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October 31, 2005

Well, It's Official or A Minority of One

Bush has now picked Judge Samuel Alito as his new Supreme Court nominee. He's everything the Miers critics could ask for in his formal credentials, a potential fifth Catholic on the Court, and even his nickname (Scalito) provides comfort to the Right. No word on his Federalist Society membership, but I'm sure he's got the membership card, the decoder ring and knows the secret handshake. Certainly I can't find anything he's said that might be considered even moderately critical of the Cult of Madison.

I suppose it's a victory in senses, but it's an abandonment of the field I care about. Sure, we may get to fight over, and probably confirm, another Scalia. Yet the nomination strengthens the sense of the Court as a Clerisy, with the high priests chosen from the same set of cardinals and no room for the laity. I wonder if I'll see even a practitioner, to say nothing of a non-lawyer, nominated in my lifetime.

Update: I realize I'm out of the conservative mainstream on this one, but the treatment of the Miers nomination by movement conservatives leaves me with a particularly bitter heart towards those who are usually my compatriots. The debate became more foul and nasty than necessary, and the double-standards of the critics were breathtaking. The grammar in an ABA in-house editorial wasn't up to the standards of a Supreme Court reporter? Shock and surprise: few things are edited as heavily as judicial opinions. On the other hand, there's barely a blush by Prof. Bainbridge that he got the name of the magazine wrong, shattering his glass house as he was throwing stones. His blog, it appears, should be held to a lesser professional standard than a bar journal.

For the first time in my life, I'm considering sitting out a mid-term election, and the Republicans aren't getting my money this go around. The anti-Miers crowd (and some of the anti-anti-Miers crowd) are crowing about how we should all be united now. Not sure I buy this.

October 27, 2005

Miers Withdraws

The New York Times is reporting that Miers has withdrawn.

Ah well. On the one hand, the crowing of the hard conservative blogosphere is going to be insufferable. Sadly, I doubt we'll get another non-standard nominee: my money is now on the same old standard issue appeals court judge, or at the outside a professor, almost certainly one who's done sufficient sucking up to the Federalist Society as to not have their loyalty questioned.

On the other hand, the increased traffic to Professor Bainbridge on this issue has been enough to have knock-on effects on my stats. That gives me an interesting set of server statistics to analyze. Never say I can't find a silver lining.

October 25, 2005

Attention Venture Capitalists

With the value of this blog, I might be able to pay my expenses for one year of law school:


My blog is worth $44,598.66.
How much is your blog worth?

The calculation behind this relies on values derived from the AOL/Weblogs.com deal. I'm not really holding my breath. (Link via Volokh.)

UPDATE: Hmm. It appears that there are people taking this calculator with what might appear to be seriousness. I was pretty certain it was meant to mock the AOL/Weblogs.com deal, but looking at the rest of the site on which the calculator appears, I'm no longer so sure.

Prof. Ribstein explains exactly why the number above is bunk, and what conclusions can be drawn from it. I would have thought it was obvious but for the sake of clarity, I suppose I should be explicit in stating that you'd have to be insane to pay me $40K for this. I don't think I could ethically take your money.

October 24, 2005

How Can You Have Writer's Block When You Have the Internet?

Somewhere in this link there is a blog post struggling to get out.

Since I can't come up with it right now, I give you the link in this chrysalis of a post.

October 20, 2005

Wish I Could

I so wish that I could join in National Novel Writing Month, something I've always wanted to do. Sadly, this November just isn't going to have the time.

If only they'd have a second month over the summer sometime. Well, not this summer, when I'll be studying for the bar, but a summer in general. . . .

Gadget Review Thursday

OK, enough curmudgeonly stuff about Bluebooking and Miers. I'm officially declaring today Gadget Review Thursday. Over the next 24 hours, expect some info on matters technical and technological.

October 19, 2005

Pot, Meet Kettle? or A Challenge to Those With Perfect Comma Skills

After National Review posted a PDFof Miers' response to Senate Judiciary questions, Professors Bainbridge, Fleischer, Hurt and Lindgren let fire with all barrels at the quality of the writing, taking particular glee in the (mis)use of commas. Given that most law students spend a good part of at least one year bent over drafts of law review articles submitted in 'final' form, I'm sure I'm not the only law student who saw the irony in this particular barrage of criticism.

Me, I say let he who is without sin cast the first stone here. Certainly no one submits a law review article with the expectation that it will be used to judge their fitness for the Supreme Court. Nevertheless, law review articles are still professional writing, and they are usually written in conditions distinctly more conducive to error-free drafting. For instance, very few essays (not to say articles) are written in around a week's worth of time, they are generally on a topic of the author's choosing, and they often benefit from the dedicated ditch-digging of a research assistant.

Here's a challenge to those profs (or anyone else, for that matter) who wish to judge such work: tomorrow, post a draft of the last law review article you sent off for publication, preferably before a research assistant went through it. Post it against a blueline of the next two rounds of commentary received from the staff editors and highlight the grammar and spelling errors. Or even better, hand the draft over to someone with an incentive to show the same generousity of spirit--say, someone to whom you gave a bad mark on an exam--and let them publish a piece on your blog highlighting all the errors of grammar, spelling or citation.

I wouldn't relish doing that, but I went through enough blue pencils last year to suspect that very few people, even distinguished academics, would take that challenge.

Bluebook Followup: Do As We Say, Not As We Do

Some time ago I criticized the Bluebook's rules on citing blogs, particularly because full URLS to blog posts are not supposed to be used.

Today the blawgosphere is abuzz with the launch of the Pocket Part, the quasi-blog of the Yale Law Journal. It's really quite a nice site, both in content and in style. But how does Yale suggest that one should cite to the Pocket Part?

Preferred Citation: Abraham Bell & Gideon Parchomovsky, Of Property and Federalism, Yale L.J., Oct. 2005 (The Pocket Part), http://www.thepocketpart.org/2005/10/bell_parchomovsky.html.
Nice to see one of the Gang of Four deciding that the rules on blog citation don't make sense.

UPDATE: Amazing. I never thought I had this many readers, but this post wasn't up for fifteen minutes before I received an email arguing that the bluebooking for the Pocket Part should be different because it isn't a "blog."

I suppose one can wonder about blogginess in the way that one can wonder about angels dancing on the head of a pin. Is it a matter of having consistent authors? Frequent postings? The ability to comment? I won't venture into that terrain, except to point out that as a technical matter, the Pocket Part's source code suggests at least a kissing-cousin relationship to blogdom:

meta name="generator" content="Movable Type 3.2"

Quick Way To Eliminate a LOT of Comment Spam

I've been getting over 100 spam messages a day, almost all of the form:

You might be interested in

Notice two things: the spam message is included in H1 tags, and as a result it's extra-obnoxious, because it's very, very big. Spammers like to use H1 tags because Google and other search engines give words in those tags much more influence.

I tried getting Spamlookup to junk any link that included an H1 tag, but despite having told the plugin to junk anything with the string "<h1>", the spam kept on coming. Then, thanks to The Tweezer's Edge, I found the solution. You can read Tweezer for the precise whys and wherefores, but if you've been getting a lot of comment spam with H1 tags (about 99% of the spam I've received in the last three weeks, and over 1,000 false comments), here's what you need to exclude in the "Keywords to Junk" box of the "Spamlookup - Keyword Filter Settings" dialogue:

/<h1>/i

That's the appropriate regex entry. If you want it to be more powerful, put a space and a '4' after the 'i' in the string above.

October 17, 2005

Me and Baldrick

"I have a cunning plan." Is there any better phrase in the English language? [1] And those words popped into my mind immediately when the following email popped into my inbox today:

ACS is having a *PARTY.* [2] There will be an *OPEN BAR* (beer and wine) and appetizers.

The party is for individuals who JOIN (or have joined) the National Chapter of ACS. ACS will have signup sheets at the event. Student dues are $10.


I'm sure some of my readers now have the same light bulb appearing over their heads that lit above mine this morning.

Sure, the event doesn't last that long, the drinks will likely never have been within sight of the top shelf, and the venue will probably give a reasonable discount. Such is the way of the open bar. Nevertheless, given the price of alcohol at most venues in New York City, it shouldn't be difficult for a dedicated drinker to make his way through ten dollars of even discounted booze. Why, if we got all the legal conservatives in New York City together, and we all signed up to join the ACS, and we paid absolutely no attention to the health of our livers, in one short hour we could drink the institution into a beer-sodden bankruptcy!

Sadly, it's the kind of idea whose appeal doesn't last for long if one is sober. To point out the very smallest of its flaws: if any one of the would-be raiders were ever to be appointed to high office, folks like those presently fuming about the Miers confirmation would waste no time in claiming that our principles were compromised. After all, we would have shunned the Federalist Society and joined the ACS. . . .

[1]: I am referring, of course, to Baldrick, sidekick to Edmund Blackadder in the eponymous series of BBC comedies. Baldrick's cunning plans are never very cunning, and quite often do not even rise to the level of a plan. Wikipedia gives this example: "[E]scaping the guillotine by waiting until your head has been cut off, then 'springing into action' and running 'around and around the farmyard, and out the farmyard gate', in the style of a chicken." Such plans are amusing, utterly ridiculous, and doomed to certain failure. The suggestion above should be read in that light.

[2]: In the interests of full disclosure, I've removed the time, place, and location from the email, since the Columbia ACS Blog hasn't published them, but added the link to their blog. I've also made some slight formatting changes and omissions of other events. I don't know why I bother pointing this out, other than the fact that some of my readers may have obsessive interest in the nature of law school student society emails.

October 15, 2005

Non-Demon-inational

Via Volokh, we learn that a marching band in Virginia has pulled "The Devil Went Down to Georgia" from its lineup: if you can't play "Amazing Grace," why should you be able to talk about the devil? Prof. Volokh lays this to rest: "For those curious about whether playing The Devil Went Down to Georgia would be an Establishment Clause violation, the answer is no. . . ."

As well it shouldn't. After all, while God is such a divider that the two-word presence of his name is enough to send some atheists running to the courthouse, the Devil is a non-denominational uniter of people, creeds, and even musical tastes. Consider:

No way you'll get Old Nick on an Establishment Charge rap: he's about as broad-minded as you can get.

(Mostly) Men Behaving Badly

I have to admit to a strong sense of disappointment in my party regarding the Miers nomination. For one thing, the gnashing of teeth and wailing lamentations from Bush-apostates like Prof. Bainbridge (who admits to "24/7" commentary on the subject) seems self-defeating. Instead of waiting for her to speak before the Judiciary Committee, they've made her out to be clearly incompetent based mostly upon third-hand commentary. (Sorry, folks, I could make a meal out of anyone if I were willing to take birthday cards out of context and had access to every silly thing they'd written.) That's not argument, it's character assassination.

In the meantime, a woman who is quite probably capable and competent is going to appear before the Judiciary Committee, primed with Democrats pretty much wishing her well (as one wishes well a hand grenade fortuitously popping out of nowhere and into an enemy foxhole) and Republicans torn between worries about her qualifications and the political fallout from rejecting a nominee. Despite some rather juvenile humor from the peanut gallery (sorry, Jeremy, but this stunt's beneath you), there's no evidence that Miers is going to make a fool of herself. Indeed, if she's as good a litigator as she seems, she may be surprising good at live hearings. On the other hand, the Bainbridges of this world have prepared their readers for such an awful spectacle of incompetence that anything short of the purely unqualified is going to exceed expectations.

In the meantime, the pure petulance of the anti-Miers brigade is bringing me more strongly around to her side. Take, for instance, the brouhaha that erupted because Laura Bush admitted--in response to a question, not something she brought up--that it was possible that some of the criticism of Miers was sexist. What was Bainbridge's response? [1] "Joe Gandelman defends Harriet Miers' critics from Laura Bush's charge that we're all just a bunch of sexist pigs. (I wonder why Laura forgot the elitist talking point.)"

Let's forget the fact that there's serious dispute as to whether the First Lady was trying to just blow off the comment. More importantly, she's right. Look at the transcript:

Lauer: Some are suggesting there’s a little possible sexism in the criticism of Judge [sic] Miers.

Laura Bush: That’s possible. I think --

Lauer: How would you feel about that?

Laura Bush: That’s possible. . . .


Now here's a challenge to serious conservatives, that is to say those of us who aren't so busy jerking our knees to have given up on thought: do we really think that none of the criticism of Miers is driven by sexism? That if given such a low threshold as "little possible sexism" you think that our party is completely free of it?

If you do, please take the rose-tinted goggles off and venture out into the bits of the blogosphere you don't frequent. Take a crawl through FreeRepublic.com and tell me you don't find a sexist word there. Just type "Harriet Miers" and "sexist" into Technorati and see what some people are saying. Indeed, note that the question wasn't even limiting itself to conservative criticism. I think there's a good case to be made that Maureen Dowd's recent criticism of Miers was itself sexist (sorry, can't find a non-subscription link), a case most amusingly put by the Bad Hair Blog:

[On Dowd's assertion that accusations of sexism are "silly."] Pardon my ignorance of "silly", but to have the first female nominee in 12 years compared to a movie star's mistress and a presidential bimbo [Monica Lewinsky] . . . . and flat-out state she got the job by "catering to his every need", is sexist.

When Bainbridge and Gerard Bradley want to complain that they are being called sexists due to such broad statements, it can only be because they're including themselves in a "we" that includes every bottom-feeder at the least-moderate (or moderated) bulletin boards and Maureen Dowd. I suppose that's one defense against an accusation of elitism, in which case hand me the port and cigars and consider me without insult.

Me, I'm going to wait for the hearings and read people who are spending less time complaining about the nomination and more time addressing an actual issue: there's not a lot of good information about Miers out there. Certainly lack of information is a fact. Yet even that is one more reason I'm impressed by the pro-Miers authors: people like Beldar have been doing research and actually adding data and perspective. Sure, he's a partisan and you have to take some of his words with a grain of salt. But at least it's more data.

[1]: I hate to pick on Bainbridge here, not only because he's on my side of the aisle but because he's said nice things about me. Nonetheless, he's also one of the most vocal of the anti-Miers voices within my subset of the blogosphere. He's also made it a point to doubt her conservatism, while justifying this with rather poor proxies for conservative belief.

And I have to find a certain amount of amusement in his umbrage at being called elitist. He's a cigar-smoking self-confessed wine snob living in a posh area of LA, a professor who blogs about putting iPods in BMWs. . . . Certainly there's an element of protesting too much here?

October 14, 2005

If You Don't See Me For A While, It's Because I'm Reading...

Anything I can get my hands on about a case called Sotelo v. DirectRevenue, which apparently holds that spyware can constitute trespass to chattels. (Hat tip to Instapundit.)

The case is being pursued the the Collns Law Firm, but the only document I can find on a public website so far is the order not to dismiss. (See here.) Lexis doesn't seem to have the case yet, so I'm searching everywhere I can. Taking time only to tell you all the good news, of course.

(Right, I got all of that wrong. The only record that I've found with regards to the case is the motion to dismiss, which dates from August 29th. There doesn't seem to be a ruling so far, despite the claim in the first paragraph of the USA Today piece, just enough to survive dismissal. That should teach me to write things quickly because I'm excited. Blame it on all the spam I've been peeling off my machine.

The case is available on Lexis, and the only filed opinion is the one I linked above. The case is Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219.)

If you've got a chance, it's well worth reading the case just to watch a number of spurious defenses get raised. I particularly liked this:

DirectRevenue and AccuQuote also argue that each advertisement that plaintiff alleges he received as a result of Spyware "would have contained a link with yet another opportunity to view the EULA." According to DirectRevenue and AccuQuote, clicking on a small button with question mark in the corner of the pop-up advertisements leads to additional information about Spyware, another opportunity to read the EULA, and instructions on how to uninstall Spyware. The question box does not indicate that it links to information regarding the source of the advertisements or to any kind of user agreement, however. Moreover, by the time plaintiff began receiving the advertisements Spyware had already been installed, and the computer damage had begun.

I remember getting Ceres off of other people's PCs, and the whole thing was a nightmare. The question mark in the corner of the pop-up? It looked a lot like the question mark that appears in a lot of Windows XP windows to indicate "help." No usability expert would seriously consider a question mark to be an adequate symbol for "click here to read the EULA," especially positioned so close to another mark with a similar meaning. Making that argument is either an admission on the part of DirectRevenue that they're deceptive, or an argument that they're incompetent.

Of course, for "everything but the kitchen sink," the plaintiff's allegations deserve an award:

Plaintiff also alleges that Spyware and the resource-consuming advertisements sent to a computer by Spyware cause computers to slow down, take up the bandwidth of the user's Internet connection, incur increased Internet-use charges, deplete a computer's memory, utilize pixels and screen-space on monitors, require more energy because slowed computers must be kept on for longer, and reduce a user's productivity while increasing their frustration.

Let's face it, the last one is the significant cost, although the first few are pretty good. But require more energy because slow computers must be kept on for longer? I'd hate to have to monetize the microscopic damage of that. On the other hand, how about: the user is required to find a PC-fluent friend who can remove all of the noxious software that the Ceres 'uninstaller' refuses to clean up?

The part of the case that interests me most: how do you distinguish Intel v. Hamidi? (That's the case in which Intel wanted to sue a former employee for trespass to chattels when he sent quite a few emails to their employees.) The court specifically addresses Hamidi pointing to the fact that the plaintiff alleges more damage on behalf of his computer. And again, with Ceres I would believe this. At the end of the day, none of Intel's computers were going to be burdened for a microsecond by Hamidi's emails, but some pretty good desktop PCs will slow to a crawl when Ceres got hold of them.

In any event, keep an eye on the Collins Law Firm and their work in this area: if they manage this case, I hope the next thing they look into is comment spammers on blogs.

October 09, 2005

What It Takes To Get Me To Read The New York Times

Have P. J. O'Rourke write for it. Since many of my readers are his fans, I hope you check out the link, in which he takes a well-deserved chainsaw to the ridiculous musings of reviews a book by an author from the Village Voice.

To the Times of London: Fire Ruth Gledhill

Glancing over at Technorati, I find that the most commented-upon news article at the moment is titled Catholic Church no longer swears by truth of the Bible, referring to the Catholic bishops of England, Wales, and Scotland publishing The Gift of Scripture, a teaching document explaining the Dei Verbum. The article is a perfect example of shoddy journalism. There's nothing in it that isn't at least technically true, but the entire piece is meant to give an impression that's false. The leader makes the document sound like a revolution in Catholic thought (and Dei Verbum's 40th anniversary gets one sentence, and little explanation, in paragraph 19), instead of a teaching document on forty year old doctrine.

And sure enough, if you browse through blogs that cite the piece, you get quite a few like this: "This is huge. Of course, the Phariseeic theo-conservatives of our country has to maintain that the bible tells the absolute truth in order to manipulate the "faithful". Hopefully atleast [sic] some of that brainwashed crew will catch on." No, it's a teaching document, and the idea that Catholics and Protestants (and even different Protestants) disagree on interpretations of the Bible hasn't been "news" since Martin Luther and the 95 Theses.

A more accurate but less hot-button headline might read "Catholics Uphold Forty Year Doctrine: Bible Not To Be Read Literally." But one notes the article is by Ruth Gledhill, the credulous incompetent who wrote a love letter disguised as journalism to an obscure and badly-researched study purporting to show that religion causes social dysfunction, so that explains the over-the-top headline and the spin-to-distortion writing.

The bigger question is what's going on at the Times. Certainly Ms. Redhill's articles are getting her name noticed, which is probably good for her professionally. I'd also suppose that her breathless writing is getting more hits for the Times online edition. But can it really be good for the newspaper itself to be publishing pieces so blatantly bad?

October 08, 2005

Who Cares if Miers is Not A Mason? Err... Federalist?

First, I should clear up a misconception: despite some assertions to the contrary out there, I'm not absolutely in favor of the Miers nomination. I don't think I have enough information,[1] nor do I think anyone yet does, to make an informed judgment. Those who have not reserved judgment have by and large put forward reasons to reject her nomination that do not persuade me: she's not a judge or a professor and hasn't collected the right brass rings. Before I'm willing to say she's unqualified, I'd like evidence that Miers is not smart or thoughtful, not merely that she's missing robes or ermine.

But worse than the whiff of elitism is the wailing at the Federalist Society, where the egos have been quite obviously bruised. Professor Richard Garnett started the banshee howl on Natonal Review's "Bench Memos," and both Prof. Randy Barnett and Prof. Bainbridge pick up on the theme. How has Miers raised such angst among the Feds (or at least their fellow travellers)? Among other things, by stating in some decades-old testimony that she wouldn't belong to the Federalist Society because "I just feel like it's better not to be involved in organizations that seem to color your view one way or the other for people who are examining you."

Good for her.

Look, there's nothing wrong with the Federalist Society as such, and unlike the American Constitution Society it doesn't have a strong sense of redundancy. It does good work, gets good speakers, and serves as a social network for conservatives who wish to be "plugged in." But the interests of the FedSoc are convergent with only part of the interests of the Republican Party or conservatives generally. Libertarians have far greater influence within the Society than they do within the conservative movement as a whole, and to the extent that the Society speaks with one voice, it speaks for, to, and with the twangy tones of Gabriel the Professor rather than Joe Six Pack. [2] Just because the Society is the only conservative constituency Bush has in legal academia, it does not follow that they're the only or even a necessary constituency for him to observe when making nominations.

The near death-grip that the Federalist Society has on the claim to conservatism in academia has become a stifling assumption. I don't propose that the society be fractured into a hundred different splinter groups, as that would merely turn what remains into a clone of the ACS. But could they possibly admit that one can be a conservative on campus, or a conservative working in the law, and not wish to have their damnable silhouette stamped upon one's forehead? (And as for cronyism, could we please concede that the President can nominate a candidate who is conservative without having to "pay his dues" to the Society? Were they really the only ones waiting for long years in the wilderness? And are we really objecting to cronyism, or that he's chosen the wrong kind of crony?)

Garnett's piece deserves more attention, but for this line:

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.

You've heard it from Prof. Garnett himself: who cares how good a lawyer she is, what her opinions or what her jurisprudence? If she's not prostrated herself before a graven image of Madison's Shadow, she's not fit for conservative support.

B----- that for a game of soldiers. Miers may eventually lose my support on the merits, but not because she doesn't belong to the right kind of club.

UPDATE: Feddie at Southern Appeal joins the "how dare they diss the Federalists" bandwagon. Note that he--like all the other supporters--endorses Garnett's who-cares-who-she-is-if-she's-not-one-of-us rhetoric. Read some of the commentors at his site, and you cease to wonder why Miers might not want to have been associated. And if she ever did, she may very well not wish to be now.

[1]: Now, of course, more information about Miers is coming out. A very good (and lengthy) piece on The Beldar Blog, for instance, looks through Westlaw to examine cases in which Miers was a critical player. The Volokh Conspiracy, while containing a lot of commentary and speculation, has also been a good source of primary information.

[2]: To point out the obvious, the Federalist Society is hardly an orthodoxy, and indeed includes a few Democrats and liberals. Libertarians do not have a lock upon the Society. They do, however, punch far above their weight in the wider world. Further, Federalists tend to be originalists in jurisprudence, rather than consequentialists or pragmatists. Conservatives, on the other hand, may very well be pragmatic about their judicial choices: it is by no means impossible to be both a conservative and a judicial realist. (Or to decide that you don't really care about getting the right ruling, so long as you get the conservative one. A fair few conservatives wouldn't mind a right-wing Earl Warren or Douglas, rather than a Scalia.)

October 07, 2005

Right Wing Scoop

Professor Bainbridge questions a perceived lack of conservative influence in the blogosphere:

I have the distinct impression that the Democratic Party sees the liberal blogosphere as being inside the tent, while the Republican Party views the conservative blogosphere as being somewhere between an irrelevance and a minor nuisance. . . . [A]ll of this raises the question of how those of us in the conservative blogosphere can elevate ourselves into the category of genuine problem as opposed to mere nuisances. I'm open to suggestions.

As Professor Bainbridge is a believer in neo-institutional economics, see, e.g., Stephen Bainbridge, 97 Nw. U. L. Rev 547, n. 225 ("Neoinstitutional economics . . . is the basic economic model on which my scholarship is based"), I'm surprised he didn't focus on the institutional differences between the differing sides of the blogosphere. The term "blog" covers a multitude of sins, and as in many cases, the sins of the left and the right aren't really comparable.

I touched upon these here and here in a discussion of a report by the New Politics Institute. While the report was blatantly self-serving in stating that the blogosphere as a whole is more left than right (basically doctoring its survey to get the results it wanted), they did point out that left-wing blogs have a tendency to use community-building software like Scoop, and that the sites are often not so much "blogs" as aggregations or communities of bloggers. (Indeed, Scoop sites have a tendency to look more like politicized versions of Livejournal or Xanga. While both describe themselves as "blogging" software, much of their usefulness lies in their ability to form communities.)

By aggregating large numbers of internet users in one place, sites like DailyKos muster more political influence simply because they make it easier to find the pulse of a subgroup of the Democratic Party (or at least the extreme left, and there is considerable overlap). They're also much more useful as support tools, because fundraising or campaign support can be organized at a grassroots level at a much lower cost.

To the best of my knowledge, a Scoop-style site of Kos-level prominence doesn't yet exist, although there's probably considerable room for such a site if it were to attract sufficient talent. Imagine if The Volokh Conspiracy were to move towards a Scoop-style community, or even better, if some of the conservative law professors like Bainbridge or the Federalist Society were to start one.

Now if someone wanted to start one and needed a sysadmin....

(Post updated, embarassingly, to correct the Bainbridge quote, although there's no substantial difference. (I forgot the ellipses.) I should also point out that the only reason I'm surprised by Prof. Bainbridge not jumping to an institutional analysis of how blogs are structured is because I've been reading a lot of his corporate law writing recently for a different project. As a result, it's natural in my mind that the first thing he should do when looking at differential influence in the blogosphere is build a model explaining it. This is more my tunnel-vision, however, and just shows how one's judgment can be skewed by "knowing" someone primarily through their published work.

That does lead me to wonder, however, if someone who only read Bainbridge on Wine might expect Bainbridge would first hypothesize a merlot/chardonnay split between liberal and conservative blogs. . . .)

October 06, 2005

Maybe He Knows Something We Don't?

Howard Dean on MSNBC's "Hardball":

In one eyebrow-raising moment, Dean invoked a crude phrase usually reserved for the locker room when urging Bush to make public Supreme Court nominee Harriet Miers's White House records. "I think with a lifetime appointment to the Supreme Court, you can't play, you know, hide the salami, or whatever it's called," he said.

(via Althouse)

Ahem.

October 05, 2005

Needing to Upgrade My Phone

I'm in the market for upgrading my phone on another two year contract right now. This makes two questions particularly relevant, and I welcome input from my readers. Does anyone have a suggestion for either a good phone company to switch to (I'm only moderately happy with Verizon) or a good cell phone that I can get as an upgrade?

Still Not Stressing Over Miers

I certainly seem to be in the minority in the conservative blawgosphere in having an initial positive attitude about the Miers nomination. That may change, of course, if more comes out to be unhappy about. But in general, I've found the arguments about Miers lack of qualifications uninspiring. The legal profession is one that puts great store in hierarchy, of course, and it's not surprising to see columns like today's by George F. Will complaining that a judge may be minimally qualified but should only be confirmed if she is excellent. The best rebuttal I've seen to this so far comes from Reginald Brown of Wilmer Cutler (via Prof. Kerr at Volokh), particularly this bit:

Will’s fourth argument is the most dangerous and absurd. He suggests Miers shouldn’t be approved because she hasn’t shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. . . . Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court’s aggrandizement of power over time.

On the other hand, Will Baude makes a little less of the outsider argument. Wondering why a different perspective would be valuable on the Court, he writes:
[I]f one believes, as I had thought Senatory Cornyn and Matt did, that judges simply enforce the law handed down by the other branches of government, why on earth should the Court care what the consequences are of doing its job? Attention to consequences makes sense if one is a consequentialist, but are we all professing to be consequentialists now?

Which is all well and good, but such perspective can be valuable even if Miers is not a consequentialist, so long as other members of the Court remain consequentialists, or arguably could be considered as such, and especially when they're weighing in on a balancing test. I'm reminded of this by what may be the funniest part of a Supreme Court opinion I've read this semester. Considering whether or not a statutory fee cap on legal fees in certain Veteran's Administration claims (to $10, making this fundamentally a bar on hiring attorneys), Justice Stevens in his dissent writes:
In my opinion, the bureaucratic interest in minimizing the cost of administration is nothing but a red herring. . . . [T]here is no reason to believe that the agency's cost of administrion will be increased because a claimant is represented by counsel instead of appearing pro se. . . . [T]here is no reason to assume that lawyers would add confusion rather than clarity to the proceedings. . . . Only if it is assumed that the average lawyer is incompetent or unscrupulous can one rationally conclude that the efficiency of the agency's work would be undermined by allowing counsel to participate whever a veteran is willing to pay for his services.

Walters v. National Association of Radiation Services, 473 U.S. 305 (1985) (Stevens, J., dissenting).

Suffice it to say, having someone with significant experience outside or on the other side of a courtroom might be useful in such discussions.

Burning Down the Hundred Acre Woods

With any luck, this is one of those decisions that will be reversed after public outcry:

NOVELTY pig calendars and toys have been banned from a council office — in case they offend Muslim staff.

Workers in the benefits department at Dudley Council, West Midlands, were told to remove or cover up all pig-related items, including toys, porcelain figures, calendars and even a tissue box featuring Winnie the Pooh and Piglet.

Bosses acted after a Muslim complained about pig-shaped stress relievers delivered to the council in the run-up to the Islamic festival of Ramadan.


(from the Sun, not always the most unbiased of papers, indirectly via the Conspiracy)

More, including a good political cartoon, here.

I'd be very surprised if this particular rule stands, or is enforced for any length of time. If it is, it will be a very sad day when Good Saint Sensitivity has driven the dire threat of Piglet from out of England.

Of course, it wouldn't be the first sign that Albion is losing track of her identity a bit, even if it's recovering from the warm fuzziness of Blair's Cool Britannia. CNN International ran an article on prison wardens being rebuked for wearing charity pins with the Cross of St. George on them. I have no opinion on the report itself, as there may be good reasons why guards shouldn't wear these. But at the end of the article, Chris Doyle of the Council for the Advancement of Arab-British Understanding (whose website reads much as you'd expect) is quoted as saying:

Doyle added that it was now time for England to find a new flag and a patron saint who is "not associated with our bloody past and one we can all identify with."

That's right: in the name of tolerance, the British should put George on the dustheap of history, send Piglet off to the slaughterhouse, and quite possibly give a helping hand to the poor, downtrodden dragon, who after all has had that rotten old Georgie boy's lance in him for oh so long...

(language altered to clean it up a bit)

October 04, 2005

Clerics and Class Actions

Some former RPG-playing legal types should find this Order of the Stick piece funny. Others will just realize why there were no lawyers in The Lord of the Rings.

October 03, 2005

Surprisingly Unperturbed by Miers

Among conservative bloggers, at least, the nomination of Harriet Miers to the Supreme Court seems a bit of a damp squib. I won't rehash what I'm sure everyone's heard already--no paper trail, no record, why didn't he nominate a really conservative nominee, if Kos likes her how good can she be?--as I don't have much to add. But one part of the argument doesn't concern me particularly, and that's Ms. Miers' "inexperience."

Professor Volokh points out that Miers' career track is not historically exceptional, but merely unlike the ex-academics and ex-judges who are more common on the Court today. Going even further back, there have been several Supreme Court justices that did not go to law school.

But personally, I would have liked to see Bush put forward a candidate who was not a lawyer at all. I can't think of an example of this in U.S. history, but the idea itself is not particularly revolutionary. The Supreme Courts of other countries include those who have not been admitted to their bar. For instance, Justice Kazuko Yoko of the Japanese Supreme Court was a career civil servant and ambassador before she came to the bench. (Quite a remarkable woman, actually, the second to sit on the Japanese Supreme Court.) Given that Justices have to be approved by plebicite at the first lower house election after their appointment, the very least one can say is that she's done well enough not to be removed. (That's much fainter praise than deserved, but I won't bore with her qualifications. I merely mean to prove that it seems one can competently judge at the highest level of a legal system without a legal education or a life as an attorney.)

On the other hand, Justice Yokoo's background is a tidbit that invariably evokes surprise when mentioned around the law school, often on about the same level as announcing that I had been appointed as the first non-Catholic in the College of Cardinals. It shouldn't be. The law, after all, isn't some mystical source of authority that requires robes, wigs, and special arcane knowledge to fathom. In a very workaday fashion, many professionals will come into constant contact with administrative, contract, or tort law, statutory interpretation, and other matters legal. Over a long career, it's possible to build up a great store of actual, pragmatic expertise. That's not to say that anyone can do it, or that any administrator would make a great judge. The Bar, however, is just an easy way of ensuring to the public that anyone who has passed it knows a certain amount of knowledge, a form of consumer protection. It does not prove that anyone who has not passed the bar lacks the requisite knowledge.

Those of us who have steeped ourselves in the law too often feel there's something uniquely special about our education: that "thinking like a lawyer" is somehow so unique from non-legal thinking and ordinary logic that no one from outside our circle could pick up the torch. That's possible, I suppose, but my intuition is that in fact our legal education and experience--and our tendency to exclude those who don't have it--create an isolating feedback effect. That is to say, it's not that any given issue has to be complex, but rather that an issue handled by people who are steeped in a tradition of complexity and are comfortable handling issues in a given manner will inevitably become complex. Not only do the institutional players have the capacity to handle complexity, but it is inevitably to their advantage to do so.

Adding a non-lawyer to the Supreme Court doesn't mean nominating someone without experience, knowledge, skill or wisdom. Indeed, of the judicial virtues mentioned by Prof. Solum, none actually require a judge that has attended a law school or served as an attorney. On the other hand, the presence of a non-lawyer ensures a different perspective on the Court, and quite possibly promotes values that are not stressed by a lawyer-centered jurisprudence. (For example, important Court rulings carry not only a legal effect, but also influence the populace at large. A different kind of Justice might put more stress on writing that tells a tale directly to the public, rather than for the attention of legal commentators.)

Now, perhaps a non-lawyer is too radical a suggestion. I'm sure an openness to a non-lawyer as Justice puts me outside the mainstream. But whatever the case, it does explain why Ms. Miers' job history does not disturb me much.

October 01, 2005

Textualism and A Certain Misplaced Sympathy

The headline currently on the front page of the Greying Lady seems like a Scrappleface parody.

To More Inmates, Life Term Means Dying Behind Bars

To which many non-legal or non-NYT readers likely responded, "Well, yeah. What exactly does 'life' mean otherwise?"

The answer, of course, is that it doesn't mean 'life' at all, or at least, it didn't when I was born. So far, so unexciting: much of the truth-in-sentencing movement was based on the idea that a life-sentence should be a life sentence, and the truth-in-sentencing movement evolved because sentencing wasn't very truthful. The article is worth reading because of what it reveals about both law and the NYT.

You know how when you're a 1L everyone says you'll learn to "think like a lawyer"? Well, here's a judge who seems to have been stung by that very skill:

The judge, Michael F. Sapala, said he had not anticipated the extent to which the parole board "wouldn't simply change policies but, in fact, would ignore the law" in denying parole to Mr. Alexander. "If I wanted to make sure he stayed in prison for the rest of his life, I would have imposed" a sentence "like 80 to 150 years," the judge said.

The frustration of the judge is more understandable than I would have considered before starting law school. After all, he had expectations when he imposed the sentence, expectations based upon the then-current legal landscape. Who cares if "life in prison" may in some platonic sense mean that one goes to prison and dies there? "Life in prison with the possibility of parole" as a legal term then meant a prisoner would get parole or clemency, assuming a nose that was generally kept clean. The proper term, of course, would be "indefinite" sentencing. In theory, he's handing control of the sentence to a parole board, but with a certain understanding.

But I've not been in legal education long enough that I can't stop and wonder: why say life when that term has a meaning and carries with it the risk that the legal landscape shall shift? Whatever one wants to say about originalism, or textualism, or what have you, it does have this beauty: adopting a textualist attitude means you are much less likely to wake up twenty years after the fact objecting that "down" now means "up."

(The legal realist in me wonders: is the advantage of the term "life" that you can go before the audience that votes you into power and talk about giving "life" sentences, and yet know that your actions don't carry that consequence? Was "life" instead of "indefinite" sentencing the common term as a matter of historical practice, or was this useful in running for public office?. In the latter case, there is a certain irony to the consumers of the term eventually demanding truth in advertising.)

I feel for the judicial actors, though. The dark humor of the article comes from the extent to which the NYT bends over to make itself look like a conservative's parody of a liberal newspaper.

Consider the case of Jackie Lee Thompson, the central remorseful convict of the piece. What would you expect from a NYT article trying to make a convict sympathetic? A horrible time in foster care? A mother who died young, a childhood of being abused by playground bullies? A speech impediment? You'd make sure he was a good convict who used his time in jail to get an education, and pepper him with adjectives like "soft-spoken." In Thompson, the NYT finds a victim of the prison system with all that in spades.

The paper rather downplays the fact that this man, at the age of 15, shot his lover with three times using his friend's shotgun, slaying her for lying to him about a pregnancy. (She wasn't, said she was.) Since she had the temerity to refuse to die just then, he and two of his friends dragged a bleeding girl to a freezing creek and dumped her in it with the hopes she'd drown gracefully. Either physics or a desire to cling to life--the NYT isn't specific about her struggle, it being irrelevant to their story--kept her above water. Not to be deterred, the ever-resourceful young men (Thompson had two accomplices to kill a girl) pushed her underneath the ice.

Ever stuck your hand in the late winter water of a Pennsylvania creek? I haven't, but Michigan isn't that much colder than Pennsylvania around New Years, and my foot's slipped through the ice there once or twice. The water sticks you with knives and needles for as long as it can before you go numb, and that's through a strong pair of boots. I cannot imagine and don't want to know what that feels like on my face. Or on an open wound.

But in New York Times-land, such a murder becomes a cross between clinical procedure and a whimsical Boy's Own tale gone bad:

He used his friend Dennis Ellis's pump-action shotgun, Mr. Thompson said, and he shot Charlotte at close range three times. He tried to explain the repeated shots.

"You have to pump each time," he said. "It is true. Dennis and I, we always had a habit of going out in the woods with a gun and see how fast we could empty a gun. That's where the second and third shots come from."

Charlotte's wounds were not immediately fatal. The youths had the idea, Mr. Thompson said, of putting her in a nearby creek. But she bobbed to the surface. So the three teenagers slid her body under the ice that covered a part of the creek, drowning her.

"You should have seen how stupid we was," Mr. Thompson said. "I wish I could change that."


Yeah, me too.

Such limp prose makes me wonder what kind of planet NYT writers like Adam Liptak live on. "The youths had the idea"? Youths have an idea that today would be a good day to skip class. "The youths had an idea" is a phrase suited for one of those bad middle-school reading assignments like The Pigman, words reeking of the innocent and naive. When three boys decide that they've got no more mercy for a girl, and can think of no cleaner way of killing her than drowning her in icewater, there's a little more evil than can easily be held in the phrase "the youths had an idea."

The entire article contains much of the same. Ballast for the poor convict is in this case provided by one paragraph describing how horrible Mr. Thompson's young life was for every paragraph delivered in bland and tepid prose concerning the murder of a young woman. This life is horrible indeed, but provides no reasonable explanation of why one should excuse someone who ended his lover's life in pain and terror.

There are good and practical arguments as to why we should consider paroling more lifers. Many of these are solid economic arguments involving recidivism rates, costs of incarceration, and the usefulness of attempting to rehabilitate someone who is never going to be released. There are good legal and policy arguments for doing so: is it just to keep punishing someone now if the expectation when they were sentenced--whatever the words--didn't match the terms used? A serious person can make credible arguments about that, however much one might disagree.

But the New York Times has taken an obvious horror and made it bloodless, let a technicolor tragedy bleed to sepias because of the simple passage of time. And it's not just the NYT. In the almost endless swirl of symposia, law review articles, conferences, debates, and even blog postings that advocate sentencing reform, there's a sense of the New York Times that is too often present. The standard process, if one is to mention an actual crime at all, is pretty well set: make the crime as statistical as possible, explain every mitigation that was overlooked, and then combine an economic analysis with an explanation of why these sentences violate some legal norm.[1]

This may be fine for academia, but I can't see this as a sensible strategy if one really wants to advocate sentencing reform outside of the ivy tower. To appeal to a public that has elected the prosecutors and put in place many of the judges, to those who have demanded that we be 'tough on crime,' there's a condition: first deal honestly with the issue of condemnation. Don't try to play on the listener's heartstrings with Mr. Thompson unless your opening movement tells a passionate tale of betrayal, slow suffering and skin turning blue in icy waters. The NYT focuses on the criminal's understanding and regret at what he's done, but that misses where the listener's interest really lies. Why does he care whether a man who's been punished for 35 years understands what he did? The real issue is whether the person proposing reform understands, and if the reader can trust that person.

Establish that you understand the wrongness, that you don't excuse it, and that you still propose parole, and I'm pretty certain others will follow.

[1]: Another classic of the genre is the "unfair three strikes" paragraph. The example from this NYT piece:

But some critics of life sentences say they are overused, pointing to people like Jerald Sanders, who is serving a life sentence in Alabama. He was a small-time burglar and had never been convicted of a violent crime. Under the state's habitual offender law, he was sent away after stealing a $60 bicycle.

A "small-time burglar." That's a person who breaks into people's homes, who steals things that may or may not be insured--he doesn't care--and may or may not have value beyond what he'll pawn them for. After he's gone, the person whose home has been burgled may never feel safe again. In areas frequently burgled, shopkeepers spend more on security than serving customers, and families are wary of buying nice things for their children--say, a $60 bicycle--that will just end up being sold to a fence.

That's not to say that there are not pragmatic reasons for Mr. Sanders to be paroled. But that paragraph makes it sound as if the greatest injustice in the case is that a small-time burglar--almost a small businessman, a quick-thinking entrepreneur--has been put away for life. After all, he was only taking "$60 bicycles," and who could care about those?

The old saying about a liberal being a conservative who's never been mugged...

Giving The Devil His Due

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