point, I really ought to describe my classes/projects for the term on this blog. One more item for the to-do list, eh?

January 25, 2005

Because it's a virus that's going around

Certainly if one were to ask what tort most bloggers are, there's only one right answer?





take the WHAT INTENTIONAL TORT ARE YOU test.


and go to mewing.net. because law school made laura do this.

Perhaps to no one's surprise, it's the same result as Heidi. I'd never have guessed that Will would turn out this way. I guess I'll watch my Manhattans when he's around.

Minor Annoyance

I know it's a little thing, but I really wish that when Financial Aid sent out an announcement of a scholarship opportunity, they'd include more than just the words "Scholarship Opportunity" in the subject line. Since November 23rd, I've received nine such mailings, none of which have been of any use to me.

None of them have been useful because I am not: (1) domiciled in Bronx County; (2) a native of New York City; (3) of Polish descent; (4) Jewish and living in Queens County; (5) (second announcement of 2); (6) a resident of Passaic or Bergen County, New Jersey; (7) of Italian heritage; (8) a (presumably racial) minority law student; or (9) a woman.

Two of these I recieved today while I was working on my Note. Normally incoming email is a welcome distraction, and perhaps it's just the foul mood one gets while completing an unwelcome task, but I felt quite a letdown upon opening them. After all, the subject line basically says "APPLY FOR MONEY" while the body text says "NOT FOR YOU!"

For the most part, these seem to be private groups spending their own money, so I have no gripe against the concept of the scholarships themselves. Still, even if it's just grumpiness on my part, it would be rather nice if they'd put the relevant race/gender/location restriction in the subject line, so I could just delete the message and go on.

UPDATE: I've discussed this with a friend who pointed out that, despite having very little demographic similarity with myself, she's not eligible for any of the above either. Therefore, I think if I become wealthy enough to endow a scholarship in the future, I shall create "None of the Above" funds, available to any student unable to apply to any other scholarship offered by a participating university that year. That way everyone has at least one envelope to open.

I'm Moonlighting as a Law Student

Sometimes I wonder the degree to which I'm actually a law student, and not a random PC tech support guy. Some of today's note time was again spent getting some critical files off a broken computer.

I think I'm going to get one of these. The most common task I'm asked to accomplish is the recovery of files that someone didn't back up. A hard drive enclosure like this would allow me to pull the hard drive, plug it into my machine (through USB) and burn DVDs of anything that needed recovery. This done, I could just let the user reinstall Windows through a recovery disk.

Of course with my luck, after spending $45.00 on the enclosure, CLS would experience a sudden wave of hardware/software stability and I'd never have to use it. Which is, of course, why I don't just buy the thing.

Very Long Rebuild Times

My apologies to any readers who are trying to leave comments. For some reason this blog is experiencing some very long rebuild times. It probably has to do with the RSS feeds, and I'm going to address that today.

In the meantime, please hang in there: comments are being stored, but my not show up immediately.

Writing Contest Announcement

The Pacific Legal Foundation sent me an email last week asking me to hand on this contest announcement to their readers. I'm a bit late in getting the word out, but in case you're interested:

Pacific Legal Foundation is awarding $9,500 in its Sixth Annual Program for Judicial Awareness Writing Competition. This year's competition includes three essay questions, regarding the applicability of the Supreme Court's "rough proportionality" takings standard; whether the GDF Realty Investments v. Norton decision can be reconciled with the Court's modern Commerce Clause jurisprudence; and whether the concept of "regulatory givings" is consisten with the purpose and function of the Takings Clause. More information is available at our blog.

(announcement edited slightly for context)

January 24, 2005

Theme of the Week

The Note is almost finished--it's now the home stretch towards the final edit. I really, really need to focus on writing this week, which means I really need to do a lot of blogging. (I know, it sounds contradictory, but I explained it recently. Trust me on this.)

To encourage all sorts of creative thought, I've given this week a theme. For a while now, I've had a number of oddball articles that I've been meaning to put up here, but I've not really gotten around to completing them. But since this week at Three Years of Hell is "Conservative Contrarianism" week, I should have plenty of good reason to put things on paper.

To give you a taste of what I'm talking about: for a while now, there's been a lot of moaning in the blogosphere about how picked upon conservatives are in academia. This week, I'm going to write about what's fun about being a conservative in the Ivy League. There's a lot of fun stuff that no one mentions that often, and it doesn't even involve secret handshakes.

Anyway, that's my theme this week. We'll hope I can sustain it for a whole seven days, but in any even, I hope it sustains me through the Note.

Not quite hotter than hell, but...

It's about seven degrees outside. (That's Farenheit. For my English readers, that translates to "real bloody cold.") But my room is so warm that I have the window open. There is something deeply, deeply wrong with this.

January 21, 2005

Symposium on Sentencing

I would be remiss if I didn't mention that starting today and continuing tomorrow, the Law Review has been holding a symposium on sentencing. The Federalist Society's blog has been doing some liveblogging of the event, including the keynote speech by Judge William H. Pryor, Jr. Between law review work, my note, and a splitting headache, I missed today's events, but thankfully my classmate PG (also of De Novo) covered things.

The Phytoplankton Agenda, or The Very Cunning Plan of the Evil Mr. Plankton

I'm here to straighten out some agenda issues and keep my readers informed on the hidden scoop. You know, the things that get decided in smoke filled rooms. The hidden plans of the secret masters. The dark whispers of those who pull the Illuminati's strings. What I'm about to tell you could get us both killed, so be quiet about it.

You see, James Dobson of Focus on the Family believes that SpongeBob Squarepants is part of the homosexual agenda. Prof. Eugene Volokh replies that Spongebob has a tolerance agenda. Finally, Glenn Reynolds thinks that SpongeBob has an asexual/bisexual agenda. (No one who has seen how SpongeBob dresses is considering a metrosexual agenda.)

They're all wrong.

This is all just a plot to fund The Plankton Agenda, the complete destruction of the Axis Of KrabCake: The Krusty Krab, the Krabby Patty, and all things SpongeBob Squarepants.

I went to great risks to find the actual items of The Plankton Agenda [1], so that you, my special readers, could know what was actually happening:

The Super Secret Plankton Agenda--DO NOT DISTRIBUTE
  1. Build the Orbital Mind Control Lasers: With the help of The Master, Mysterio, and the ghost of Captain Kangaroo, we have built a system of Orbital Mind Control Lasers. (Plankton's Note: We tried to get funding from Halliburton, but they told us that some plans were just too evil for the Military Industrial Complex. I keep telling the other villains that they're wrong about Dick Cheney.)
  2. Corner the Market on SpongeBob goods: Buy as many SpongeBob t-shirts, backpacks, or toys that make good adult desk accessories as we can fit into The Chum Bucket. Invest in manufacturers of SpongeBob junk.
  3. Aim at Credulous "Pro-Family" Leaders: Target James Dobson, SpongeBob, and Carson from Queer Eye with our new Acme Trilateral Gaydar InverterTM[2] attachment for the Orbital Mind Control Lasers. This will make Dobson mistake a cartoon character with no genitalia nor evidence of sexual desire whatsoever with a real, live gay person. (Carson looks sort of like SpongeBob if you squint really hard.)
  4. Watch as SpongeBob blooms from a marginal item of interest to those over the age of twelve into a full-blown gay cultural icon. (Lex Luthor, retained on a consultancy contract, has predicted a 84% rise in sales to the adult demographic, with marginal effect on pre-teen or toddler sales.) Rake in the profit from our investments.
  5. Laugh maniacally.

The Underpants Gnomes have pointed out that trial runs (see documentation on Operation Tinky Winky) proved wildly successful, with purple backpacks practically running off the shelves at Toys R' Us in every metropolitan area. We expect similar returns from this project.

Addendum: At our last meeting, Mojo Jojo recommended using the Trilateral Laser on Rush Limbaugh to convince him that PBS's Pink Boohbah bears a striking similarity to The Clitoris in South Park's Bigger, Longer, and Uncut. However, Professor Moriarty noted that there actually is marked resemblance between the two, and proposed further research into what other dark forces might be trying to discredit PBS. No one likes competition.

So there you have it. You're "in the know" now. Personally, I've never been very fond of SpongeBob, so I think I'll go buy some little kiddies a toy or two. Show your support for the Plankton Conspiracy!

[1]: The Plankton Agenda, A Jerry Bruckheimer Film, coming soon to theatres near you.

[2]: U.S. Patent Pending.

January 20, 2005

More Political Haruspicy, or Not Every Chicken Little Is A Cassandra

A plea for a little help from my readers:

I had figured that after the election, most of the nonsense that was going on about the "draft to come" would calm down, and fair enough, it did. Howard Dean isn't mentioning it as a centerpoint of his campaign for DNC chair. It's not turned up on Democratic talking points in recent weeks. Indeed, now that the election's over, it's not much in the news.

There's a reason for this: it was always a pretty flimsy prediction. First it was premised a bill put forward by Charles Rangel. (This didn't bother some law professors.) Then it was premised on difficulties in recruiting for the National Guard. [1]. Now, it's premised on the idea that we're going to war with Iran.

I've referred to this kind of thing before as "political haruspicy." I'm wary of doing it myself, although I've made a prediction or two. (Most notably, that same-sex marriage or civil unions will be legal in all 50 states by 2008, although now I'm leaning towards 2010.) On the internet, it's especially dangerous, because your predictions can be so easily referenced.

But predictions about the draft seem particularly pernicious to me, because they started with a credulous acceptance of "alert" emails which left out salient information (such as Charlie Rangel), and have proceeded from distortion to distortion. So this weekend, I'll be launching a page: the Cassandras of the Draft. It'll be a permanent link from my homepage, and will allow my readers to add links and quotations from any of the Augurs of Impending Doom. I'll also include a countdown clock, giving the exact number of days, hours, minutes, and seconds until Bush has not started a draft. Who knows: if a draft actually does start, I'll be making these people look like predictive geniuses. On the other hand, if no draft occurs then no one will be able to disclaim their words.

In any event, I need a good list to get this going. So I'd like to use this entry as an initial clearinghouse while I'm designing the page. If any of my readers know of a pundit, blogger, politician, or other notable who has predicted a Bush reimposition of the draft, please drop a comment and a link below. And if you have a chance, spread the word.

Oh, and one rule: we're talking about a general draft, one actually involving the selective service. Not a "back door draft" involving the use of military contracts, drafting people into AmeriCorps, or whatever else. Let's keep it focused with this general rule: if it doesn't involve selective service cards, it probably doesn't belong here.

[1]: Chris and I recently had a discussion over why overheated rhetoric does one little good for analysis, and this is one reason. Yes, we're having a hard time recruiting for the National Guard. A serious discussion would ask whether we were having trouble recruiting for the non-reserve military, and whether, were we to reverse the troop cuts of the early 1990s, we'd be able to fill the ranks. But it's not particularly surprising to find out that when both reserves and non-reserve ranks are being called up, fewer people wish to volunteer for reserves.

There's a serious criticism of Rumsfeld's policies on troop strength, and a criticism that I have great sympathy with: that whatever the long-term costs, we should increase the size of our standing army (and even raise taxes to pay for it) because calling up reserves on a long-term basis is bad for morale and effectiveness. Pushing this would have been an excellent issue in the last election. Instead, much of the democratic intellectual firepower was focused on scaring Americans with the fantasy of an upcoming draft.

January 19, 2005

My Belly Is A Science Fiction Double Feature

(OK, that's a pretty surreal headline.)

Let's take a break from my normal discussion of law, law school, and politics to discuss something else that's been weighing on my mind. Three forces are creating a perfect storm of discomfort in my life: it is very, very cold outside; law school might be considered the ultimate anti-diet of junk food and sedentary reading; and I am almost pathetically ignorant of the Way of the Gym. All of this is resulting in there being more of me than really is ideal.

When I lived in England, I didn't really worry about this because my lifestyle involved much more walking than I do these days. And my general attitude towards exercise has always been to do more when it looked like I might slip up a waist size: whatever I might lack in motivation or vanity, I rarely look forward to the prospect of paying for new clothing in larger sizes.

Now, however, a combination of age and being stuck to a desk seems to actually be doing me cardiovascular harm. Were it spring or summer, I'd start jogging, but right now every step outside involves an immediate desire to seek warmth. My schedule precludes attending a weekly martial arts class. And so with some reluctance, I'm thinking I should figure out where Columbia hides its gym.

Unfortunately, I have a phobia of gyms. Twice in my life I've joined them, once when I lived in D.C., and last summer in Tokyo. Both times I encountered the same problem: I am wholly ignorant of gym etiquette and formality.

For instance, what does one wear to a gym? I dimly understand that there's an entire industry of spandex and lycra that has to do with arcane subjects like "breathability" and cloth that molds itself to one's body mass. Variously remembered snippets of stand-up comedy suggest to me that those not already body-sculpted are advised to avoid them, and this seems prudent. But for a student gym, are old shorts and a t-shirt too much/too little? Are white socks gym attire, or has something changed since I've been last? What about shoes: black, white, striped, does it really matter?

As someone whose physical vanity can't normally be described as excessive (an exception should be made for suits, which I find more of a hobby than anything else), gyms are intimidating. In most situations I'd put together some outfit that combined my personal convenience with some aesthetic preference, and convince myself that the rest of the world can look elsewhere if they don't like it. (Needless to say, I'm not winning any "best-dressed" awards at Columbia.) But a gym seems to be an exercise in being looked at, and I find such nonchalance impossible there.

This summer wasn't so difficult, perversely because of the Japan factor. Wandering around as a foreigner can sometimes be annoying, but in the gym it's liberating. I wasn't going to buy the $250 worth of gymwear common to most of the other sweaty men in the weight room, but who cares if they stared at my t-shirt and old jogging shorts? I'm five inches taller than the average height, a completely different skin tone, and the only person trying to balance a bilingual dictionary on top of their magazine when using the treadmill. I had no illusions that I'd blend in.

Here it's more difficult. Between stylistic concerns, the normal comparative vanity that's involved in group exercise, and the fact that I really don't know much about how to do gym exercise anyway, I feel in need of some Virgil or Beatrice to guide me through the maze of machines and aerobic exercisers.

I hope most everyone has some area lilke this: a perfectly normal thing that they feel ill-equipped to deal with. It would make me feel vaguely less silly. Nonetheless, it's getting to the point where I have no choice but to solve the problem somehow. To quote the old Rodney Dangerfield line, "I'm so out of shape, when I die they're going to donate my body to science fiction."

Great B-Sides

One minor gripe I have with the CD as a format, and particularly with the rise of I-Tunes, is the lack of B-Sides. I'll admit, I'm not the most musically-inclined legal scholar ever, but I've spent the entire day listening to B-sides of CD-singles.

(Of course, CD's don't really have B-sides, in the sense that you don't flip them over to hear what's on them. But you know what I mean.)

For reasons I've never been entirely clear on, B-sides have a tendency to be a bit more experimental than the singles with which they're packaged. And CD singles for a while would contain bits of music that weren't on the album. Horrible marketing trickery requiring you to buy more stuff if you wanted a complete collection of an artist's ouevre? Sure. But they were fun, so I couldn't complain too much.

After all, Tori Amos released an entire album of B-sides off Under the Pink and I generally think they're some of her finer works. But topping off the day has to be the B-side of Mary Chapin Carpenter's Almost Home. It's a cover of Bruce Springsteen's Dancing in the Dark. You know, the one with the happy, chirpy video that gave Courtney Cox screen time before the rest of the world was her Friend? Well, Carpenter covers it without the E Street Bands deliberate optimism, and the grimy awfulness of the lyrics really shine through.

If you can find it available for download somewhere, get it. It's great.

January 18, 2005

Frustration

I'm going to have to appeal to my readers for help, because I'm tearing my hair out over something that must be an easy fix. As you've probably noticed, Lawdork has moved to a new site. He's running MoveableType, and has a standard RSS implementation. Nonetheless, I can't get his RSS feed to show up in my blogroll.

I've checked, and his his XML validates, so that doesn't seem to be the problem. And the rest of my RSS feeds are functioning fine. His just won't show up.

His RSS file is here. For comparison, my RSS 2.0 file (which works) is here, and my list of feeds is here. If there's anyone with an idea of what's going on, please tell me: I'm officially stumped.

New Stuff

I'm usually jealous of anyone's new toy, and I've been nothing but jealous since Handful of Sand put up a list of all the books he owns. I was wondering how he did it, and he was kind enough to point me along the way.

So now I've got a nifty piece of databasing software that will keep track of my book collection. I've thrown some stuff randomly into the mix, and spent some of today (when I wasn't working on a massive final report for my Clinic) putting together a page listing everything I've had time to enter.

OK, probably not the most noble achievement. For one thing, I have far more... shall we say plebian?... tastes in books than many of my peers. And for another, most of my books are in storage boxes far from here. Still, it was a chance to work with XSLT, which I've not had in a while.

The collection can be accessed from the "BOOKS" link in the topbar, which you'll notice no longer has a dropdown.

January 17, 2005

Cool App of the Day

As some of my classmates, many of my friends, and all of my ex's well know, I'm not the easiest person to wake up in the morning. Much of my professional life has been spent devising a series of clocks or alarms that manage to actually kick the brain into activation, not just rouse the body. Without that, I just turn off an alarm and fall back asleep, waking only after the important class/interview/date has come and gone.

It seems, however, that I'm not alone in this problem, and that a much brighter mind has come up with an innovative solution: the Wake Me Clock.

The WMC is a simple computer-based alarm clock with a very interesting twist: each morning it selects two entries from a dictionary at random, and won't shut off until you've typed those two words into a text box. In other words, by the time you've stopped whatever racket you've set yourself, you're awake.

Just what the doctor ordered. Now it is simply a matter of deciding on a sound file that is annoying enough to get me out of bed, and yet puts me in the right frame of mind for the day. During exam periods, I generally choose Tweak from South Park ("AAAAAH! Too much pressure!), but those aren't coming for another few months. I generally select some cheesy TV quote, but nothing springs to mind right now.

Any suggestions from the gallery? Past wake-up hits have included:

  • Vorlon from Babylon 5: "The avalanche has already started. It is too late for the pebbles to vote."
  • Cartman, South Park: "Bad! That's a bad snake!" (Cartman, by the way, has an incredibly annoying voice, and thus is perfect for waking me up)
  • Joel Cairo (Peter Lorrie), The Maltese Falcon: "You always have a very smooth explanation ready."
  • Monty Python and the Holy Grail: "Now you see the violence inherent in the system!"

Still, I think I need to broaden my horizons. Suggestions gratefully accepted. Suggestions with links to WAV files are even better.

January 16, 2005

This Blog Endorses Dean for DNC Chair

So much for the election being over. Bush hasn't even been inaugurated yet, but the hottest position since the presidency is now up for grabs: the DNC chair. And Howard Dean is in the running.

This blog wholly and completely endorses him. After all, how much fun would the next four years be if the Democrats started doing some serious outreach? Instead, let's put a fellow in charge notable for his bridge-building abilities, the kind of gentle-touch necessary to convince those who might not already be on your side. Who can forget such respectful observations on life in the South as:

I still want to be the candidate for guys with Confederate flags in their pickup trucks.

That one went down well not only in the South, but in the rank-and-file North as well, if I recall correctly. Stereotyping those below the Mason-Dixon line is a brilliant plan for bringing them over to your side. Then, of course, there's the man's idea of fine strategy: tell your voters what to care about:
"We have got to stop having our elections in the South based on race, guns, God and gays - and start having them based on jobs and health insurance and a foreign policy that's consistent with American values."

To which many a Southerner must have responded with something along the lines of, "What's this we bulls---, Mr. Vermont Governor?"

(Actually, Sen. Edwards attitude was pretty much along those lines, though I couldn't find his reponse to the comment itself.)

Or how about his patented charm, his big-tent philosophy meant to appeal to moderates who might, at one point, have voted for Bush, but wouldn't now?

"George Bush is not my neighbor."

(And who can forget the obvious?) Certainly four more years of this is just what's needed.

Oh, don't get me wrong. I have a lot of respect for Dean, for what he accomplished in the election. Besides having re-energized the Democratic base (for which they owe him), he was certainly responsible for the most innovative web campaign of the year. I really hope that Republican strategists are doing their best to absorb every strategic advantage they can from his example.

But Dean isn't the guy who's going to call Moveon.org to account when they go well over the top. He's not going to say, "Hey, look, maybe we ought to banish the word 'fascist' from our vocabulary for a few years." In short, as the Democratic Party spirals into a frenetic hatefest incapable of saying a single nice thing about Bush and convinced of the dark divinity of Karl Rove, he's not the guy who's going to fight the current.

The Republicans managed to marginalize ourselves through the Clinton Years because our message was the stunningly inspiring, "Clinton sucks." Bush won his first term through compassionate conservatism, and it was enough. The term was vapid and meaningless, but it had two advantages: it allowed him to capitalize on Clinton's (wholly unrelated) mistakes, and represented a "not not Clinton" idea. Frankly, it didn't matter what the idea was, the fact that it could be protrayed as something other anti-Clinton bile started repairing our fortunes.

Perhaps Dean will change his stripes, and we'll see a number of "Dean rethinks his strategy" stories. But frankly, it doesn't seem a likely threat, which is why this blog endorses Dean for DNC.

January 15, 2005

New Things to Read

It's been a while since the blogroll updated, and it's time for some introductions:

  • First, a woman who described herself to me as "one of the Grand Old Women of blawgs" in an email, Ruth Edlund writes The Dark Goddess of Replevin Speaks. A Columbia graduate and partner at Wechsler Becker, LLP, she's a reasonable glimpse of the future awaiting some of us. I've added her to the Columbia Continuum, which probably would stretch some rule as to what a "continuum of Columbia students" means, if it weren't for the fact that I'm making the rules and no one else seems to care.
  • The Columbia chapter of the Federalist Society gets a link on the sidebar. (They're a group blog, so they don't go in the Continuum. Ain't arbitrary rules grand?) If the Columbia chapter of the ACS would get sorted with an RSS feed, they'd be added, too.
  • Finally, let me point you towards The Websnark, who's good for a few laughs. His recent review of the new Battlestar Galactica will pull some heartstrings for those of us old enough to remember when Starbuck was male, and his humorous reflection on the irresistable erotic pull of the barista should have you choking on your skim latte.

UPDATE: For some reason, I'm having a hard time getting the Ex Post RSS feed to work. I'll update this as necessary, but with any luck it sorts itself out soon.

January 14, 2005

Working, Fixing Computers...

As a few people may know, I spend some of my time at Columbia as a kind of low-level computer repairman: when someone's computer breaks, I'll do my best to get the data off and fix it. [1] For some reason, there's been a lot of it going around the last three days. I've come across three computers with faults in either the boot sector, the registry or a corrupt file in the C:\Windows directory. It's a fairly easy fix: load up a Windows XP CDROM, use Recovery Console to get to a command prompt, use the magic words "CHKDSK /p" and "CHKDSK /r"[2], and then wait two hours while the hard drive puts itself back together.

But I'm a bit mystified to see three of these at once: it's not a very common fault, at least in my experience. I'd expect to do this once a term, not thrice in three days. Anyone know of a virus going around that causes this kind of damage?

Anyway, that's why you've not heard much from me. My blogging time has been spent on other computers, doing some reading while gradually banishing the Blue Screen of Death.

[1]: Yes, I fix computers for Democrats, too. And I've never yet succumbed to the temptation to put a really big picture of Karl Rove on the desktop, then use the Profile Manager to disable their ability to customize the desktop...

[2]: Please note that this is no advice of any kind, only what I've done to fix things. Whatever you do, PLEASE don't base any attempted fix on what I've written above. Do your own research and find solutions from websites that claim to be competent to handle these things. This is a law student website, and that should tell you something about the quality of the computer advice you're going to get here.

January 12, 2005

Book Lust

Amazon knows what I like. Murakami's latest is released on the 18th.

cover
Kafka on the Shore

by Haruki Murakami

Contrarian News

OK, as every other legal blog has already noted, Booker and Fanfan were released today, and now the federal sentencing guidelines are not so binding as they were. It's important, but I have no wisdom to give you on this, so I'll point you over to the Blakely Blog. Once he's off the plane, I guess.

If you've not been awaiting Booker with bated breath, try this. Via Inter Alia, here's a way to shorten the load time of Adobe Reader. Use at your own risk--I've not figured out which plug-ins are essential to Lexis and Westlaw yet. Nevertheless, Adobe's bloated reader is no longer painful to load.

In Search of Facts

Whether The American Constitution Society seeks "to revitalize and transform the legal debate, to counter the narrow conservative vision of American law that lacks appropriate regard for the ways in which the law affects people's lives" or is in fact the least necessary organization in legal education, the Columbia chapter has had a blog since October, and I've singularly failed to mention it. They use Blogger, but if they had an RSS feed I'd be linking to them.

Today, however, there's a column by "Liz" (full disclosure--I have no idea who this is) that's gotten me a bit confused, and so I'm going to "fisk" it. However, unlike your normal fisking, I'm going to start up front by saying I don't really know enough about genetics to make heads or tails of this. This isn't an argument. The questions asked below aren't rhetorical, they're real, and if any of my readers have some medical/scientific knowledge, please fill me in.

After some introductory text, the article starts as follows:

A little background. Last November, the New England Journal of Medicine published a study about BiDil, the aforementioned drug. BiDil treats heart disease and has been tested in the past, unsuccessfully, in a diverse community. When researchers went back and analyzed the data, they discovered that while the drug was ineffective overall, it was fabulously successful in treating folks that were identified as African American. In fact, when the researchers initiated a study whose only participants self-identified as being African American, they had to stop it prematurely, because the drug was so effective they felt it would be wrong to withhold it from the control group.

In a slight gripe with the CLSCACS Blog, it would have been nice to link to the report. I'm pretty certain it's the report here, though again, this isn't my forte.
The FDA, which falls under the umbrella of the Department of Health and Human Services, is responsible for certifying all prescription drugs as being safe and effective before they are put on the market; there is no real question that everything they do constitutes state action. Thus, if they choose to label something on the basis of race, shouldn’t this action be strictly scrutinized? If so, the approval of BiDil solely for African Americans must advance a compelling government interest by the least restrictive means necessary. No doubt, the treatment of heart failure serves a compelling government interest. Even more so if we look at BiDil’s story through the lens of affirmative action. African Americans suffer from a variety of health problems at disproportionately high rates due to a variety of environmental factors. BiDil’s approval for African Americans may just be one step towards righting past health care wrongs. Still, despite the fact that this drug will help African Americans suffering from heart disease in the short term, allowing the FDA to slap a race-based label on the drug may not be least restrictive means of putting it on the market and is probably not a good thing for the African American community in the long term.

Now, here's where I would have expected to see something saying that a less restrictive means of determining who the drug would help, and who it wouldn't, actually exists. Here's what follows:
For years, scientists, researchers and other academics have been shouting that race is a social construct. In fact, the preliminary sequencing of the human genome told us that regardless of whether or not our physical characteristics (a.k.a., " phenotype" to geneticists) identify us as black, white or Asian, we are pretty much genetically identical to one another.

One would have thought that "pretty much" and "identical" here was begging the question, since there would seem to be a difference due to the experiment. Even the National Human Genome Research Institute source that the ACS quotes approvingly below doesn't say that genetics have no role in disease:
What about health disparities? Are genetic differences between populations likely to have a role in health status, both in the US and around the world? In many instances, the causes of health disparities will have little to do with genetics, but rather derive from differences in culture, diet, socioeconomic status, access to health care, education, environmental exposures, social marginalization, discrimination, stress and other factors. Yet it would be incorrect to say that genetics never has a role in health disparities. This is most obvious in the unequal distribution of disease-associated alleles for certain recessive disorders, such as sickle cell disease or Tay-Sachs disease, but has also been noted recently for certain nonmendelian disorders, such as Crohn disease.

The question of whether genetics will explain a substantial proportion of health disparities for most common diseases is largely unanswered and will be clarified only by further research studies of many populations. Given that the frequency of many genetic variants is not equal in all parts of the world6, however, genetic variations conferring disease susceptibility are expected to be unequally distributed, at least in some cases.


But again, I don't know enough to evaluate that statement. Liz continues:
And yet, here we have a drug company implying that African American heart failure patients are physically (read: genetically) different from white heart failure patients. How can they do this? Were the social construct theorists wrong?

I can't find anything that says a drug company is stating there's a physical or genetic difference between African American and white heart failure patients. I couldn't find any of the application documents on the FDA website, although I did find this: a 2003 report stating that the FDA was now requiring reporting on race and ethnicity in drug trials. But relevant to any evaluation would be: is the drug company implying that the difference stated exists? Or are they claiming that only for this group do they know that a reasonable chance of successful treatment exists? The two would seem to be very different statements. (Again, there's a frustrating lack of linking to sources.)
No. The reality is that BiDil’s efficacy likely has little to do with race as commonly perceived. "African American" is just filling in as a proxy for the genetic markers that code proteins which ultimately lead to the ways in which the human body interacts with the drug. Anyone may have these genetic characteristics.

Again, no support for this is offered. Does anyone have some? (Again, the only source cited by the ACS, Dr. Frances Collins, seems to disagree. See the third paragraph in the document linked above and here.)

Skipping ahead some, we come to this:

Nevertheless, BiDil’s makers and the FDA should not be permitted to shortcut the drug approval process by referring to BiDil’s efficacy within one community. The drug company should be required to find out what exactly is making the drug so effective in the African American community. The FDA should compel BiDil’s makers to research what exactly "race" is serving as a proxy for and approve the drug for all individuals with such characteristics, whatever their ancestry. . . .The last thing we need is the FDA’s stamp of approval on dubious biological differences between races. This could open up a whole can of worms. For starters, how do we decide who qualifies as African American? Is it a phenotypic designation? More research is needed to identify how people self-select their racial identity. Again, it would be wrong to deny sick patients an effective drug. Therefore, the FDA should approve BiDil for African Americans only so long as it takes to develop a test to identify all the individuals who could be treated by BiDil, whatever their race.

Now, so far, so good. The report then quotes this statement from Francis Collins (The source being here, and they forgot to state that he's the Director of the National Human Genome Research Institute, which is why he's persuasive):
In the words of Francis Collins, "a true understanding of disease risk requires a thorough examination of root causes. ‘Race’ and ‘Ethnicity’ are poorly defined terms that serve as flawed surrogates for multiple environmental and genetic factors in disease causation, including ancestral geographic origin, socioeconomic status, education and access to health care. Research must move beyond these week and imperfect proxy relationships to define the most proximate factors that influence health."

Now, here's my question: can you actually make a case that, even if this deserved strict scrutiny, it wouldn't pass? First, to even bring a case, you're going to have to have someone who's disadvantaged by the FDA denying access to BiDil to them. This would seem to have to be a non-African American with heart disease who can prove that he would be helped by the drug. After all, for strict scrutiny to be applied, there has to be some group who's being disadvantaged, and you're going to be hard pressed to show that someone's disadvantaged by a drug that's not going to work on him.

(Or I suppose you could say that the disadvantage of "disproving" the social-science theory of race through the FDA approval is more disadvantageous to African-Americans than lack of access to the drug, but this too seems like one heck of a tough sell.)

But then you're going to have to prove that drug approval solely for African-American's isn't the least restrictive means to accomplish what even Liz says is a compelling government interest. To do this, it would seem to me that you'd have to show either that (a) self-identified race (because the NEJM study did correlate with something, whether we say there's such a thing as race or not) is not a reasonable proxy for who this drug is going to work for; or (b) the development of a test for whatever genetic markers do determine the drug's usefulness will be cheap enough that it doesn't crowd out other research. I'd also think you'd want to show that the side-effects for non-effective use (i.e. if you give BiDil to non-African Americans) are non-negligible, and that the money spent developing a genetic test wouldn't be more usefully spent on other heart disease (or even disease-treating) programs with a wider applicability.

In other words, given the high priority that health gets for compelling government interests, and the fact that no less restrictive means seems available, why even bother trying to apply strict scrutiny to it, as any attempt to do so is likely to merely find that it passes muster?

Looking at some of the cited literature, it doesn't seem that there's much fear that scientists aren't trying to uncover the exact genetic nature of what race is a proxy for anyway. For instance, this study, cited in the NEJM work, spends the last two paragraphs arguing that just such research is needed.

Now, I suppose there could be some fear that, even were a test for genetic markers developed that allowed BiDil to be used on those who do not self-describe as African Americans, the manufacturers wouldn't want to sell to them. The only reason I can see for this, really, is that the cost of the test outweighed the value of the medicine, taken in aggregate. (i.e. If you tested every caucasian heart patient, you'd get a higher cost from testing and false positives/negatives than you saved by handing out the medicine.) But again, if that were the case the action would seem to pass strict scrutiny as well.

Otherwise, one is left with the curious situation of a drug manufacturer refusing to sell to non-African Americans though they possess a test which would make it profitable for them to do so. But this seems a curious concern.

So I'm assuming that there is a large amount of the science I'm simply not understanding. As it stands, I can't see why Liz is so concerned.

The Last Word On Rather

Read Farewell, My Producer. I promise it's not a thousand words about typefaces. Look: I've even put it in the Lighter Thoughts category.

Always Willing To Answer

Will Baude asks, with regards to changes at the brand-new, tech-making-me-envious Begging to Differ:

Oh, and the new site also has a forum. I am confused. What is the utility of having both comments-thread for every post and the forum with dozens of threads of its own? And how on earth will anybody who is not a site administrator be able to keep track of and read them all?

Far be it from me to debate the merits of comments with Will, especially since his resistance to comments seems to crumble every minute. But as to the latter question, how would one keep track, I'm happy to answer. I'm sure he didn't expect it, but hey, what good is a quasi-techie who doesn't take a rhetorical question hyperliterally?


The new forum runs on YaBB!, a platform that I've used on a couple of projects. (I actually prefer PHPBB, as it seems more fully-featured, but that's me.) It's a pretty basic forum, and if you're a new user to such things, there's a couple easy ways of keeping up with what looks like massive traffic.

The first, and easiest, is notification. If there's a topic you're interested in, just click the "Notification of Replies" button at the top of the page. You'll get an email whenever anyone replies. This feature will be annoying if tuned to a very active board, but if your mailbox has been feeling lonely lately, here's your medicine.

In the Info Center on the front page of the Forum, you can find a link to the ten most recently-updated topics on the board.

Finally, each topic listing will have a little button if there's a new message in the post since the last time you logged on. Of course, you'd have to be logged on.

Will I be participating? Not a chance in hell. Forums will suck whatever free time that you happen to have out of you, and that would leave my more dry than a good looking damsel at a vampire convention. But hey, if you're going to check it out and are new to forums, I hope this helps.

Actually, I will take a stab at Will's other question. Why is a forum necessary? Because pretentious blogs like his have never handled incredibly important Batman vs. Superman question.

(Yes, yes, that was a joke...)

January 11, 2005

My Sympathies to Those in Con Law

I handed on my copy of Sullivan and Gunther's Con Law textbook to a 1L yesterday so she could avoid purchasing it. For those of you 1Ls having to work your way through this poor excuse for a textbook, believe me, you have my sympathies. If it's any consolation, to two links above describe my struggle with its poor editing, its needless prolixity, and its utterly unhelpful text heirarchy.

Of course, there's a new (and longer) edition now, so who knows, it might be better. Any opinions?

Things I'm Selling My Soul For

Now that I've got a bit more time to think, my mind is wandering. Mainly to things that, had I an infinite amount of money, I'd consider buying.

For instance, this. This MG-TD is an authentic version; back when I lived in Washington I used to drive a replica of this model. OK, if I were really wealthy I'd buy a Morgan, but this would be a good second-best.

Or this, a Calabash pipe that's a steal on sale for $576.90. Which is only about $550 more than I could really pay for it at the moment.

Ah, avarice. When I update my sins of the week, it's the one that's never tough to dream up.

January 10, 2005

Notes and Memos

And like a "your note draft is finished" gift, CBS has fired four employees over the RatherGate Memos flap. As almost anyone in the blogosphere knows by now, because let's face it, you heard it before you heard it here.

If you can stomach 234 pages of lawyer-speak, the full report is here, and it doesn't pull many punches in a lot of areas, although they aren't convinced that political bias was involved. I'm going to lay my bias claims on the firm reasoning of one of my fellow students, who once exclaimed, "Why doesn't the left ever get gifts like this?" Well, mainly because if these had been Swift Boat documents, someone would have noticed the presence of Times New Roman at the appropriate interval, which is about five seconds.

While the report itself is also fairly agnostic as to whether or not these are forgeries, Appendix 4 contains the biggest non-news event ever. In pretty much the only real forensic evidence presented in the piece, document examiner Peter Tytell suggests that the Killian Memos were typed on a computer in Times New Roman font.

The summary of Tytell's analysis is good, and it's good that the Panel included it. But if there is a whitewash in the report, it's the same whitewash that has occurred at every stage of the RatherGate investigation: pretending that this was a tough call.

It wasn't. Those documents had webbed-feet serifs, flappy wingdings[1] and now a very expensive lawyer's bill for an investigative report, simply to tell us that all along Dan Rather was holding a duck.

[1]: No, there were no wingdings in the report. It's a metaphor, work with me here.

If You Meet the Buddha on the Road, Stack His Body Next To Mine

It's 3PM, which gives precisely five hours until the Note deadline. (Of course, missing the deadline by a few hours just means I have to do an extra day of work, but that's annoying in and of itself.) Only about twelve pages left, really, and this is the easy stuff: it's all analysis from here on in. The citations will be a mess, the order of paragraphs not-quite-optimal, the language stilted, but it will limp across the finish line burning and complaining like a race car in a bad Burt Reynolds movie.

If you see me online somewhere between now and then, you have my personal... is it permission, license, or agreement?... to smack me with a dead haddock. (Fresh, not frozen.) I'm on the eighth floor, so you know where to find me.

Update: (8PM) It's in. It's a train wreck, but it's in. Actually, I'm quite excited about getting it revised now, so I'll probably work a lot more on it this week. But for the moment, I'm haddock-free.

January 08, 2005

Someone Lay The Truth Bare

Note Status: About twelve pages, and about a third done. Objective is to get the majority of the text written tonight and cite tomorrow. I know it sounds strange, but it's sort of the "build the skeleton, then flesh it" style of writing that works for technical papers. Need more coffee. This rough draft is going to be very rough.

Momentary Query: What's going on at The Truth Laid Bear's Ecosystem? I'll admit that I don't pay much attention to my rank in his system, and only go there on the days when I'm heavily engaged/procrastinating. But it's a nifty technical achievement, and so when my curiousity about the strangeness of Pagerank is satisfied, I take a peek at how I'm doing at the Bear's.

Today I discovered I devolved, which isn't an unusual occurence: my rating on his site bounces up and down between marsupial and bird. But take a look at this:

Each site peaks on December 30th and moves sharply downward thereafter. Sure, the graphs are entirely the same. But they do show a striking similarity. Is this a hiccup in the Bear's system, or has there been some strange shift in the fabric of the blogosphere? Inquiring minds want to know.

UPDATE AND D'OH: Not three minutes after writing this, I clicked on the homepage of the Ecosystem. I rarely check that page itself--normally I link through someone's link to the system and manuever from there. So I missed this headline:

Announcement: December 30, 2004
Major Ecosystem cleanup activities are under way. If you have a problem with your listing, now is the time to drop N.Z. Bear a line. All blogs listed in the Ecosystem will experience significant changes in link counts and ranking over the next several days. Do not be alarmed. Remain calm. All will be well!

Mystery solved in under three minutes. Indeed, it was never a mystery. Time to get back to work, then.

What's Stranger? That Someone Googled for This, or That They Found Me?

Thanks to an anonymous visitor today, I find out that this blog Googles very well for sexual positions - cheeseburger.

Who knew?

January 07, 2005

The Tackiness One Only Gets By Going to College

Over at Ambivalent Imbroglio, Ambimb boiled my blood. I think I've mentioned before that my father was in Vietnam. Well, he returned before I was born, but oddly the shadow of that shaped my youth a great deal more than one might expect. From the time I was young, my mother would tell me stories of his time away: how they met for R&R in Hawaii (she still loves the memory of it there), how she once ordered 300 hamburgers from a McDonalds while he was in basic training (don't ask), and then a few darker tales, because not all children's stories should be nice. On the desk in my father's room is a disarmed mortar that has a story to it, a story that would be told whenever he and any other Vietnam vet were together in the house. Don't get me wrong. These aren't my tales, and I'm too young to be a part of them. But they're very, very real to me.

So as I'm taking a break from the Note (page seven!) and wandering over to Ambimb's, I see this written about the yellow ribbons on some people's cars:

Brilliant, don’t you think? Support our troops by driving around with a magnet that orders everyone else to support our troops, and if you decide you no longer feel like supporting our troops (whatever that means), just remove the magnet! Support support support! And the real genius of the whole thing is that the damned things are made in Taiwan (at least the ones I saw in stores) and every penny of profit on them is going to a handful of private individuals who don’t give a damn about any troops except insofar as the idea of those troops can be exploited for private gain.

Support our troops! Support our troops! Support our troops!

Damned ribbons.


Sometimes thoughtless words strike deeper than they should. Forget the fact that yellow ribbons are supposed to be removed. (That's the whole point.) What does it matter that these are made in Taiwan? And what right does anyone who doesn't know the person who owns the bumper in front of them have to cast aspersion's on how serious or heartfelt that person's feelings might be?

So I called him out on it. (See his comment section.) To which I got this reply:

The ribbons just strike me as a shallow and relatively thoughtless way to express an opinion that is ambiguous, at best.

And on the subject of moral superiority, it appears there's plenty of moral superiority to go around for both those who support and those who oppose the Iraq war/occupation. I think there's some moral high ground in the idea of elected leaders being truthful, honest, and open with their constitutents, rather than lying, deceiving, and acting in secret against them. You might agree. Or not. The beautiful thing is we can both be right because, in George Bush's America, there is no spoon.


Yes. Because this is all about George Bush. It's King George's War, and if one of your loved ones happens to be in it, then God forbid you express support for them: after all, it's a war of a lying, deceiving, secretive president. Just like when my Mom was missing my Dad, she was actually flacking for Goldwater and Nixon. I'm afraid I lost my temper:
Let me share with you something that happened to me on a drive recently. I stopped in a gas station near Grand Rapids and (since I was filling up a van) had a bit of time to look around the lot. Across from me was an SUV--a type of vehicle I'm really not fond of--with a yellow ribbon magnet on it. After a few minutes of filling up, another guy came over from the pump and started talking to the SUV owner, a middle-aged white woman.

"Got someone over there?"

To which the woman nodded, and the two started a very pleasant and chirpy conversation about their children: where they were serving, what part of the military, etc. I won't pretend to remember the details, but it was one of the more touching moments of my vacation.

Now, I don't know what that ribbon communicates when I see it on the car of someone I don't know. I'm afraid that whatever the existence of spoons, knives, forks, or other kitchen implements in an America that apparently now belongs to one man following an election, I'm not privy to other people's thoughts. Whether something's a magnet or a sticker doesn't tell me a damn thing about the permanence, depth, or thoughtfulness of their heart. But I rather suspect that a number of military families put those on their cars for the traditional reason: because they hope their loved ones will come back. I imagine some others do so because they hope the loved ones of others come back in one piece. Maybe they don't--maybe it has something to do with the country of manufacture of the magnet. But color me charitable to them in imagining that their expressions are no less thoughtful than mine. Maybe you know better.

In the meantime, I think about two middle-aged parents freezing in a parking lot talking about children in sun-bleached sands, and I think about the snide way you're dismissing they way they signalled each other, and I really don't give a fuck about your spoon.


I don't care how much someone despises Bush and his politics. I don't care how much a liberal thinks the war is wrong-headed. I don't care if you think that yellow-ribbons are only sported on the cars of redneck, NASCAR-lovin', red state yahoos that you never want at your dinner table. (Though I truly doubt this is so.) In fact, I don't even care if the statistical majority of people with removable decals on the back of their cars put them there out of thoughtlessness, jingoism, or whatever unclean motive you care to attribute to them.

Someone put a yellow ribbon on their car because he's staying up late at night wondering if his child's mother will come back whole. Someone's yellow ribbon means their son's letter hasn't gotten through in a while, and they're worried. Someone's yellow ribbon got put there because every time they see it, they remember this moment.

That's enough. It's enough to make the mockery meaningless and the mockers less so.

The Paradoxical Perils of Passion About One's Note Topic

I think I've begun to understand why I'm having such a hard time getting up the energy to actually write this thing, even though the deadline looms. Oddly, it's because I actually care about my Note topic, and this may have been a mistake.

While I don't want to go into too much about what the Note concerns (it almost certainly violates some right I signed over to the Law Review on a paper I'll quite cheerfully admit I never read), it's a very small subset of what I'd like to write about: reasons that Unauthorized Practice of Law statutes have become obsolete. To give my conclusion without the argument, in an ideal world I would hope that lawyers could be regulated by a combination of various opt-in standards bodies and liability systems, rather than the one-sized fits all ethics codes administered by guild-like cartels (as we have today). Groups like Nolo or We the People might choose to opt for one of these standards, or they might not, particularly if they wanted to provide legal services to those who cannot afford our current high-cost paradigm. And lawyers who felt that legal advice would be more effective bundled with other services--say, accounting--could do so merely by opting out of standards bodies that restricted multidisciplinary practice.

There's a number of reasons for my view, and I'll probably write about them more in the next couple of days. For now, suffice it to say that I think this would provide greater access to the legal system for a greater number of people at a lower cost, while simultaneously making lawyers lives happier and more meaningful. [1]

However, there's no way that topic is small enough for a note. I thought about it at the beginning of the process, and there was no way to fit it in. So what I'm writing about now is actually a small section of a much larger article. I can see that article's structure in my head: how the sections balance, how the pieces fit together. But what I have to write is a small fraction hodge-podged together from the greater whole of my passion.

(One option I'm considering for next year: scale down the amount I work on other law school projects, and instead concentrate on writing and publishing this article. It would mean sacrificing some other things, but as I said, I'm quite passionate about this subject.)

So this constrained feeling limits my urge to write. But more than this, I feel like I've already dredged all the personal value I can get from the project. I believe that I've drawn the right conclusions from my research and found the proper support. I even believe that once written, it will be an interesting article and the conclusions would be worth following and implementing as policy.

But there's the rub: it ain't gonna happen.

If my article were being written by Judge Posner and published in the most prestigious journal in the land, it simply wouldn't make a difference. The most damning indictment of the damages caused by the legal cartel; the most clear contention of social gain through lower legal cost; the most moral argument ever made in the pages of a law review would be unavailing. Any change in this area is unlikely to come through the courts or the legal academy. (There is some possibility that corporate counsel may start the ball rolling against unauthorized practice of law, but even that is doubtful.) The people who brought us The Unauthorized Practice of Law Committee v. Parsons Technology Inc., 179 F.3d 956 (1999) are not about the set aside the monopoly that makes them wealthy, that makes law professors more highly-paid than other educators, and that drives most of the machinery I'm going through now.

Which makes a law review note about this seem a little pointless. The people I'd like to reach are businesses with political clout looking to cut their legal expenses. I'd like my readers to include groups like Nolo, or other legal consumer advocates. But these are not the people most likely to read or benefit from my work if it's closeted in a law review available only to those paying large subscription fees or WEXIS access charges.

So having learned everything I need to in order to write this thing, now I'm sort of uninspired to do it. It's another tick-box on another task list of "things that have to be done in order to get out of law school." Contrast this with my clinic work--something I'd like to continue volunteering on--where I know that what I was building not only would be used, but was going to make sure that attorneys going into a courtroom could more easily and effectively help people marginalized by a legal system that--mostly due to cost--ineffectively meets their needs. That I'd bleed for. This just has to be done.

Update: I should probably make clear that the above isn't an argument against writing a note as a pedagogical requirement. Nor am I saying that law reviews shouldn't require notes (although I do wonder). However, I almost certainly should have taken more care in choosing my note topic, concentrating not only on what I wanted to write and research, but on the audience that I would be expected to address. It would have made this stage all the easier.

[1]: I know, that's a big claim. As I said, I hope to get to the whys and wherefores of this in the next couple of days, but it just didn't fit with this blog entry.

The March of Doom

Page Count: About 4.

Content: Mostly headers and introductory sentences.

Mood: This can be done. Actually, once you start writing it, it actually gets kind of exciting.

January 06, 2005

The Fraternity of the Damned, Part II

[An open letter to the Damned Fraternity]

Dear Wormwood and Friends,

Some of you may have been reading about how other bloggers have been diligently working on their Notes for the past six months, have their drafts nicely in order, and are now sitting upon thirty to forty typed pages of legal wisdom ready for various stages of submission.

And if you're a member of the Fraternity of the Damned, you know how we feel about those people. [1]

Well, Fraternal Brothers and Sisters, let me say that you're not alone. Some of us have Monday deadlines and have barely started the writing process. Some of our notes have order that could only be divined by mad prophets and chaos theoreticians. Some of us have been absorbed by dread, fear, simple lack of care or a surplus of better things to do with our lives, and thus have shoved this work aside the way like a smelly pile of festering dishes. (Someone else's dishes, a common problem if you live in my dorm.)

Actually, Wormwood, I'm not that worried: this is how the process works for me. Major projects have four or five day period of mandatory work-avoidance which come before a burst of creativity resulting in output of unparalleled adequacy. I know that while I've been playing solitaire, doing laundry, or researching how to defragment a paging file, some part of the back of my head has also been writing the Note.

Now I have merely to get that muse to vomit forth her ponderings into my conscious mind. She's normally summoned by adrenaline (check), lack of sleep (check), and quanities of coffee that swing commodities markets. [2] Today's choice is the fine "Hamilton's Blend," so named because I'm certain that if someone were to check their coffee machine, coffee beans at some point had something to do with the blend of stuff that's in it.

All other projects have either been completed or back-burnered until Monday. Now is the time, fellow Fraternals, for the rough draft to commence. We either get this damn'd thing out of the way, or let it conquer us.

Are you with me?

[Ed.-- There follows an ear-shattering silence and the chirping of crickets.]

[1]: They're lovely people, as we all know. Good as all get out, the type of folks to whom the universe should give only its best at every turn. But when deadlines loom, members of the Fraternity, we all know that there are places of pitch, oil and brimstone that we really wish were reserved for them.

[2]: Someday an enterprising reader is going to ask me about my deadlines and start purchasing the appropriate coffee futures. Whether or not this would constitute insider trading is someone else's Note, and they're welcome to it.

January 05, 2005

Brian Leiter v. National Review

There's nothing like comparing opposites. Leiter links to this post on tsunami-relief in Aceh with the comment, "Another side of the tsunami disaster in Indonesia...that you won't see mentioned in either the mainstream media or the mainstream (i.e., right-wing) blogosphere." And he's right, because the article he links to is pretty much the familiar parade of horribles regarding the political situation in Aceh, not the tsunami as such:

Well, the coastal areas of Aceh have been crushed by the earthquake and the tsunami. Large parts of Banda Aceh are under water; they’ve become part of the sea. The west coast is hardest hit and whole villages are leveled. But this is not the first catastrophe to hit Aceh. Previously, it was devastated by unnecessary and preventable poverty. Aceh is rich in resources; it’s one of the world’s main natural gas producers. It supplies much of the natural gas for South Korea and Japan, and yet the revenues have gone to Exxon Mobil and the central government in Jakarta, with almost nothing left for the poor of Aceh. And as a result, we’ve seen malnutrition and undernourishment levels among the children of Aceh running as high as 40 percent.

True enough, the article talks about the Indonesian government's interference in distributing aid to victims, but it's as much a diatribe against the opportunism and repression of a government getting in the way of aid as anything else.

I don't know about the mainstream media, and if the blogosphere has a mainstream, I've no idea where it is. (I would have assumed Kos and Instapundit were both on it.) But in the interests of checking the right-wing blogosphere, I wandered over to The Corner, and sure enough, that bit of it wasn't talking about the Indonesian military. Instead, Ms. Lopez gives this excerpt from Aljazeera.net:

Not everyone was so enthusiastic.

"The Americans have to understand our culture here," said Hilmy Bakar Almascaty, vice-chairman of the Jakarta-based Islamic Defenders Front, which is mobilising relief efforts of its own.

"If they are not sensitive to local issues then there will be problems. If American women come to Aceh, they must wear dilbab for example. There is Sharia law in Aceh and that is what is dictated."

USAid's Bok said it was unlikely US service personnel would adhere to a Muslim dresscode.

"I don't think the practice of Islam in Aceh is such that it forces all people to wear dilbab," said Weiss. "This is not Saudi Arabia."

In addition to the helicopters, American forces have committed six C-130 transport planes to the relief effort. Four Australian aircraft have been flying supplies between Banda Aceh since Tuesday. Both nations are flying C-130 transport planes on a regular run between Medan and Band Aceh.


In other words, although the Al Jazeera article is actually a pretty interesting story about Aceh taken as a whole, The Corner's excerpt is posted as much a diatribe against the hard-headedness of Islamic fundamentalists getting in the way of aid as anything else.

At the end of a long day in which contrary to my expectations I actually got quite a lot done, I have to look at that and laugh. It reminds me of what Neil Gaiman's words about Dream in The Kindly Ones:

Each facet catches the light in its own way. It glints and sparkles and flashes uniquely. It would almost be possible to believe that the facet was the jewel; not just a tiny part of it. But then, as we move the jewel another facet catches the light ... We see an aspect of the whole. But the facet is not the jewel.

So true.

Amazon Red Cross Donation Link

I've added a box on the right-hand navbar that you can use to donate to the American Red Cross in support of relief for the victims of the recent tsunami. It's a good cause: please do if you can afford it.

(My own donation is going to have to wait until my loan-check arrives and another windfall comes through, but that's only a week away.)

Near as I can tell, there's nothing that lets me track who donates and doesn't, and unlike the rest of the Amazon links on the site, I don't get a cut. So don't anyone get cynical, OK? Though frankly, if you make a cynical comment and donate, hell, I'm a big guy and can take it on the chin.

January 04, 2005

The Incredible Inverse Efficiency Engine

Most of my readers will have noticed that I've said almost nothing over the past two weeks. Some of my readers also know that the first rough draft of my Note is due next Monday. Others will notice that I just posted a long blog entry. Too-clever-by-half readers will thus assume that because I've not been blogging, I've been getting my note done, and that the new entry means I'm nearly finished.

Actually, nothing could be further from the truth. One of the curious mysteries of life is that I post more on days in which I've been most productive. For one thing, if I'm blogging, it means I've been sitting in front of my computer, which means work has more or less inevitably gotten accomplished. If I'm blogging, it means I've not been playing some computer game, watching television, reading a novel, or involving myself in some ill-considered romance.

So I'm more productive when I'm blogging. What does that mean for you, dear reader? Well, given that I've got the aforementioned Monday deadline looming before me like a hideous beast, and given that I've not done half of what I should have by now, you're likely to hear a lot from me.

You may consider this good news or forewarning, I suppose.

CJR, Rather, and Burden-Shifting

I would have thought that the last defenders of CBS memoranda might have headed the way of the dinosaurs. At the very worst, I thought I might find the true head-in-the-sand crowd at the blog I love to mock, The Filibuster. But low and behold, I come back from my "vacation" (i.e. doing nothing time) to find that none other than the Columbia Journalism Review has written a very selective attack on the blogosphere, essentially trying to revive the issue of the authenticity of the documents.

Much digital ink has already been spilled attacking the author's factual assertions (pay particular attention to the articles by Volokh and Yourish, and I'm a bit late to the game to add to them. [1] More interesting to me is why such a piece has been written in the first place. A number of theories have been raised, mostly centering on a desire for self-aggrandizement on the part of the author. But I think that's too unsubtle: I think we've just seen a prelude to CBS's best-hope outcome from it's long-awaited report.

The Kid Has A Point...
It should be noted that Corey Pein doesn't spend a word trying to evaluate or analyze any of the evidence she's presented. Indeed, the best hard evidence against her position is dismissed as "long and technical, discouraging close examination." (Amusing, because I and several of my enthralled associates analyzed it quite closely. Pein, it seems, didn't.) Similarly, there's no technical evaluation of the claims of Dr. David Hailey (original link to his work unavailable, since Dr. Hailey's taken it down), although there has been plenty of back and forth with which to do so. What is thrown up is a lot of chatter which attempts to show that blogs didn't prove that the documents were fake. What she's doing is burden shifting--but hiding the ball behind a point that's indisputable true.

Essentially, Pein is stating that if you take the blogosphere as a whole, there was a lot of hasty rushing to judgment that the memos must be false. And I'll grant her that, because when the scandals first broke, I said:

Folks, this is just goddamn dumb. The mistakes--a use of a proportional font, superscript on ordinal numbers, kerning, etc--scream out 'this document is a fake,' obvious to anyone who worked in an office in that era.

Now, as we soon found out--due to blogospheric reporters and typewriter obsessive--yes, there were typewriters that could do superscript in those days. And there were typewriters that did proportional fonts, at least the IBM Selectric Composer. My words--and those who said there was "no way" this could have been done on a typewriter--were overly hasty.

It's an admission I'm happy to make, because at the end of the day it's not particularly fatal. Even admitting all of the above, the authenticity question goes from "impossible" to "very, very improbable indeed." Unless the Columbia Journalism Review is equipped with an Infinite Improbability Drive [2], this doesn't get one's argument very far at all. At the end of the day, even using a preponderance of the evidence, things don't look good for CBS News.

...Except That the Kid Don't Got A Point
Which is where the CJR article really falls down. Pein is correct that somewhere in the blogosphere, someone is shooting off his mouth about something he doesn't know about. (Check back here every now and then. --Ed.) If you take the blogosphere as a whole, instead of specific experts or those who talk to them, you're likely to get a lot of misinformation. But that hardly suggests that the "mainstream media," as they're frequently called, charged blindly into accusations a misconduct by CBS because they were duped by spurious charges of forgery promoted by hyperactive bloggers.

What Pein ignores is that the burden of proof of authenticity was on CBS. It was not the job of CBS's critics to prove that the documents were fake: it is sufficient for them to raise questions, to which CBS should have answers. Yes, there was a lot of scholarly (and not-so-scholarly) speculation on the provenance of the memos, but that was mostly because the data needed to evaluate them was firmly in the hands of CBS, which was busy insistently protecting the journalist's favorite "oh just trust me" character, the anonymous source.

Given that, Pein completely ignores what was miserable about CBS's performance, and what the mainstream media (to its credit) picked up on in listening to bloggers: not that the criticisms of the bloggers were iron-clad--they couldn't be without access to the source material--but that CBS had no answers. Or rather, they had a stream of answers that turned out, on inspection, to be false.

So Why Is This Important?
OK, so Pein has a pernicious big point hidden inside a true little one. Why does it matter?

Despite everything that Pein puts forward, I can't think of anyone who expects the documents to be revealed as genuine. (I'd be shocked, and if they are, you'll se a retraction from me quickly.) So the question for CBS becomes one of damage control.

At the moment, the best move for CBS is to turn this from something that could only be accomplished through deliberate malice or possibly willful incompetence into someting that a mere mortal might somehow allow to slip. And here's where the blogosphere becomes an unfortunate accomplice in the trick.

You see, hundreds of pages of commentary churned over the internet in the months after Rather made his fateful 60 Minutes Wednesday broadcast. There was a lot of back and forth, charge and countercharge, with each side trying to prove what was either impossible or at least very difficult: the absolute falsehood or veracity of the CBS memos. And all of this was accomplished--for the most part--by examining a few PDFs floating about online.

This makes it look like CBS's judgment call might be a battle of the experts, and aw shucks, they just got it wrong.

And here's where I stand by the snap judgment I quoted from my original post on this subject. This wasn't a reasonable mistake, it was really goddamn dumb. Forget kerning, superscripting, proportional fonts and the other technical terms thrown around by folks who remember what hot lead is. These documents looked like Microsoft Word documents, and didn't look like what anyone would expect a typewriter from the 1970s to produce. That should have prompted greater scrutiny, at the very least, and any journalist worth his salt should have made sure that before the documents were run they were bulletproof. Answers to reasonably-expected criticism would be ready, and they wouldn't just be stonewalls.

That's not what happened at CBS. Be it through bias, malice, or incompetence, no one prepared for the backlash that should have been obvious the moment the documents were uploaded. To do such a thing in an election year, in a piece that is an attack on one of the candidates is professionally irresponsible. To not have a better answer than, "Trust me, I'm Dan Rather" isn't a mistake--it's damning.

Pein is right in that there's a double-standard in action with regards to CBS's conduct as opposed to the blogosphere, but that is simply because Mr. Rather bore the burden of proving his reporting to be true, not because the blogosphere is inherently sloppy, or the rest of the media rushed to judgment.

[1]: These factual assertions range from the trivial and indirect (he seems to suggest that Free Republic is a blog) to the downright laughable ("[Being able to reproduce a document in Word] proves nothing — you could make a replica of almost any document using Word.") This last is pretty funny considering it shows a specific ignorance of typefaces (since many typewriter typefaces weren't transfered into digital format) and indeed, a less-than-layman knowledge of forgery.

[2]: I'm unaware of Columbia researching any such thing, not even at the Columbia University Science Fiction Society. As a courtesy to the CJR, however, I will keep my eyes open for two-headed men of felonious intent.

Giving The Devil His Due

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Someone Lay The Truth Bare (1)
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Anthony wrote: Thanks for that. I'm familiar with ... [more]

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Tony the Pony wrote: Keep it up, and good luck! I'm a... [more]

The Fraternity of the Damned, Part II (3)
A. Rickey wrote: Alison, when I make my first "Frate... [more]

Brian Leiter v. National Review (0)
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CJR, Rather, and Burden-Shifting (3)
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