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November 30, 2005

Clowns to the Left of Me, Jokers to the Right. Columbia Greets Ashcroft

[EXT. LERNER HALL, ~18:00]

For your Three Years of Hell coverage of the Ashcroft protest and subsequent speech, we turn now to the TYOH roving reporter on the scene, Mr. iGor the iGuy. iGor?

Thank you, Tony. It's a warm and rainless night here on Broadway. We'd been worried that yesterday's downpours might continue, dampening the enthusiasm of the anti-Ashcroft lobby. Luckily, the weather's been more merciful than a reprieve from Guantanamo. Indeed, it's fine weather for a protest, and these folks seem to be making the most of it.

What exactly are the protestors up to, iGor?

Well, as you can see, most of the protestors have been cordoned off by police barriers. A little earlier a policeman came over and tried to remove us from the boundary of the protest. I'm not sure if he was convinced of our journalistic credentials, but the main attraction seems to be a guy with a megaphone, so it didn't really hurt to back up a few feet. And there's all kinds of people outside the barriers in a variety of outrageous get up. For instance, there's a woman in Guantanamo Orange, which I get, and a guy walking around on stilts. I'm not sure what the latter is supposed to be symbolic of, precisely, but he's certainly visible. There's a lot of signs.

And what they're saying?

I've just gotten here, Tony, and I'm afraid the crew will have to leave to go inside the auditorium pretty soon, so we're going to miss the heart of the protest. Nevertheless, so far it seems fairly sedate. I have to admit to feeling let down by the posters. "I WASN'T USING THOSE CIVIL RIGHTS ANYWAY" or "DETAIN ASHCROFT," all things you'd find on a CafePress t-shirt.

When we arrived, someone was leading a chant . . . . it seemed like the old chestnut "THE PEOPLE UNITED SHALL NEVER BE DIVIDED." Nevertheless, some of the people were out here cordoned off by blue sawhorses and some of the people were standing in line over in Lerner Hall waiting to get in. To his credit, the speaker on the podium was advising his crowd to remain civil and remain respectful. He finished by saying something to the effect that while Mr. Ashcroft has the right to speak here, he'll never get the respect of the guy on the soapbox with the bullhorn.

Any reaction from the Ashcroft crowd?

I didn't get a chance to question Mr. Ashcroft about it. I can only imagine he's crushed not to have the respect of folks with blowhorns addressing crowds with signs that say he's a terrorist.

Earlier today we'd been hearing stories about protestors making a human wall around Lerner and various other obstructive ideas. Any sign of that?

Well, no, not really. Actually, the line of people trying to get into Roone Auditorium is far more impressive than the number of protestors outside. The protest may get a bit bigger while we're trying to get seats, Tony, but it looks like a few hundred people at most. And while some protest sympathisers are hopefully trying to get inside, the security rules attached to the invitation are quite strict: no audio recorders, no cameras, no bag larger than a purse, and no posters.

Thank you, iGor. We look forward to your reaction to the speech.

[INSIDE AUDITORIUM, AFTER SPEECH]

So, iGor, you've heard the big speech, what was it like?

I was pretty skeptical about Ashcroft coming into this, and I have to say I came out impressed. There wasn't a huge display of intellectual force on either side of the stage,[1] but Ashcroft was charming, and chatted about crime, terrorism, faith, and public service, and cracked a lot of jokes. Here's a guy who'd obviously faced a hostile crowd once or twice before. I think the high point for me was a bit of tete-a-tete . . . . I have to go from memory since I didn't have a recorder, but it went something like this:

GEN. ASHCROFT: [telling "old governors never die" jokes] And of course, old prosecutors never die, they just lose their...

HECKLER: Bill of Rights!

ASHCROFT: [folksy] Well, I haven't lost my Bill of Rights, and from the sound of you, young lady, you don't seem to have either.


There was a lot more of this kind of thing. I think it's fair to say that if a major speaker who's used to one-line zingers comes to Columbia again, the peanut gallery is going to have to get better ammunition. It was strictly amateur hour from the back bench, Tony.

So a solid conservative victory?

I'm going to have to say no there. I've got no neck, but if my body weren't made of silicone I'd be shaking my head in shame right about now. Ashcroft came off pretty well, but there seemed to be a battle between Columbia's left and right wings to see who could make themselves look dumber, and it's impossible to tell who won. Close victory on points, is all I can say.

Too much hooting from the audience?

Too much from the audience, too much from the stage. The Columbia Conservatives opened with a fifteen minute whine about how they're picked upon. Look, I know that there's more video games in the undergraduate lounge than there are Bush-voting faculty in the undergraduate campus, but this really wasn't the time to mention the political leanings of the professorate. The moderator seemed to be doing his level best to live up to the worst liberal parody of what a campus conservative could be. And the introduction of Ashcroft...

[pause] iGor?

Sorry. I was trying to see if this rubberized body could shudder. Endless repetitions of his patriotism, the difficulty of his job, the trying times. . . . Look, the man was an attorney general, a senator, and a governor. His resume spoke for him even before he opened his mouth. The moderator didn't need to put a dress on a pig and call it Monique.

That bad?

Worse. The whole thing was subtle as a chainsaw through a screen door. The conservatives deserved credit for reading out questions from groups like the ACLU, but they didn't need to provide such emphasis. Gloating merrily didn't make their enemies any more wrong, but it did make the hosts less gracious. And it didn't stop there. Interruptions of the speaker to make comparisons to Michael Moore. Complaints--presumably humorous--by the moderator that Gen. Ashcroft was stealing his limelight. Completely unnecessary demonizations of the anti-Ashcroft lobby, which was by that point making enough of a fool of itself waving about a big yellow sign they'd smuggled in. Really unnecessary.

What was the crowd reaction?

On my way out, I heard one of the more moderate audience members mutter with what I'd consider a wry chuckle: "This kind of event really could raise the level of civil discourse here at Columbia, if the ceiling had fallen in during the middle of the Q&A."

And your summary?

Well, they say that Mr. Ashcroft used to be in a barbershop quartet. Maybe in another venue, he could have brought down the house, but in this case he was really let down by the opening act.

[1]: UPDATE As Ex Post put it, "He made a great case for his policies, though I'm sure there is plenty critical to be said of his rather 'campaign speech' platitudes."

It's Fun To Be A Columbia Conservative

So the big Ashcroft confab is going to be tonight. I don't think I'll be able to cover the protests, but I'm going to be sending an official Three Years of Hell Roving Reporter to give you all a glimpse of what's happening.

A few minutes ago, one of the protest groups resent their email instructing folks, "If you are against TORTURE, BIGOTRY, SEXISM, CLASSISM, AMERICAN THEOCRACY, and just plain mean people who can't sing [] JOIN the Campus–Wide 'Ashcroft Welcoming Committee.'" I'll be sure to send my roving reporter to interview, then, some folks who didn't show up and thus may be in favor of torture, bigotry, sexism, and really bad karaoke.[1]

In the meantime, my congratulations to Mr. Adam Pulver, whose letter-to-the-editor reprinted at the Columbia ACS blog actually goes beyond my ability at parody. Seriously, it already reads like a conservative doing a drunken rendition of "whiny liberal" in some bizarre party game:

For the past thirty years, the American conservative movement has used college campuses to develop a corps of ideologues, using its wealth to fund speakers and programs. These students become the party faithful, spewing rhetoric, challenging "liberal bias," and raising money while claiming to be "nonpartisan."

This is why it's more fun to be a conservative in law school. If you're a liberal, you just raise funds to bring in a speaker. Do the same thing as a conservative, and everyone thinks you're taking orders directly from Count Fosco.

[1]: A (quite liberal) friend of mine points out that those who can't sing are a grievously underrepresented group.

November 27, 2005

$22.32 cents from partaking in global protest

Friday was Buy Nothing Day, when people of good moral fibre are urged to abstain from participating in global consumerism, to meditate on the environmental effects of capitalist hegemony, or to collectivize with the culture jammers to put the third world developing countries less-developed countries on the global agenda.[1] Mostly, it seems, one does this by avoiding the after Thanksgiving Day sales.

Buy Nothing Day was a close-run thing for me. I've done my Christmas shopping early through Amazon, and as you can see from the reappearance of Exam Watch, I'm swamped with revision. Only a quick restaurant dinner (appetizer, really), a coffee and a tea, some Naked Juice, and an apple from Hamilton's Deli saved my reputation for capitalist iniquity. [2]

Fortunately, others were out there making sure that the cats stay fat, the pigs stay capitalist, and the rest of the animal farm is well-stocked with Uncle Ronald's Own Culture Jammer Preserves (™). For instance, Prof. Katherine Litvak gives details of the relationship between arbitrage markets and "doorbuster" special offers, as well as a rather clever argument in favor of enforcement of penalty clauses in consumer contracts. As she points out, though, those undertaking the Arbitrage of the Sales don't seem to be making a lot of money at it.

[1]: Joke shamelessly stolen from Yes, Minister, which come to think of it might have been a good thing to buy on Buy Nothing Day.

[2]: After writing this, I realized that it's not quite true. I forgot that I exhausted my coffee supplies while I was studying on Friday and made a quick pop into Starbucks to buy some beans. They're not the best, but they were passable and I was in a hurry. Anyway, I spent ten or so dollars at one of the symbols of global capitalism on Friday, so I haven't lost my place as one of the first against the wall when the revolution (finally) comes. Phew!

Quick Update: Also, Carrie Lukas at National Review gives thanks for WalMart. She has my hearty agreement.

November 26, 2005

Popcorn! or How Ashcroft and the ACS provide good reality TV show entertainment

For sheer entertainment value, Ashcroft's visit is paying off in spades droves before he even gets here. Just watching the lathered hysteria of the pre-arrival protest preparations is worth the price of admission. Speaking of such prices, it's worth looking at the Columbia Chapter of the ACS blog:

Next week, former US Attorney General John Ashcroft is speaking here at Columbia. Ashcroft — the guest of the Columbia Federalist Society, College Conservative Club, College Republicans and Young Americans Foundation — is delivering a speech entitled, "Law, Liberty and Security."

Naturally, questions at the event will be pre-screened, so send yours in to questionsforashcroft@gmail.com.

In case you can't pony up $275 for the student rate(!) to attend the event, here's an Ashcroft gem for you to enjoy[. . . .]


(emphasis added, and you can go to the ACS blog to see the clip)

Cash-strapped as I am, I immediately worried that those pernicious folks at FedSoc were going to hand me my event ticket and hit me for a $275 bill they'd not advertised. Heart aflutter with worries of impending fiscal disaster, I pulled up the general message that went to the whole student body.

The invite lists two events: the speech (no fee mentioned) and a drinks-before dinner-after reception which has rates going from the aforementioned $275 to $1,000. (It also includes front-row seats at the speech itself.) As I'd not signed up for the personal experience, I remain free to spend my money on study aids for bankruptcy rather than filing for it.*

Perhaps I'm being unfair, but take a look at the CACS blog, and then consider what you know about the invite. Don't you think it was a wee bit deceptive to mention the existence of only the speech but the price of the dinner?

UPDATE: Now how's this for an Orwellian correction! The CACS Blog has not only changed the post,** but its update seems curiously stubborn. What can one make of this?

The entry fee and/or attendee qualifications for the speech are not specified in the Federalist Society email.

Few groups hosting a free event bother to "specify" that there is no entry fee. Nor has an entry fee been mentioned on any of the several emails, the innumerable posters, or the weekly event list sent around Columbia. It seems a safe assumption that it doesn't exist: why not just say that, instead of suggesting that there's some nebulous but unknown charge?

And what is this dark muttering about attendee qualifications? I'd not be surprised to find the hosting societies favor their members in choosing who attends, but if one wants to suggest there are "qualifications" that aren't being specified, why not make that accusation instead of hinting that the FedSoc hasn't stopped beating its wife yet?

There is something about Ashcroft. Perhaps together with Rumsfeld and Bush he forms some kind of right-wing Dirae, whose mere presence maddens otherwise sober men. This treatment of another student group's guest is singular in my experience.


*My understanding is that such dinners aren't uncommon among the political set, and that such ACS darlings as Bill Clinton have been known to have the odd $500/plate rubber-chicken dinner or two. For that matter, I once paid upwards of $200 for entrance into a charity poker game with a few of my professors. The organizers of this nefarious evening were none other than Columbia's Public Interest Law Foundation.

Whatever. Perhaps I'm wrong. Maybe there are no fundraising dinners in the land of progressives and public-interest faithful, and reports to the contrary are just viscious rumors.

**It's notable that they don't follow standard blog practice of leaving the incorrect text in strike tags, either. A later reader will simply wonder what the fuss was about. Attention Will Baude!

November 23, 2005

Federalist Society Student Symposium 2006 to be held at Columbia, February 2006

Remember my criticism of conservative marketing last week, in which I complained that all too often conservative advertisements consist of little more than images of stuffy white males? Well, the website for the 25th Annual Federalist Society Student Symposium is now online and accepting registrations. The move away from portraits of the Founding Fathers is not entirely coincidental.

Sign up. It should be one heck of a party.

November 22, 2005

Bork . . . was . . . right?

I never believed PG when she used to tell me about Robert Bork's claims of escort agencies operating on Manhattan's public access television:

One evening at a hotel in New York I flipped around the television channels. Suddenly there on the public access channel was a voluptuous young woman, naked, her body oiled, writhing on the floor while fondling herself intimately. Meanwhile, a man's voice and a print on the screen informed the viewer of the telephone number and limousine service that would acquaint him with young women of similar charms and proclivities. I watched for some time -- riveted by the sociological significance of it all. Shortly after that, men only slightly less nude advertised homosexual prostitutes.

Certainly Bork had just come home, battle-scarred from a few too many fine, strong Manhattans with a few too many fine, liberal Manhattanites. He was confused. You can't put nudity on American public television! It's a point of pride among some of my British friends that they live in the land of the free, or at least the land free enough to show the best of Shannon Tweed after the watershed.

Little did my English buddies know.

Half-reading my Admin Law while my girlfriend flipped channels on a study break, I was roused from my stupor by her call of, "What the ----?" And there on screen was . . . well, I don't really have the words. Someone had coupled images of women in varying stages of undress with seemingly random stock footage and whatever had been on their iPod at the time. Neither image was shown clearly, but rather both had been made semi-transparent, such that an old couple on a canoe were floating down a river through the ghost of a stripper's g-string. A topless model wiggling her tush had been superimposed on a waddling parrot as Shania Twain's "You're Still the One" murmured in the background. A lesbian scene between two blondes, some shots of the New York skyline, and (my personal drop-dead last pick to include in a softcore act) the Backstreet Boys' "Quit Playing Games With My Heart," was the climax of the program. Each of these . . . "music videos"? . . . was placed between a few minutes of the announcer quizzing horror movie actors and producers (including someone from Buffy), or strange and improbable bands dressed as undead Elvis impersonators.

I'll admit, if I hadn't been completely sober I'd suspect that I'd been drinking.

The only telephone numbers flashed on the screen accompanied requests for more models, not an escort invitation. But I'm willing to give Bork a much greater benefit of the doubt now. Why does Manhattan bother to run such a network, and is there any excuse for The Neal Alpert TV Show?

November 21, 2005

Well, Maybe I'll Bring Popcorn

The Big Brotherish posters aside, I'm quite in favor of John Ashcroft's visit. Controversial speakers who come to Columbia give us a lot to think about. The Waldron/Yoo torture debate held at the law school last year, for instance, may have raised some passions, but it remains one of the most informative and entertaining of my law school experiences.

Of course, this is Columbia, and we wouldn't be an elite Ivy League university without students wanting to show that they have both an unalienable right to free speech and a complete lack of self-restraint. The Columbia Federalist Society is hosting, so it's no surprise that the formal etiquette is impeccable. In an email today, they invited the student body to come up with questions to ask Ashcroft. But before that email arrived, this bit of hate mail popped into my inbox, forwarded by the ever-obliging student services mailing list:

JOHN ASHCROFT COMING TO COLUMBIA

NOVEMBER 30, 2005

If you are against TORTURE, BIGOTRY, SEXISM, CLASISM [sic], AMERICAN THEOCRACY*, and just plain mean people who can’t sing-

JOIN the Campus –Wide “Ashcroft Welcoming Committee”

Meetings are scheduled for:

Monday, 11/21- 10:00 PM in Lerner 555 – BRING POSTER IDEAS- quotes, stats, the works
Monday, 11/28- 10:00 PM in Lerner 555
Tuesday, 11/29- 6:00 PM in Lerner 501


This, of course, is what constitutes a "welcome" at the Ivy League. It's quite possible that the protestors are spending more time getting ready to mock Mr. Ashcroft than his hosts have given to marketing him. Considering the accusations in the email, I sincerely hope that they can hold the tune of "Kumbaya," or whatever the kids are chanting in unison these days. Wasn't loud and lousy singing outside Noriega's compound considered a form of torture?

Let me make it clear: there's nothing wrong with objecting to Mr. Ashcroft's ideas, and I've hardly considered him the most persuasive Republican spokesman. Nonetheless, he is the guest of three student societies sanctioned by the university to which the emailer belongs. To send out an email like the one above shows a stunning lack of class, tact, and comity with one's fellow students. To protest a guest of one's university not only suggests that one has no respect for one's fellows, but that one feels no duty to actually welcome a guest of the university to which one belongs. Sadly, such behavior doesn't reflect badly upon Mr. Ashcroft but upon us.

[1]: What if you happen to be against the overuse of ALL CAPS SHOUTING IN EMAILS?

November 17, 2005

Next on Fox: 24 Hour Coverage of P. Diddy v. the Federal Electoral Commission

From a rather bizarre and pointless article on National Review, in which it is revealed that The National Law and Policy Center filed a complaint on November 3 claiming that P. Diddy/Puff Daddy/Sean "Puffy" Combs/The Stay-Puft Marshmallow Man violated the Federal Election Campaign Act and the Internal Revenue Code with his "Vote or Die" campaign. The complaint is here.

Lopez: "Vote or Die" is so..2004. Why go after it now?

Flaherty: We were aware of the violations when they occurred. But frankly, my staff has better things to do than worry about Diddy. The complaint was filed after the NAACP Legal Defense Fund decided to give Diddy a "special award" on November 3 for the Vote or Die! campaign. I want the underscore how badly the civil-rights movement has lost its way.

Mr. Flaherty, let's hope your staff still has better things to do.

Lopez: Do you believe this was part of some kind of coordinated attempt to defeat Bush? Dare I say it? A Vast Left-Wing Conspiracy, perhaps?

Flaherty: I believe Diddy's goal was to call attention to himself, or perhaps his clothing line. The campaign itself was largely a joke. The republic was never in danger.


That's a relief, then. Dad, you can put away the army rifle, Democracy is safe from the likes of Leonardo DiCaprio (for now).

Lopez: You're not just trying to make the National Legal and Policy Center look cooler by appearing in wire stories with the artist formerly known as Puff Daddy?

Flaherty:I don't consider Diddy cool. Even when he was an artist, he would sample someone else's hit, and then try to make it his own.


He also never had much more to say than, "The Notorious B.I.G., great gansta that he was, died like a gangsta. He got shot. This makes Puffy saaaaaad." He just said it to a beat. But whatever I think of The Puff Man's lack of creative direction, filing FEC complaints against him goes beyond gilding the lily. Is there a phrase for trying to add stink to a dead fish?

Lopez: The bigger question seems to me: Is anyone on record as having died because they did not vote? Isn't this the kind of false advertising in politics we could all do without? What would Tocqueville think?

Flaherty: The Vote or Die t-shirts cost $30 each. They were retailed at 59 clothing and department stores in 21 states and D.C. We have asked the FEC to examine whether this wasn't just a scheme to sell t-shirts, or to generally call attention to Diddy's clothing endeavor.


I channelled Alexis de Tocqueville this evening. (Incidentally, the great man informed me that he now goes by the moniker "The Nefarious Lex D. T.") After I explained the complaint to him, he thought he needed a strong beer and a whiskey chaser.

NLPC Newsflash: celebrities seek self-promotion. Just as lawyers sell lawyering and plumbers sell plumbing, celebrities sell celebre. If the PowerPuff Boy weren't putting himself in the public eye and trying to shift shirts, he wouldn't be doing his job.

Now, I'll give NLPC this much. It's possible Puffy broke some of our notoriously complex election laws. But we won the election, and if the NAACP Legal Defense Fund wants to give him an award, let's just let them, OK? Mr. Flaherty, if Sean Puffy Combs must spend one evening eating rubber chicken and picking up Teddy "Mack" Shaw's* bling-bling,** it's one more evening he's not doing a live show on some channel we might otherwise want to watch. Why would you deprive us of such peace?

*Theodore M. Shaw is,of course, both President of the NAACP Legal Defense Fund and a Columbia alum, which means he might answer the most pertinent question regarding this entire mess: what did the award look like? Was it going to look good on the Puffmeister's mantle, next to that preposterous golden spaceman from MTV?

**This entire post is proof that I probably shouldn't stray so far from my normal patois.

Lithwick, Meet Google and Technorati. Google and Technorati, Be Nice to Ms. Lithwick. or Why Slate's Columnists Should Learn To Use A Bloody Search Engine

One of the many reasons I miss the Curmudgeonly Clerk: his habit of giving Dahlia Lithwick the pummelling she deserves for the sloppy left-wing drivel that passes for a "jurisprudence" column at Slate. Today, under the provocative headline Bring It On, the Doyenne of Dunce seems to having bizarre auditory hallucinations. In her madness, the roar of thunder all around her makes no more noise than a light spring breeze:

Or listen instead to the near-deafening silence from the columnists, advocates, and politicians who only weeks ago begged the president to ditch Harriet Miers for a candidate who would boldly and lucidly articulate the arguments against liberal judicial activism, "legislating from the bench," and the results-oriented judging that brought us decisions like Roe.

Much follows about a dearth of commentators who want to discuss--and want Judge Alito to discuss--jurisprudence and abortion.

Ms. Lithwick, it's possible that the near-deafening silence you hear has nothing to do with reality, and everything to do with the fingers you've got stuck in your ears. You show no sign of a penny's worth of research, and as such you should refund Slate whatever pittance they gave you for that misery of a column. I mean, you'd be nutty even to ignore the conversations going on in the blogosphere, but you missed Hugh Hewitt, for pity's sake! If your Silence of the Elephants includes the voice of a major conservative commentator, who do we need to get for you to notice? Should we re-dub the Mouth of Sauron? Perhaps request a papal emmissary be sent to you? Commission sky-writing?

(Readers are welcome to leave their own suggestions as to how Ms. Lithwick's attention might be garnered in the comments. Keep it clean.)

Fortunately, even with the Clerk's retirement, folks like Will Baude will do the five minutes of research necessary to prove the old adage about those who will not see. Even Mr. Baude, however, cannot explain how columns this bad keep being published. (One would have thought an editor, before publishing a piece grousing about a lack of controversy, would make a quick check to make certain there was indeed silence on the issue.)

November 16, 2005

ANGLOPHILE BLOOD DISCRIMINATION

I didn't realize I was a victim of discrimination until Outlaws (the CLS LGBT identity group) sent the following out over the Students Events mailing list today:

SUBJECT: BLOOD DISCRIMINATION

WE HOPE YOU GAVE BLOOD…

because we couldn't.

After Monday's blood drive, several students approached Outlaws members to address their surprise about the exclusion of some members of our community from this activity. For 20 years, the Food and Drug Administration (FDA), which regulates the nation's blood supply, has maintained a ban on blood donations from any "male who has had sexual contact with another male, even once, since 1977." This discriminatory policy is unnecessary and outdated and worsens the current blood shortage at donation centers around the country. The policy represents an irrebuttable presumption of unsafe sexual practice and HIV or other infection by gay men. It is a simple-minded policy that ignores the realities of sexual practice among most gay people and even heterosexuals. We understand and appreciate the health concerns which some claim underlie the policy; however, even health experts question the validity of the ban.

To our friends at the Blood Drive table, we hope this explains why we passed you by. To all others, we support your past blood donations and encourage you to give in the future. We also hope that you will join us in noticing and resisting illogical discrimination wherever it is found.

For more information, we encourage you to visit the following website:


http://www.thebody.com/gmhc/issues/novdec00/blood.html

Columbia Outlaws


Cry me a river, boys.

I went to college in the United Kingdom between 1980 and 1996, so I can't donate blood either. I couldn't donate blood even if I swore in that blood and on my eyes that I was a vegetarian whose diet consisted solely of home-grown organic rutabagas. The evidence that CJD could be spread through the blood supply is nowhere near as strong as evidence regarding transmission of HIV through blood, but it's still too much for the FDA Red Cross. Yet I'd always suspected that my inability get my arm stuck constituted mere risk aversion. I never thought it was an "irrebutable presumption" about my diet so much as the idea that the Red Cross isn't a court, but an organization that needs to get as much blood as possible at the lowest risk and the lowest price. It doesn't make sense to allow a member of a group above a certain risk to "rebut" the presumption. Rebuttal, after all, is something that a lawyer does with a brief, not a nurse with a needle.

By these standards, the FDA Red Cross isn't merely unfairly judging anglophiles. Even if you are incredibly careful about choosing your tattoo parlor and go only to a practitioner with impeccable standards, you're out unless you got inked in a state that regulates your artist. What an irrebuttable presumption against Illustrated Americans! Ditto for those who go and live in malarial countries, irrespective of the frequency that they've taken anti-malarials and made every reasonable precaution. They're just dirty, I guess.

Of course, the truth is that the Red Cross FDA makes rules based upon an individual's relation to a risk group, a decision based upon cost, efficiency, and in no small part upon our torts system. (Imagine the lawsuits if the Red Cross FDA dropped this rule and, contrary to the implication from the Outlaws, it turned out that the decision did increase the risk of infection, and indeed resulted in some transmissions!) It may be that they are too risk averse, and that the standards should not be so strict. But no sensible epidemiologist is going to say that gay men are a lower risk group than many others who are excluded.

Even more annoying: the missive isn't just badly reasoned, it's spam. If Outlaws wants to put forth their policy viewpoints, I've got no real problem with it: let them start a blog. (Ask Chris, I'll host it.) But if they're going to moan about something over an events-announcement mailing list to which members cannot unsubscribe, couldn't they at least bother to organize an event for us?

(UPDATE (11/20): As helpfully mentioned in the comments, the rule is an FDA regulation followed by the Red Cross, not one of its own policies. I've changed the text to make this clear. The lawsuit point still holds, of course: if the FDA dropped the rule and the Red Cross did not maintain the policy, a tort action against it for any subsequent infections is to say the least not unthinkable.

The important point remains: there is no risk analysis that suggests that the average person who lived three months in England in the early 90s is a greater risk to the blood supply than someone who has had homosexual contact. The FDA might be more risk averse than it should be, true, in which case the Outlaws are finding common cause with Newt Gingrich's claims back during the Republican revolution of 94. But to claim that this is merely an anti-homosexual ordinance is to claim that homosexuals should be exempt from risk analysis. I'd prefer that the Outlaws not play politics with the blood supply.)

Scalia, the Rules Lawyer

So I've heard some of my readers saying, "Is Three Years of Hell still a law school blog? Isn't Mr. Rickey ever going to talk about, well, law and law school?"

I have to admit, 3L year has become a kind of time-biding exercise between the clerkship application process and the joyous day when I get to stop racking up debt and restart my career. But every so often events converge such that I want to write about something from class. For instance, in today's Admin Law reading I ran across a rarity, a Scalia opinion where I think the good Justice has been drinking a little too deeply from the textualist well. He may be my favorite justice, but in MCI Telecommunications Corp. v. American Telephone and Telegraph Co., 512 U.S. 218 (1994), he gets a little bit wild when deciding that "modify" has particularly strict limitations:

The dispute between the parties turns on the meaning of the phrase "modify any requirement" in 203(b)(2). Petitioners argue that it gives the Commission authority to make even basic and fundamental changes in the scheme created by that section. We disagree. The word "modify" - like a number of other English words employing the root "mod-" (deriving from the Latin word for "measure"), such as "moderate," "modulate," "modest," and "modicum," - has a connotation of increment or limitation. Virtually every dictionary we are aware of says that "to modify" means to change moderately or in minor fashion. See, e.g., Random House Dictionary of the English Language 1236 (2d ed. 1987) ("to change somewhat the form or qualities of; alter partially; amend"); Webster's Third New International Dictionary 1452 (1976) ("to make minor changes in the form or structure of: alter without transforming"); 9 Oxford English Dictionary 952 (2d ed. 1989) ("[t]o make partial changes in; to change (an object) in respect of some of its qualities; to alter or vary without radical transformation"); Black's Law Dictionary 1004 (6th ed. 1990) ("[t]o alter; to change in incidental or subordinate features; enlarge; extend; amend; limit; reduce").

In support of their position, petitioners cite dictionary definitions contained in or derived from a single source, Webster's Third New International Dictionary 1452 (1976) ("Webster's Third"), which includes among the meanings of "modify," "to make a basic or important change in."


Now, Justice Stevens has some more relevant criticism of Justice Scalia's hyper-strict use of the term "modify," and it's a good one, but this does show the peril of using dictionaries as the primary source of "meaning" in textualism. Whatever else they are, dictionaries are exceedingly precise sculptors of words, so precise that they often overlook that no one actually obeys their usage.

For instance, take the term "modification" as it's used among computer obsessives, automotive fetishists, or anyone else who has a good time with a screwdriver, a free weekend, and a mass-manufactured item that they don't feel is quite... expressive enough. (Or for software modders, take the above, forget the screwdriver, and add someone else's code.) What do they do? They make "modifications." Examples of such "small" mods available without search much include:

  • A case modified to look like a V8 (and take a look at the whole site for other "minor" changes, like making the whole thing look like a spider)
  • In the same vein, a Pentium Pumpkin
  • For software modders, we can consider at the very least this article on games modifications for starters. None of these are particularly extreme, but I've modified bulletin boards to be game systems, project management software to make visual poetry, and other such nonsense. (OK, the last is a stretch.)
  • And of course, think of all the modifications that lovers of the classic VW Bug have dreamed up through the years. How about putting obscenely overpowered engines into them? Scuttling together the Baja Bug? Beetlemaniacs dream up countless such "modifications," and I defy even the stoutest-hearted textualist to go to an auto convention and tell those carefree-of-heart (and often burly-of-limb) greasemonkeys that they are "making minor changes in the form or function of" or "altering without transforming."

I actually agree with the policy achieved by Scalia's decision in the case. The outcome certainly matches my inclinations as to separation of powers. But to dress this up in textualist language, as if dictionaries were dusty tomes to which wizened old thaumaturges should retire in order summon meaning into a statute, feels a bit overblown. Actual usage of "modify" seems nothing near that limiting. Later in the opinion, Scalia supports his argument with overblown examples (e.g. "It might be good English to say that the French Revolution 'modified' the status of the French nobility--but only because there is a figure of speech called understatement. . . .") without recognizing that people will make quite major changes to things and call them a "mod."

Anyway, as I said, I was amused by this particular example simply because I find myself agreeing with most of Scalia's originalist approaches, but just couldn't find my way to agreement here. I wasn't going to write about it originally, but then I saw this cartoon before going to bed, and it brought the case to mind.

Bad Torts Pun

Not entirely funny, given the grim circumstances, but a tort lawyer in Woodbury, New York could brush off his textbook and work with an eggshell plaintiff.

November 13, 2005

Those free Westlaw and Lexis Print Jobs

I know that it's "free" to send print jobs to the Lexis and Westlaw printers because the two services are trying to (a) addict us and (b) get us into bad habits that will result in huge chargeable bills when we get out into practice. Nevertheless, I've just seen the worst abuse (presumably unintentional) of this service pretty much ever.

A printout of the Federal Rule of Evidence 501 (two pages) . . . with Keycite (390-some pages before the job was stopped).

Thank goodness it's "free."

November 10, 2005

Note to Conservatives: Drop Poli-Sci, Take Marketing

"Have you noticed that all of these posters of John Ashcroft have a very Big Brotherish feel to them?"

So said my girlfriend as she dropped by with cookies this evening. (Either she wants them out of her room so she won't eat them, or she's fattening me up for a winter stew. I'm not inclined to inquire too deeply.) I'd not noticed these posters, as I'd had a rather long day of trying to catch up with tax reading I should have finished in September. But as I was due for a break, I dropped the textbook and went out to the elevator to take a look. Sure enough, staring back at me from the elevator wall was a bilious green photostat of John Ashcroft. My first thought was actually, "Wow... he looks like he's been arrested, and that's a bad photocopy of a mug shot." It had that half-grin, half-grimace begging to say, "Do I get my phone call now?"

Nevertheless, it didn't take long for me to figure out where my girlfriend was getting the 1984 vibe. The poster wasn't just in the elevator. Apparently members of the Conservative Club, the Federalist Society, and Columbia Republicans had exuberantly plastered poor Ashcroft's mug throughout dormitory lobbies, all over the student unions, and even on a couple of bus stops . [1] The posters were almost universally hung at head-height, and at times it seemed like everywhere you turned, John Ashcroft was watching you. One could be forgiven for imagining a sign like this:

There's something very dispiriting about such associations. Given that a minority of Columbia students are inclined to look favorably upon the man who threw a drape over the bare bosom of Justice, a careful marketing of Ashcroft's appearance should be the order of the day. For instance, what is he speaking about? I'm assuming he's not going to show up and assert his patriotic zeal, and indeed I was unaware it had been called into question. (A quick Google search suggests I'm wrong about this, and indeed possibly a bit naive.) I presume that "American PATRIOT," given its non-standard capitalization, refers to his involvement with the PATRIOT Act. Nevertheless, perhaps this could be made clearer to those who aren't political junkies?

But those are questions of substance, and I am more disturbed by the lack of style. Certainly college conservatives can advertise their ideals without having to either evoke fusty dead white men or the kind of propaganda used by the villains in Orwellian dystopias. I know that the "kinder, gentler conservatism" of Bush the Elder and the "compassionate" variety of his son are out of fashion, but does that mean we must adopt pea-soup green and disconsolate expressions as our style of the day?

It seems a bad sign when one's advertisements are perilously close to what one's adversaries would use for parody.

[1]: This being Columbia, it goes without saying that between discovering these posters and going back to photograph them, two events separated by less than an hour, one of the posters had already been torn down.

(The last link to Students for an Orwellian Society added 11/10, as I'd forgotten to do it this morning.)

November 05, 2005

Remember, Remember

Given what day it is, I want to throw a link to V for Vendetta, the latest of Alan Moore's comics to be translated to screen. As I pointed out the last time I discussed this movie, it comes at a very interesting time indeed. On the one hand, the main character V is undoubtedly a terrorist; on the other hand, he's confronting an obviously fascist society. While even in the trailer you can see the great lengthsto which the costume designers have gone in order to create an association with fascism of the Nazi variety, the original work was less compromising: after being left mostly unscathed after a nuclear war, Britain descends into fascism quite well on its own. (Rumor has it that the alternate history plot of the movie involves a Nazi victory in WWII.)

As the Wachovski Bros. have their part in the film, there should be no shortage of action. I wonder, however, at the degree to which the screenwriters will go to make it "relevant" to current political events. Whoever is doing the marketing isn't being coy in the trailer: there's not entirely unsubtle associations available when the chief inspector asks, "If our government is responsible for the deaths of a hundred thousand people, do you really want to know?" That could actually be quite exciting to see in the film if V retains its moral ambiguity, and V himself is not rewritten to be a completely sympathetic character. Given the present trends in Hollywood, this is possible, even if I'm not keeping my hopes up. On the other hand, given the number of people willing to label the present Bush administration "fascist" (and the accusations of wanting to govern by fear, etc.), there remains the strong possibility that the film descends into a dreadful polemic.

In any event, pity they couldn't get it ready by the fifth of November.

November 01, 2005

Netflix: In Other Lawsuit Related News

Two good friends from England visited me this weekend, and over a (proper-sized) pint at a good Irish pub, we ended up discussing what this "law" thing I'm studying is. (I keep my old friends up to date on what's happening here, and they'd been reading about this 'clerkship' stuff, something called the MPRE, and a host of other strange and nonsensical terms.) The most difficult explanation--made slightly more difficult by the fact that we mentioned it during the second round of drinks--was probably the strange American tradition of the class action.

We Americans tend to take the class action lawsuit (and class action lawyers) for granted, but they don't exist in much of the rest of the world. The idea of randomly being involved in a lawsuit that you don't know anything about, when you didn't really have a complaint against the company to begin with, seems a bit... well, odd. And I have to admit, even after two years of legal training and quite a bit of study, I'm still a bit frustrated whenever I open up my mailbox or glance in my email to find that I've won the $2.57 American Legal Lottery.

Such a thing happened this evening whilst I was reading for Bankruptcy. I looked from my textbook to find that I'd been visited by the Netflix Fairy in the form of Frank Chavez v. Netflix, Inc.. What's the rumpus?

You are receiving this notice because you were a paid Netflix member before January 15, 2005. Under a proposed class action settlement, you may be eligible to receive a free benefit from Netflix.

A class action lawsuit entitled Chavez v. Netflix, Inc. was filed in San Francisco Superior Court (case number CGC-04-434884) on September 23, 2004. The lawsuit alleges that Netflix failed to provide "unlimited" DVD rentals and "one day delivery" as promised in its marketing materials. Netflix has denied any wrongdoing or liability. The parties have reached a settlement that they believe is in the best interests of the company and its subscribers.


I like Netflix. They provide a groovy little service through a reasonable web interface, and their impersonal online help means that I never had to deal with the legendarily rude and snobbish counter staff at Kim's Mediapolis when I want to get a film. If they've not provided me with "unlimited" movies, it's only because I don't turn them around often enough, and given that they send things through the U.S. Post, I'd not have expected "one-day delivery" if I'd ever seen it promised. I certainly can't remember that. (Update 1)

In short, I've got no beef with my Netflixy friends. And yet I'm going to be getting a bump up of one class to my membership for a month so they can mollify me for an injury of which I was wholly unaware. In the meantime, two San Francisco lawyers are going to be getting (up to) a fat $2.5 million paycheck from the settlement, and Mr. Chavez, the noble knight who brought this foolishness on my behalf, will get a $2,000 Don Quixote fee. Such settlement money won't go into, say, buying more movies for me to rent, making nifty software that will in turn be converted to niftier plugins for blogs, or indeed any improvement that will make my life demonstrably happier. If Netflix caused anything near a $2,000 injury to Mr. Chavez, I want to know what he was doing with those DVDs.

As a satisfied Netflix customer, Mr. Chavez and his legal eagles have stripped my pocket in my own name.

There are instructions in the settlement agreement for objecting. I don't think it's possible, and I certainly don't have the time to write out such a request, but wouldn't it be wonderful if we could write to Judge Mellon, tell him that we're generally satisfied with our service and not feeling all that put upon, really, and could he please reduce the fees paid out to the plaintiff's lawyers on our behalf?

(Actually, looking around the web on this issue, it appears that some folks aren't that happy at all about Netflix. The lawsuit seems to be over whether the company "throttled" their heavy users, i.e. didn't send them their movies fast enough. Me, I don't know where I'd find enough time to watch all the movies required to get "throttled." Perhaps someone is getting hurt here, but (a) the complaint is certainly not explained in the settlement letters, and (b) I'm certainly not one of those folks. Indeed, if the settlement has accomplished anything, it seems to be a transfer of benefits from moderate to heavy Netflix users, with $2.8 million sucked out by lawyers for the benefit of none and a $2,000 cherry on top for Mr. Chavez. With victories like this, thank God there aren't more battles to win.)

Update 1: Hmm. Looking online, there seems to have been ads promising one day delivery. Fair enough for that claim, then. For clarity, I should point out that I mentioned not being able to remember such a promise not because I didn't believe it had occurred (it is in the settlement, after all), but because I'd never made it a reason for subscribing.

Sony, Spyware, and Country Music

As a public service warning, I'd advise my readers to check Sony CDs before ripping music to their hard drive: it appears they may install some spyware-like software that's devilishly hard to eliminate. The previous link gives you the technical details, but the upshot of Mark Russinovich's analysis:

The entire experience was frustrating and irritating. Not only had Sony put software on my system that uses techniques commonly used by malware to mask its presence, the software is poorly written and provides no means for uninstall. Worse, most users that stumble across the cloaked files with a RKR scan will cripple their computer if they attempt the obvious step of deleting the cloaked files.

While I believe in the media industry’s right to use copy protection mechanisms to prevent illegal copying, I don’t think that we’ve found the right balance of fair use and copy protection, yet. This is a clear case of Sony taking DRM too far.


Note that "most users" will find the uninstall process Mark provides not merely irksome, but likely to be completely beyond their comprehension. Put it this way: in the time a normal user learned how to properly remove the hidden files without rendering their CD drive useless, they'd be better off backing up their data and reformatting the drive. Way to go, Sony! Instead putting your effort into actually building an iPod-beater, you've given the world one more reason to use iTunes.

(Link to how the mighty have fallen via Wizbang)

Giving The Devil His Due

Clowns to the Left of Me, Jokers to the Right. Columbia Greets Ashcroft (1)
Martin wrote: Good writeup - very interesting stu... [more]

It's Fun To Be A Columbia Conservative (0)
$22.32 cents from partaking in global protest (1)
Martin wrote: Ah, those of us in the know now ref... [more]

Popcorn! or How Ashcroft and the ACS provide good reality TV show entertainment (3)
A. Rickey wrote: Not that anyone would <a href="http... [more]

Federalist Society Student Symposium 2006 to be held at Columbia, February 2006 (0)
Bork . . . was . . . right? (2)
emily wrote: I think you've also discovered the ... [more]

Well, Maybe I'll Bring Popcorn (3)
Martin wrote: Doing my bit for people who protest... [more]

Next on Fox: 24 Hour Coverage of P. Diddy v. the Federal Electoral Commission (0)
Lithwick, Meet Google and Technorati. Google and Technorati, Be Nice to Ms. Lithwick. or Why Slate's Columnists Should Learn To Use A Bloody Search Engine (0)
ANGLOPHILE BLOOD DISCRIMINATION (1)
connie wrote: THis comment is to clarify that the... [more]

Scalia, the Rules Lawyer (3)
2L And Still Real wrote: I don't know what's worse, Scalia'... [more]

Bad Torts Pun (0)
Those free Westlaw and Lexis Print Jobs (0)
Note to Conservatives: Drop Poli-Sci, Take Marketing (2)
Sean wrote: "Do I get my phone call now?" crack... [more]

Remember, Remember (0)
Netflix: In Other Lawsuit Related News (14)
A. Rickey wrote: Thanks for pointing that out, Heidi... [more]

Sony, Spyware, and Country Music (5)
PG wrote: Apparently <a href="http://msnbc.ms... [more]

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