« November 2005 | Main | January 2006 »

December 24, 2005

How do you read TYoH?

First of all, Happy Holidays. If you're reading this today, you should probably be celebrating with friends and family instead. So ignore this until after you've drunk your fair share of eggnog. (I'm buying last-minute gifts online, so I have an excuse.)

Over the holidays I'm going to try to rebuild my templates a little bit. I managed about half a rebuild when I upgraded Moveable Type, but as you can see, the sidebar is a bit of a wreck. Additionally, things like Exam Watch are currently built in modules instead of templates, which means that every change requires a full-site rebuild.

Anyway, while I'm fooling around with the templates, I'm going to try to give you the option to read TYoH in two- or three-column mode. The three column templates would look much like a Typepad version of the present site. (See Leiter Reports or The Yin Blog for an example. Three-column mode won't have a fixed width: the window will be as wide as your browser.

Which brings me to how you read TYoH in the current two-column form. I've specifically built the site so that the readable area is about 750 pixels wide, a usability decision made because I knew some of my earliest readers have high-resolution monitors but read websites with the browser stretched to full-screen. For a lot of readers, I'd imagine this results in TYoH feeling narrow and cramped. When I'm redesigning, do any readers have any opinion on whether I should retain the fixed width?

December 21, 2005

Geek Media Meets Law Reviews

I'm glad to see that Jordan Hatcher's article Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law is getting some attention. (Hat tip to Prof. Solum.) It's precisely the thing I like to see in articles by students: someone writing about an issue that raises a narrow legal issue on a topic the author is obviously passionate about. Fansubs (Japanese animation translated and subtitled by fans) cast a different light on some of the central battles in the copyright wars. I strongly recommend this article to anyone considering the ramifications of the current RIAA or MPAA lawsuits. For instance:

Does our present level of copyright foster the cultural goods we'd like to see? As Geoffery Manne put it, the ultimate question with copyright law is Do we have the optimal amount of Bainbridge? The standard (Bainbridge) answer is to say that if we don't have strong copyright protections, we'll suffer a shortage of production. But the history of fansub anime belies this contention. If it weren't for fansubbing, the anime community in the U.S. is unlikely to be anywhere near what it is today. In its early days, fansubs were what allows a customer base to grow beyond a narrow range of people who could speak Japanese. Violation of the law allowed the market to form, and now Disney spends millions to get the rights to Miyazaki. It is possible that if we had weaker copyright protections, we'd have just as much creativity, but it would be different. As always with economics, the tricky issue is finding the elephant that isn't in the room: certainly our copyright law provides us with quite a lot of bland romantic comedies and ticky-tacky sitcoms. With a weaker and modified copyright law, do we really think all television would become Manhattan Neighborhood Network?

Does copyright law as it stands promote quality and access?: As far as quality goes, I've said before that fansubs are often better translations than their commercial counterparts. This isn't surprising, really, as they're translated by people who love the original and want to share the experience they had when they first saw the work. It's hard to say that if we didn't allow translation rights to movies or videos, we'd have poorer translations.

What about access? Anyone who's ever watched TV in England and the United States knows that copyright law respects corporate priorities over user utility. All the DVDs I purchased in the UK? They're virtually useless, not because of differing technical standards (as would be the case with VHS tapes), but because they're "region-locked." Who cares if I already paid my money, I can't use the discs. And of course, some people use Bittorrent to download TV shows simply because copyright negotiations have prevented the show they want to watch from being shown (or even purchasable) in their country of origin. (See, e.g. or until recently Lost.) What good is copyright law if pursuit of profits means that intellectual goods remain completely unavailable?

In any event, anime may be a geek media phenomenon, but the legal implications are not. The article is well worth a read.

Now for Something Completely Different

While there's many things I love about law school, I sort of wish it featured more light-hearted inanity like this.

Actually, that's a thought. What might happen at MIT Law School?

Parsing the Language, or Questionable Arguments, Part III

In response to my post on AUMF and FISA, Will Baude provides two things. First, he gives us a wonderfully short paragraph to recap the argument:

The President maintains 1, that his warrantless wiretaps do not violate the Foreign Intelligence Surveillance Act because FISA was implicitly repealed in part by the Authorization for the Use of Military Force, and 2, that it is vital that the PATRIOT Act be renewed.

After that, however, he proceeds to push his argument by parsing some words far too finely. He argues that the President's recent press conference shows that the PATRIOT Act "is needed to fend off Al-Qaeda and its collaborators, not some other group of terrorists that had nothing to do with 9/11," and thus is wholly redundant if the President believes what he's saying about AUMF. The words in question?
These Senators need to explain why they thought the Patriot Act was a vital tool after the Sept. 11 attacks but - but now think it's no longer necessary.

The terrorists want to strike America again. And they hope to inflict even greater damage than they did on Sept. 11.

This is silly for two reasons. First of all, the idea that (a) Congress could not have intended and (b) the President did not (and does not) contemplate the Patriot Act being useful against other terrorist groups, and thus of independent importance from AUMF, is not easily rebutted by the obsessive parsing of a presidential press conference. Suffice it to say that addresses to the White House press corp, calculated to spin well and get good soundbite, are not the stuff from which to divine the actual intentions of political actors when they pushed for a law several years ago. Is it useful to tie the Patriot Act to Al-Qaeda now? Certainly. Was that its exclusive intended ambit? Probably not.

Secondly, it ignores the fact that (as even Marty Lederman noted) there are areas in the Patriot Act that would certainly not be covered by AUMF. Both Baude and Lederman presume that the President was talking about acts covered in the AUMF/FISA relationship, but they give no reason for such exclusion. The interplay between the two statutes involves little more than the issue of wiretapping, while the Patriot Act puts forward a broader regulatory scheme.

But the true "let's parse a press conference like we would a statute" award goes to this argument of Lederman's, again linked to approvingly by Baude:

One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents.

What about the other party to the communication? Here's what the Attorney General said:

"Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

"To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."

"It is tied to communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda."

I don't think it's hard to understand from these carefully phrased formulations that many of the communications in question -- say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is "part of" an organization "supportive of" Al Qaeda -- are between two people, neither of whom is covered under the terms of the AUMF. (Thanks to David Barron for bringing these broad formulations to my attention.)

(emphasis in original) Through this, Baude is trying to prove that "[I]t's not at all clear that the President and his Attorney General share Anthony's belief about the narrow scope of AUMF."

AUMF authorizes the use of force against "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" (emphasis mine) Inconsistency only arises if the organizations "related to" or "supportive of" Al Qaeda (in the Attorney General's speech) were not also organizations that "aided" or "harbored" Al Qaeda prior to September 11, 2001.[1] Is the AG saying that the wiretaps covered groups outside the conjunction of those two sets? True, as Baude says, "it's not clear." But it's not outside the bounds of possibility that the AG used different terms for the same idea.

It's ridiculous to parse a press briefing spun to non-lawyers and reporters, even if given by the Attorney General, and expect it to precisely match the text of a statute. This is a good thing, too: read any statute out loud, and you'll quickly see that using statutory language in a press briefing would make them even more soporific than normal. Does the AG interpret AUMF more broadly than its language would allow? Maybe, but you can't really tell without more information on who was tapped (and how). We don't have that.

Of course, all this is fairly well tangential to Baude's real heartbreak:

It is possible that the administration will eventually decide to reconcile the two positions, but at the moment it is showing no sign of even trying to pretend that there is a theory of legal interpretation (other than national security purposivism) at work here.

I sincerely hope that Baude lives to see a presidency that puts forward a consistent theory of legal interpretation in its press conferences. For this to be a workable strategy in this age of mass media and television, the majority of Americans must become lawyers who worry more about consistency in legal interpretation than the pragmatic "purposivism." Such purposivism is, of course, the natural outgrowth of a polity that regards its own safety more highly than the fine points of intellectual consistency.

(Come to think of it, if it takes that many lawyers maybe I don't hope Baude lives to see it.)

That's not to say that a consistent theory isn't discernable from the administration's actions, but that looking for it during a glorified photo op is probably a fool's errand.

[1]: Those who harbored or aided Al Qaeda after September 11, 2001 would not seem subject to AUMF. This, of course, immediately points out one more absurdity with Baude's claim that Bush's use of "the terrorists" in his press conference must mean individuals to whom AUMF applies. Baude's assertion makes logical sense only if you are willing to think "the terrorists" means Al Qaeda to the exclusion of any groups that might have allied themselves with Bin Laden in the last few years. I humbly submit that anyone who thinks press conferences should be parsed that closely overestimates the precision of political speechwriting.

December 20, 2005

Exams Are Over

Two longish blog entries making nitpicky legal arguments.

Well, you can tell exams are over.

Two Questionable Arguments, Part II

In discussing the present Bush wiretapping scandal, Marty Lederman and Prof. Kerr make one curious assertion. One of the Bush administration's arguments is that the Foreign Intelligence Surveillance Act doesn't apply because Congress authorized the President through the Authorization for Use of Military Force passed after 9/11, thus placing any wiretapping within the "except as authorized by statute" language of 50 U.S.C. 1809. In his rather detailed discussion, Prof. Kerr says in passing:

Note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations.

Lederman takes the argument even further:

In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

(emphasis mine) Will Baude calls this argument savvy. "If the President and his attorney general are correct that the AUMF and Article II provide an implied repeal of other pesky procedural laws where national security demands, it is hard to imagine why they need the Patriot Act renewed at all--presumably the AUMF already implicitly does everything they need it to." Yet arguments that "If X did Y, he had no reason to do Z" are particularly pernicious: the fact that no reason springs immediately to mind does not mean no reason exists.

(I agree that the Article II assertion is a bit rich, but it is also to be expected. Every constitutional actor expresses their authority to its most colorable limits, and backs off only when pushed. That's checks and balances, and I don't think we need take the argument too seriously.)

The idea that AUMF under the President's argument rendered the Patriot Act unnecessary rests on an unspoken--and I'd wager unrealized--assumption. AUMF by its terms applies only to "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. . . ." Hence, even if one credits the President's argument, the Patriot Act would be necessary with regards to against any terrorist group not allied with Al Quaeda, or even one that allied with them after September 11. The Patriot Act would apply to Hamas even if it later joined with Bin Laden, or a terrorist group with different motives for attacking the US (e.g. the IRA, the Tamil Tigers). AUMF would not, and thus presumably would not override FISA.

Both authorizations thus seem like sensible executive policy: ask immediately for a limited authorization on force that can be passed quickly , then ask Congress to pass more wide-ranging structural change at a later date. Kerr, Will, and Lederman implicitly assume that the President sought authorization for, and Congress only intended the Patriot Act to apply to, terrorist organizations that perpetrated the 9/11 attacks. Are those the only terrorists in the world?

Two Questionable Arguments, Part I

Prof. Althouse, discussing the recent decision of a U. S. District Judge John E. Jones III in the recent Kitzmiller v. Dover Area School District decision forbidding the teaching of intelligent design, takes a pot shot at activism of a sort that frequently causes me to shake my head. First, Judge Jones:

As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom. Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.

Says Professor Althouse:
I love that last part about who's the real activist here.

Now, having read the opinion, I rather agree that Judge Jones isn't acting in a particularly activist way with his ruling's latter half. He's applying the Lemon test in a fairly straightforward manner. (Whether the Lemon test is itself activist is another question, but hardly speaks to the nature of a district court.) The first half of Judge Jones ruling might be considered slightly more activist, but that's really neither here nor there. The real question is: why do we care about an "activist" school board?

There are endless debates out in the blogosphere--and in academia--about whether the popular term "judicial activism" is useful. (See, e.g., here.) But to the extent the term has meaning, it connotes something undesirable not because a judicial activist is an activist but because he's judicial. When someone is concerned about judicial activism, that person is not merely worried about the existence of politics in the world--unless he's an idiot, I suppose--but that representative politics are being subverted by unaccountable judges perverting texts through "interpretation," particularly where such interpretation can only be overruled by supermajorities. A school board, on the other hand, is more like a mini-legislature that passes instructions then carried out by others. If a democratic polity and its elective representatives believe that a constitutional imperative has been misconstrued, this is precisely where activism should be: in a politically accountable branch subject to removal by voters. The political arena allows them to settle large and divisive societal disputes in a way that is more likely to be seen by the losers as legitimate.

Which makes me wonder about the parallel Judge Jones uses and particularly Professor Althouse's ringing endorsement. There is much to be said about the behavior of the school board in this case, but to accuse an elected panel of activism is sort of like accusing a law student of studying. It's what they're supposed to do, right?

December 19, 2005

When Blogs are Better than Law Reviews...

It's hard to walk across the quadrangle at Columbia these days and not hear someone talking about the NSA and wiretapping. If you want to be the envy of your watercooler friends, read Professor Orin Kerr's analysis and actually have some legal arguments on hand when the topic comes up. As Prof. Althouse says, "[A]t the very least fair-minded observers should see that the problem is complex. Cries that the program is blatantly unconstitutional (or obviously constitutional) should be recognized as unhelpful." (Someone tell that to Ambimb.)

Sadly, I have an evidence exam tomorrow and can spend little more on this. One thing bothers me about the story. The Times has hinted at new technologies being used in these wiretaps. Much like this blog, I wonder whether we can actually evaluate the legal situation when we don't know what technology is in use.

(My personal take, made brief as I should get sleep before my Evidence exam: as a political issue the wiretap story blows over in a week or two because what matters politically isn't so much what power is exercised as who exercises the power. If you trust the President, then he was using these taps against terrorists to prevent another 9/11: who needs those stinkin' warrants? If you think Bush is a chimp, you get on your constitutional high horse and worry about whether he's about to start sending every member of the Democratic National Committee to Gitmo. (See UPDATE)

Maybe I'm old, but I like to remember the '90s. When Clinton was in office, the sudden appearance in the White House of files on Republicans signalled the coming of Big Bubba . . . if you were on the right. If you were on the left, the fuss sprang from no more than a harmless paperwork error, or maybe even a bizarre coincidence: the flapping of a butterfly's wings in Karimnagar, the appearance of secret files where they shouldn't be. If every member of the Democratic Party now getting the vapors over FSIA had been so fastidious about privacy when Gore was proposing the Clipper Chip, Clinton wouldn't have had two terms.)

UPDATE: For a predictable example, we can always count on Professor "If I Don't Like It, It's Fascism" Leiter over at UT. No legal analysis--par for the course for the Report--but only the headline "Libertarians for Fascism" and an approving link to the typically uninformative Dadahead (who in turn is merely quoting Scott Lemieux). The latter two posts boil down to "[T]he legal question here is unambiguous." As for Leiter's opinion, he doesn't tell you what he thinks of statutory ambiguity, merely that it's fascism.

December 18, 2005

Congratulations to Chris

... who won the Best Law Blog award, beating out the Volokh Conspiracy. I'll have to admit I didn't vote for him (I don't vote in these things as a rule), but congratulations nonetheless.

Brokeback Mountain: A Retread With Bad Accents and Too Much Camera

I can't write a full review of Brokeback Mountain less than twenty-four hours before my bankruptcy exam. Given that most of my blogroll has mentioned it, however, I'd like to pause to make a few brief points and hope I can come back to it later.

  • More than anything else, I urge those who liked Brokeback to see The Wedding Banquet. Same director, same issues, but less preachy and a much better film.
  • The review that is closest (though not all that close) to my view comes from Jeremy Reff at Crescat, at least with regards to the cinematography. ("has there ever been a less chromatic use of color?" "...just a profitable pretension.") The frequent moniker "gay cowboy movie" is misleading in the extreme: almost all of the scenes worth watching occur indoors. Brokeback Mountain is a good 90-minute love story spread out over 134 minutes of insufferable attempts at arthouse scenery.
  • The storyline is emotionally affecting, of course, but the story (originally from the New Yorker, and available here via Google cache) takes less time to read and is generally better executed. If you want to chat at the watercooler without having to stare at the screen for a couple of hours, just do your reading and imagine an Australian hunk as an improbable stand-in for the lead character.
  • Said hunk brings me to the real suspension of disbelief problem. Heath Ledger has been in some good films and some real stinkers, but why does he keep getting cast in such unsuitable roles? OK, the slow-speaking shepherd Ennis Del Mar has few lines, and Ledger's got the perfect "stare into space like you're ignoring an unpleasant smell in an elevator" gaze for long, drawn-out shots of emotional angst. But I couldn't buy the accent. Every time he opened his mouth, there emerged the subtle annoying echo of Home and Away. I wonder if Brits watching A Knight's Tale had the same creepy feeling?
  • Finally, you might want to wait for video if you live in New York. I'll admit that my opinion of the movie might be unfavorably colored by the fact that I saw it in a packed Chelsea cinema, and I brought with me my own peculiar curse.

    After over a dozen outings, I have yet to take a trip to a theater in New York that hasn't featured a couple in the row behind me giving their own color commentary in the manner of a lobotomized Siskel & Ebert.[1] There are films for which this is acceptable, of course. Rarely can back-seat narration do anything but improve such absolute divel as Highlander 2. But when Mr. Ledger delivers the relatively poignant line, "You know I ain't queer," it doesn't help to have some overenthusiastic nitwit behind you loudly adding, "Yeah, right."

Bottom line: the film is worth seeing, but don't believe the gushing of critics who want this film to be a masterpiece so that they can indict red-state America with homophobia when they don't turn out at the box office. (See Althouse on Frank Rich, who is now behind Times Select's Wall of Irrelevance.) Designed to create the perfect media storm, it's closer in quality to The Hulk than Crouching Tiger. If you want to see Ang Lee handle issues regarding tradition and homosexual relationships with more skill and aplomb (and considerably more ethical complexity), you'd be better off renting The Wedding Banquet. Lee did much better than Brokeback a decade ago.

[Actually, I should admit that the first version of this review was considerably more positive, and only changed after I remembered that Ang Lee was behind The Wedding Banquet and Eat Drink Man Woman. Maybe it's unfair to judge the film by Lee's prior work rather than on its own merits. Nevertheless, I remember walking out of the Ultimate Picture Palace in my undergraduate days, my chest bursting and my throat sore with laughter after watching The Wedding Banquet. By comparison, Brokeback just seems a trite and expected Hollywood vision, politically-correct pablum.]

[1]: Yes, Siskel's dead. I'm of the age where it will always be Siskel & Ebert, no matter who else is in the balcony. I liked Siskel, and firmly believe that even from beyond the grave he could do a better job than the morons who end up sitting behind me. (As an added plus, Ouija boards aren't that disturbing during a feature film.)

December 15, 2005

Exam Hiatus

Yesterday, Federal Income Taxation. Today, Administrative Law. The exam season seems remarkably compressed this year, and I'm afraid that until they're over, I probably won't post much. The holidays should be a pretty productive period, though, so I'll see you then!

December 12, 2005

Raising the Bar

I was mildly suprised to find that this blog has been cited in two law review articles. [1] That's nothing. Today I find out that group blog Sepia Mutiny has been mentioned in the Indian Parliament as part of a corruption sting.

I have no idea how I would even start matching something like that. . . .

[1] Carol M. Langford, Depression, Substance Abuse, and Intellectual Property Lawyers, 53 Kan. L. Rev. 875, 890 n.83 (2005) (citing Legal Depression); Manuel A. Miranda, The Memogate Papers: The Politics, Ethics and Law of a Republican Surrender, 9 Tex. Rev. Law & Pol. 147, 177 n. 105 (2004) (citing Ignorance is Bliss, and Apparently Not Criminal).

Having looked at the first article, I'm not entirely sure that my blog really supported those contentions.

Self-Defeating Old Economy Dinosaurs

What are the executives at Warner Chappelle thinking? I don't know precisely, but this London Telegraph article suggests that they're not thinking much:

The internet download wars hotted up this week with one of the world's biggest music companies, Warner Chappell, leading a crackdown on websites that offer free song lyrics, scores and guitar licks.

Someone translate this into terms that a five year old, or your average record label executive, can understand: the market has changed. You can pay a bundle of very expensive lawyers a lot of money to shut down a service like pearLyrics, or you can use such services to boost your profits.

This week I've bought four songs off iTunes. I watch TV programs (sometimes on the Warner-Chappell associated WB, if the channel flips right), and twice this week I've heard a catchy tune that I wanted to buy. Sadly, I didn't know what the song was, so what did I do?

That's right, I typed the lyrics into Google, found the artist at a lyrics site and exercised my right as an impulse-driven consumer to put a buck in Daddy Warnerbuck's pockets through iTunes.

I haven't bought a whole album in over a year. The folder of CDs in my corner? The dust bunnies roam freely over its fake leather exterior. Those useless, scratchable CDs have all been ripped into iTunes and copied to the iPod, making the media itself little more than a waste of shelf space. And before the record execs in my readership start crying "Napster," I don't download illegally. I pay my $.99 to Napster and Musicmatch like a good little boy.

First, Sony feels it can hijack my computer when I rip a CD. Now, Warner Chappell not only failed to make even a half-assed digital distribution system before being beaten to the punch by Steve Jobs, but it's trying to shut down an easy, effective service that I can use to put money in Warner pockets.

Here's a hint, WB Head Honchos: for a fraction of what you'll pay your lawyers trying to shut down every lyrics site on the net, you could send a team of programmers over to Pearworks. They could help the author to make sure that when a user searches for your lyrics, your site comes up as the first and most definitive source for your artist. Most lyrics sites, after all, are bare-bones operations crowded with irrelevant popups, while you could give users not only lyrics but the background of their soon-to-be-new-favorite band. And you could cross-market to your little heart's content. (I know you know how to do this. Every WB teen drama now pushes its (WB) Song of the Week no matter how improbable or ill-connected to the show. It's even easier to cross-market online, WBster!.)

Instead, you're going to frustrate listeners by taking away something that makes it easier for them to find you. I've heard it said that lawyers are the most-despised occupation in American society. Record company executives are obviously jealous and jockeying for position.

(via the Conspiracy)

Searching for an Atheist C. S. Lewis

Professor Volokh posts two pieces today showing a concern that Americans hold a negative view of atheists. He focuses on a July 2005 Roper poll in which 50% of respondents view atheists unfavorably (as opposed to 25% for Muslims and 19% for evangelicals, both of whom make out worse than Jews (7%) or Catholics (14%)). I don't have access to the poll itself, but it strikes me that the animosity about which Prof. Volokh is concerned is more a matter of PR than substance.

Take, for instance, two atheists who I read regularly for one reason or another, Prof. Leiter and Pharyngula. The former has his infamous Texas Taliban alerts, the latter is sometimes rhetorically more restrained but has no problem linking to those who are not. Neither blog is designed to make an opponent view the author in a favorable light. Both men are, presumably, talented in their chosen professions. On the other hand, I defy any reader to wander through their archives and derive some bit of joy out of the experience.

That's not to say that the blogs aren't possibly enjoyable. I read through both, after all, to see what has enraged the atheist fringe, and I'd suspect that those who hold athiest opinions find the Leiter Reports to be a sustaining source of agreeable opinion. [1] Nothing agreeable comes through in the tone of the rather perpetual rants, however, with nary a post free of insult or disregard. If these blogs hold a sense of wonderment at the universe, or some sense of brotherhood towards all men (regardless of view), it's hidden rather deeply.

The authors that drew me to conservatism were a different breed. P. J. O'Rourke has a sharp tongue sometimes--especially towards fundamentalists of all stripes--but liberals and conservatives can laugh at him. In a roundabout way through O'Rourke I got to Senator Moynihan (a liberal but a Catholic), a smart observer of culture but still a wit. From there I came to Chesterton, and from Chesterton I rediscovered C. S. Lewis.

These writers shared at least two traits. The first is at least a toleration of religion. The second is a very genuine sense of wonder at the world, a wonder that precedes laughter. I would love to have been at a debate between Chesterton and G. B. Shaw, if only because while I might find the latter more convincing, the former is less curmudgeonly and more fun. But the atheist view seems ever more inclined towards Shaw's path, and ever less inclined towards a happy ending, in a somewhat predictable fashion.

Which leads me to wonder: is there an atheist apologist, a happy atheist author? I have some spare reading time over the holidays, and if anyone can point me towards a Doubting Lewis, I'd greatly appreciate it.

[1]: I can't resist pointing out that the Leiterlings are still waiting for Bush to start a draft with the full backing of Congressman Rangel, but apparently the "reality based community" is quite patient. I never fault anyone for playing the long game, but in this case I think Prof. Leiter may be playing it very long. Like waiting for President Jenna and Gulf War III, by which time I may well be in my grave.

December 08, 2005

Conflicted on Narnia

The first of the new Narnia movies premiered yesterday in London. I admit I'm a bit scared to see the films, because while Tilda Swinton as the White Witch intrigues me, I agree slightly less profanely with Wings and Vodka that it's likely to be awful. I can't see how one can get the beloved books to the big screen.

On the other hand, the religious/political gnashing of teeth over the movie is a bit too incredible to believe. A typical example from one Jewish website:

Rabbi Judah Dardik was hooked on “Lion” when he read it years ago as a day-school student. He borrowed the entire series from his older sister and devoured them.

It was only years later that he was told it was steeped in Christian allegories. He was “surprised and embarrassed I hadn’t realized. I felt duped,” Dardik said.[1]

Duped? You have got to be kidding me. The allegorical inferences in Narnia aren't carefully hidden like some M. Night Shyamalan twist. Sure, Lewis claimed he wasn't writing allegory, but the end of the first book should strike a cord with the Easter tale. [2] An author doesn't dupe someone by drawing upon one of the world's most well-known stories simply because that person doesn't connect the dots. (Imagine: "I saw Clueless and loved it. Then I learned it was actually based on Emma! Hollywood made me watch early 19th Century chick lit! I felt duped!")

Of course, many don't see or make the connection at once, but that's part of the fun of allegory. Even a non-believer should recognize that the Easter tale is itself gripping. Religious stories strong enough to survive centuries hold narrative power, from whatever faith they spring. Those who read the Narnia series and yet never got the connection needn't feel ashamed, but should instead re-examine the source material to see why it's so appealing. Don't gripe that the author "duped" you.

Read this article, and many like it, one gets the idea that Narnia is some kind of Anschutz-brand theological crack, the first few hits of which are meant to woo young non-Christians into quick and easy Lewis addiction. Presumably it's a gateway to less innocent fantasies like The Screwtape Letters or The Great Divorce for teens, and then in the last stages of addiction, the hard stuff: Mere Christianity.

Yes, Lewis wrote some books that are Christian allegory and are also a smashing good read. A Christian story should be able to hit the big screen--and anyone should be able to enjoy the idea of seeing it--without every other faith (or non-faith) scowling and acting affronted.

That said, I repeat my worry that the movie may be horrible on the merits, though the New York Times liked it (and similarly dismiss the controversy). . . .

[1]: Obviously, the "wily Christian allegory" stories aren't coming solely from Jewish sites, I just picked this as an example. I remember seeing a particularly silly article in Newsweek, from which this was in a sidebar, but I can't find the story online now.

[2]: Before someone leaves the obvious comment, yes, I do think that a young Jewish boy--or any other American kid--should be expected to know the outline of the Easter story. Certainly this doesn't come from any strong religious roots as a child. I was rarely taken to church (only with friends to their services after Saturday sleepovers), and my pre-Lewis Christian education consisted of little more than a "Bible Stories for Kids" illustrated book given no more prominence in the playroom than Curious George. Yet even without weekly observance, both my parents and my primary schooling ensured I knew the basic stories of Christmas (through the annual pageant if nothing else) and Easter, as well as the story of Hanukkah, and even some knowledge of Islam. If we didn't believe such things, it was still good practice to know them. Cultural literacy means one need not fear being "duped" by possibly the most well-known Christian apologist of the 20th century.

December 07, 2005

Do Law Schools Really Think Their Students Don't Believe Them That Credulous?

The oral arguments in FAIR v. Rumsfeld (RealMedia) make entertaining listening. The case has that make-believe feel one often gets in such civil rights cases, where everyone knows that the real argument is about the legitimacy of dont ask/don't tell, and yet we're tinkering about with issues that exist only in a hypothetical imagination, belief in which is necessary to get within the case law. Todd Zywicki has already excerpted one bit from the New York Times that neatly drifts into magical thinking:

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

(emphasis added) It's nice to see that Chief Justice Roberts has such a humorous touch, and he's got a point. Like the old joke about Shaw and the lady's virtue, the FAIR case shows what passes for principle in higher education.

Nevertheless, I'm a bit annoyed at the law school coalition for ascribing such phenomenal ignorance and credulity to their students in front of the highest court in the land. Key to the Chief Justice's rejoinder is an acceptance of the dream that students don't believe law schools are opposed to the Amendment or find compliance immoral. While this blog has been running, I've received numerous and lengthy emails from the administration explaining the position on the Amendment. When I logged on to register for employer interviews each year, a special notice was attached to the military recruiters, one year in red lettering. They haven't forced students who interview with JAG to wear a scarlet B yet, but it doesn't seem out of the question.[1] If there is a law student at Columbia that believes that the school supports the Amendment, or that it is doing anything but going along because it's being strongarmed. . . . well, let's just say I'd wonder whether that was an honest belief, or mere posturing because it makes one's case before the Court seem stronger.

Justice O'Connor, if it sets your mind at rest, we got the memo.

(UPDATE: I think my use of "credulous" in the title is a bit confusing and ambiguous. I meant to wonder whether law schools thought students would actually buy that they feel we don't believe them. But as the pronoun confusion in the last sentence indicates, the thought there is a bit twisted. On reflection, the title "Do Law Schools Really Think Their Students Don't Believe Them" would be better.)

[1]: Actually, what letter would the school choose? You wouldn't want to use H (for homophobe) for obvious reasons. I figure B for bigot, but I'm sure someone will come up with something more ingenious.

December 06, 2005

Spyware PSA: "SpyAxe"

I've just helped a friend clean Spyaxe, a particularly nasty piece of spyware, off his computer. This little beasty took away several hours of his time he'd more profitably use studying for exams. In case any of my readers have this problem, I figured I'd post the fix here:

Symptoms: You have frequent popups and a little warning symbol in your Windows system tray saying something along the lines of "You are infected with spyware, click here for a removal tool."

Fix: I've not tried it myself, but there is a trusted solution at Nick's Computer Security. Use at your own risk.

By the way, if you're ever stuck with spyware and want to get it removed, the easiest way to find a fix is to Google for "[name of spyware] remove". I know it seems simple, but believe it or not that doesn't occur to a lot of folks. Two words of advice: alway read to the bottom of any removal forum (as earlier entries may have solutions that turned out to be false starts), and only take advice from blogs or bulletin boards that clearly address many spyware problems, like Nick's or Malwareremoval.com. (The latter is important because some spyware artists are now using websites that look like Spyware Removal tools.)

According to one site, the problem may not be Spyaxe itself but instead an overagressive affiliate using spyware to market the product. I'm not sure I buy that, but if it is, this highlights the common problem of rogue affiliates that plague so much of the internet. (For instance, much of the spam I get on TYoH is from affiliates of two major online gambling sites.) I've an interesting legal idea regarding this which I hope to be posting shortly.

More on the problem here.

December 05, 2005

Fancy An Alternate Career?

Some complain about the high cost of law school. I want to be an attorney, but it's true that for the price of tuition and the opportunity cost of lost wages there are a lot of other lucrative opportunities. For instance, for less than the price of many top law schools, you can now buy an entire porn company on eBay.

(Link via the Register, always a cool source of useless news)

December 04, 2005

Well, At Least We Know Where the Brains Are in Washington. BRRRAAAAAAAIIIINNS!

Sadly, we can never seem to put liberal fantasies about politics in their well-deserved graves. First Commander in Chief gets picked up for a full season, then a small blog-flurry has erupted over reviews in the Village Voice and on Slate. These bits of unintentional humor cover the upcoming zombie-flick Homecoming by director Joe Dante, showing this month on Showtime (motto: programming not smart enough for HBO).

Homecoming's premise: Iraq-war casualties burst from their flag-draped coffins and take to the streets seeking suffrage opportunities, specifically the chance to vote for anyone who will stop the war. (They wish to vote Democrat, which turns on its head Chesterton's claim that tradition is the democracy of the dead.) Of interest to zombie-flick afficionados will be the Monkey's Paw mechanism by which the uprising takes place. According to the Voice, the redivivus brigade begins its march after a right-wing political consultant tells the mother of a fallen soldier that he couldn't wish for anything more than her boy to come back and tell her the importance of the conflict.

I don't have a TV, much less cable, so if anyone's seen this I'd welcome their review. It strikes me that it's possible, if only barely, that this won't suck. After all, Dante is responsible for Gremlins and the Twilight Zone movie's remake of "It's a Good Life," both of which had didactic subtexts and yet were good fun for schlock films. I'd only be the nine-thousandth commentator to mention that political overtones are fairly common in the zombie-flick genre. Perhaps Dante pulls it off again.

The tone of the reviews, however, suggest this will be not much more than a dull polemic, sure to appeal to those who feel they've not been getting their message out. Says the Voice:

At once galvanic and cathartic, Dante's film uncorks the rage that despondent progressives promptly suppressed after last year's election and that has only recently been allowed to color mainstream coverage of presidential untruths and debacles.

If what we've had from progressives since 2004 has been suppression, I can only suggest that hospitals stock up on their stores of sedatives.

Thankfully for Mr. Dante, his movie is being shown on a second-rate cable network as part of a series of productions with little or no executive control. He himself points out the typical problem with films like Homecoming:

Somebody has to start making this kind of movie, this kind of statement. But everybody's afraid—it's uncommercial, people are going to be upset. Good, let them be upset. Why aren't people upset?

Sermons by their very nature are vulnerable to two things: they upset the audience by telling them that the behavior they enjoy is actually a sin; and they inspire those less interested to fidget in the pews. The first goal is laudable, but movies are more likely to fall into the second trap.

Sadly, I won't get to see this unless I break my vows and start using Bittorrent. Did anyone find it funny? How about anyone who doesn't find Michael Moore to be a masterful political wit? I can imagine Ann Coulter as a zombie snack being a pretty good study break if it were handled with a light touch and genuine humor.

Giving The Devil His Due

How do you read TYoH? (4)
Andreas Nagler wrote: Happy new year Tony Regards Andi... [more]

Geek Media Meets Law Reviews (0)
Now for Something Completely Different (0)
Parsing the Language, or Questionable Arguments, Part III (15)
PG wrote: I get Tanski's argument from the pe... [more]

Exams Are Over (0)
Two Questionable Arguments, Part II (2)
A. Rickey wrote: John: You have to remember that Ba... [more]

Two Questionable Arguments, Part I (0)
When Blogs are Better than Law Reviews... (3)
cardinalsin wrote: I think I basically concur (especia... [more]

Congratulations to Chris (2)
A. Rickey wrote: Chris: While this may be the case,... [more]

Brokeback Mountain: A Retread With Bad Accents and Too Much Camera (2)
Bemac wrote: Highlander 2? A bad movie that sta... [more]

Exam Hiatus (1)
just me wrote: what year are you in columbia? do y... [more]

Raising the Bar (0)
Self-Defeating Old Economy Dinosaurs (3)
PG wrote: There's also the problem that many ... [more]

Searching for an Atheist C. S. Lewis (4)
mike wrote: vonnegut?... [more]

Conflicted on Narnia (12)
Martin wrote: Hrmph. Lets put this in context. I ... [more]

Do Law Schools Really Think Their Students Don't Believe Them That Credulous? (2)
Anthony wrote: Adam: I didn't say that the law sc... [more]

Spyware PSA: "SpyAxe" (0)
Fancy An Alternate Career? (0)
Well, At Least We Know Where the Brains Are in Washington. BRRRAAAAAAAIIIINNS! (0)

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

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

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'

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

Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books

Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties

Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report

The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:

Crescat Sententia
Hillary II
Politics and Principal/Agents

Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'

Surveying the revival
Birds of paradise

Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...

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

Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?

The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?

Letters of Marque
And there we are

Signing Off

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

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

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

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

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

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

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

Distractions for stressed law students

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

Syndicate This Site



Stop Spam Harvesters, Join Project Honey Pot