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March 28, 2006

Allah and the Taliban at Yale

Whatever the story with Columbia's new faculty member and misdirected email, it's certainly been overshadowed by recent events at Yale. As various and sundry have been reporting, Yale decided to admit Sayed Rahmatullah Hashemi, a former sort-of-ambassador of the Taliban, as a "special student." The predictable outrage shows no signs of quieting. Considering the situation this evening, two thoughts struck me. The first was a memory of Amy Lamboley's reaction to a comparison of Bush and the Taliban:

What bothers me most about the suggestion here that the Bush administration is equivalent to the Taliban is not that the comparison is unfair to Bush et. al., it is that it is unfair to the Taliban.

What made the Taliban a vile, despicable regime whose death went entirely unlamented was not the fact that they wished to enforce certain religious norms upon the population, but rather the brutally extreme measures to which they were willing to go in order to achieve that goal.


No question there. Buddha-busting throwbacks to the Dark Ages, Mr. Hashemi used to flack for folks whose idea of a good time was peeling off women's fingernails and tipping walls onto homosexuals. [1] No wonder these freaks didn't like religions that believed in reincarnation: such thoughts must be profoundly uncomfortable for the spiritual descendants of Torquemada who somehow misplaced his fashion sense. ("Our chief weapons are suprise, fear and a fanatical devotion to grubby-looking clerics in eyepatches!")

And then the second thought: what was Yale thinking? When millions of Afghanistani citizens could use a first-rate education, they're giving tuition subsidies to a former mouthpiece of the mullahs, ecstatic that they clutched to their busom a pre-renaissance man. (Apparently they were worried he might get scooped by Harvard.) What could this guy possibly have to offer? What could possibly be worth the inevitable--and justifiable--PR hit?

Then the answer hit me. Staring up at me from my desk was a copy of Thank You for Smoking, Christopher Buckley's tale of a lovably devious spinmeister for the tobacco industry. When the protagonist Nick Naylor gets a bit down, one of his best friends and fellow sin-lobbyists tries to pick him up:

"Heyy," Polly said, taking him by the shoulder, "Where's the old Neo-Puritan dragon slayer? Where's the guy I used to know who could stand up in a crowded theater and shout, 'There's no link between smoking and disease'?" . . . [S]he was right. You want an easy job? Go flack for the Red Cross.

Well forget Big Tobacco: Hashemi used to do spin control for sadistic fundamentalist freaks to whom John Yoo's torture memos would seem less strained legal guidance than light foreplay. And maybe that's the answer. We all know that Yale is an institution in constant pursuit of excellence: maybe they were just trying to snag the very best.

[1]: Note to Yale: weren't some of you willing to go to the Supreme Court over don't ask, don't tell? Are the Taliban somehow more acceptable because they did ask?

March 27, 2006

New Professor at Columbia: Olati Johnson (and Electronic Trespass)

As my fellow Columbia blogger notes, our university faculty is soon to be graced with ex-Kennedy staffer Olati Johnson. PG notes that the new prof was involved in Memogate, one of the first topics on this blog that ever received wider attention. (Indeed, it's one of the two entries for which this blog has been cited in law reviews, albeit in an article by another one of the principals in the scandal. (PDF)

As you might recall, Memogate involved some confidential memoranda that were taken by a Republican staffer off unsecured drives on the Senate Judiciary computers. (For more information see here.) My interest in the case involved the meaning of "unauthorized access" under the Computer Fraud and Abuse Act, but a memo supposedly by Prof. Johnson generated more heat among conservatives. (Source: CFIF. The memo itself is redacted.) After discussing the nomination of Julia Scott Gibbons for a seat on the 6th circuit with the NAACP Legal Defense Fund, Ms. Johnson wrote:

Elaine [Jones of the Legal Defense Fund] would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit. This case is considered the most likely to go to the Supreme Court. [ed.--good call.] The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it.

[Redacted] and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case. . . . Nevertheless we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important, and there is little damage that we can foresee in moving Clifton first.


Interestingly, however, this wasn't why I mentioned Prof. Johnson on my blog all those years ago. Rather, it was comparing the electronic "trespass" in Memogate with her own behavior with Republican email (sourced from here):
Late last year, [Ms. Johnson] opened her mailbox to find an email from a staffer in Senator Hatch's office. Attached to this email was a memo that was clearly misdirected. Nonetheless, she sent it on to several colleagues. Senator Kennedy's talking points on this matter include the line: "There was no impropriety, as the information sent to [Olati Johnson] was not confidential or privileged information." Kennedy had no problem with an aide handing on a document that clearly didn't belong to her when it had been misappropriated through the fault of a user. But when it was misdirected through the fault of an administrator, a standard which should be higher, he's talking of the next Watergate.

Suffice it to say, the literature on inadvertent disclosure is complex, lengthy and difficult, and given that I have seen no suggestion that the letter was a privileged legal document, the legal ethics rules probably aren't on point. (One discussion from New York is here.) I'll leave the nettiquette-level propriety of the act as a debate for my readers.

For the record, I think the "Johnson/Bollinger" collusion claptrap being muttered elsewhere is utter nonsense, and no credit at all to the conservatives spouting it. In other news, it seems Prof. Johnson has done at least some blogging, always a good thing.

Frustrating Arguments on the Estate Tax

So far as I can see, most of the political opposition to the estate tax comes from distaste at making the passing of a loved one a taxable event. Yet simple distaste doesn't cut much mustard in debates on tax policy, so it's usually mentioned in a few quick paragraphs or a footnote. Following quite a bit of reading on the estate tax, however, I'm finding myself more and more frustrated by a common argument of some estate tax proponents.

Imagine that a coalition of Jewish kosher food producers, Bill Clinton's health care gurus and Vegans for World Collective Dieting, ever seeking to improve the nation's diet, managed to get a 6000% tax passed on any burger topped with any kind of cheese. In other words, if our former president wanted a Big Mac, he'd be paying upwards of $25 for a few greasy patties and some processed cheese food. Suppose further that you found out that I--having been struck on the head by something very heavy, one supposes, and lost all my libertarian instincts--was in favor of this Fat Tax. When, incredulous, you asked me why, I told you, "Well, look, this tax doesn't have that much effect: after all, only 150 cheeseburgers were sold last year, and all of those to very rich people!" You'd rightly laugh and point out that (a) this is probably because of the tax itself, (b) relatively poorer people get their scathing from not being able to buy cheeseburgers and (c) I'm probably promoting people evading the tax by buying the burgers and bringing their own cheese.

In the hypothetical above, my facts regarding the purchasers of Whoppers might not be untrue as such. Further, I may be right in my conclusion: due to public fear of BSE, actual consumption of burgers may have dropped such that very few people would eat cheeseburgers at a sixth the price. But on its own, the number I gave you is stunningly irrelevant.

So now look at this paragraph from "Policy Watch: Death Watch for the Estate Tax?" by William G. Gale and Joel B. Slemrod. (Note: My copy comes from JSTOR, not the link given.) I'm not picking on them particularly: this argument is typical of the genre.

The supposed impact of the estate tax on family farms and businesses has taken on a hugely disproportionate role in public policy debates. Estate tax opponents note (correctly) that a large proportion of American businesses never make it to the econd generation, but then go on to assert that the estate tax is the reason why. But only a tiny fraction of small businesses and farms are part of taxable estates. It is implausible that the estate tax has an important impact on the proportion of businesses that make it to the next generation.

(emphasis mine) Here we have the Rich Man's Cheeseburger argument. What Prof. Slemrod is saying may well be true: the estate tax may have little to do with intergenerational transfers of businesses. But the statistic quoted on its own does little to support the argument. Certainly if Slemrod is right, we'd expect to see few businesses as part of taxable estates, because donors or donees sell the assets instead of taking them. But if Slemrod is wrong, it's unlikely that we'd see very many farms or businesses as part of taxable estates either. A high rate of tax will encourage the sale of the business prior to death, so that the owner and operator can take advantage of gift tax exceptions for inter vivos transfers.

Even then, the paragraph misstates the anti-estate tax argument. It may be true that the vast majority of American businesses don't get transferred to the next generation for wholly non-tax reasons: for instance, I have no interest in following in my father's business whatever the price. But the perceived injustice of the estate tax doesn't arise from that aggregate figure. If 90% of all sons march to a different drummer but 10% wish to stand in their father's shoes, the existence of the estate tax will indeed have little effect on the overall proportion of firms being transferred. However, it may very well have a large and preclusive effect on the remaining 10%. To the extent that a family firm is seen by the public as being more than the amounts in its ledgers, proponents then seem to be arguing for a tax on sentimental value.

Or suppose that 80% of small businesses and farms are too small to be hit by the tax, 10% are exceptionally profitable (or shelterable) and thus worth retaining notwithstanding the tax, and yet an intermediate 10% are hit by the tax, and these families are forced to give up their businesses. These 10% still constitute a loss. The same "sentimental value tax" objection as above comes into play.

This is not to say that estate tax proponents are empirically wrong. Yet I've spent a fair amount of time searching Westlaw and Lexis for statistics that suggest they're empirically right, and what I've found is the same general argument: only a small number of businesses end up in taxable estates. That answer is particularly dissatisfying, and if anyone can point me to better information, I'd appreciate it.

(For those wondering, my main objection to the estate tax is a perception of unfairness between those taxed. Most liberal arguments focus on the vertical equity between the very least and very most well-off in society. My sense, however, is that much of the anger at the death tax arises from a perceived unfairness between the extremely wealthy and the moderately well-off (and at risk of enough wealth to eventually hit the tax). There is, for instance, a quite possibly apocryphal (i.e., I can't source it) and yet common among Republicans tale of the death of Rose Kennedy, in which her state of residence was found to be Florida rather than Massachusetts for tax purposes. Because death is both certain and (presumed to be) remote, "tax planning" seems easier, more abusive and more likely.

The estate tax proponents I've read, mostly because they're Rawlsians, pay very little attention to this more narrow form of vertical equity. To an extent, it's the "World to End Tomorrow: Women, Minorities Hit Hardest" blind spot translated into the tax context. So long as it's equitable between the top and bottom 10%, who cares if it's not very equitable at the very top?)

March 23, 2006

Silly Me

Finally sick to death of Dell's horrible customer service, I decided I'd splurge a bit this Christmas and buy myself a new notebook. Anything but a Dell, I thought, and so I bought a lightweight but relatively powerful Alienware Sentia. No more Dell!

Some days the universe just hates you.

March 22, 2006

Not-So-Sobering Numbers

Taking a few minutes away from his regular demands for the impeachment, defenestration or perhaps just plain old tar-and-feathering of President Bush, Ambivalent Imbroglio writes down a few suggestions for those 3Ls who feel they're "up to their eyeballs in debt."

I've never met Mr. AI, but all I can say is that he must be a very tall man. When I was measured for my cap and gown yesterday they claimed I was 6'3", and my debt load would seem to wholly block my vision.

At the end of three years, these are not sobering numbers. These numbers prompt the need for a very stiff drink.

Last Examwatch Ever

Astute readers will note that the last examwatch ever has now started....

The Last Spring Break of My Life

...was spent in Austin, Texas at the South by Southwest Festival. I've wanted to see the festival ever since I worked for Sen. Gramm, but I'd never quite had the chance. Better yet, I was able to drive around a lot of east Texas in a Honda hybrid. I really need a car for next year, and that high gas mileage coupled with the really quiet and smooth ride seems very attractive right now.

Of course, nothing says "You're in the South, boy" like humorous church road signs:

I did my best, I suppose...

Now Back to MT Blacklist

As some readers have noticed, I've been having some trouble with comments recently. This blog gets about 100-150 spam comments per day that I see (and probably more that go straight to junk), and managing this has been a major thorn in my side for a while.

Thankfully, SixApart released a bevy of new plugins recently, one of which is the MT-Blacklist Connector for 3.2. This puts the fantastically easy-to-use Blacklist plugin back in operation, which means that hopefully I can cut down on the amount of time I spend fixing the blog and spend more time writing it.

In the meantime, if you've a spare moment and can post a comment here, please do. For those who are keeping track, this blog currently uses the following plugins to eliminate spam:


As always, if someone notices that something's not working, please don't hesitate to tell me.

March 21, 2006

How to Spot A Conservative in Pre-School

Apparently I must have been a real trial as a kid. At least that's the theory of one of Prof. Leiter's new co-authors, whose latest post is summed up best by Mike Rappaport: "Conservatives are not only evil, they're ugly too."

I guess the Social Sciences are feeling ignored again, because another psych prof has published a piece in the Journal of Research in Personality detailing exactly how psychologically imbalanced we conservatives are. It seems that Prof. Block tracked a number of Berkeley kids from their developmental years to their 30s and has found that the "whiny, insecure tattletale[s]" (Ms. Wilson's words) grew up to show Republican tendencies. For a certain kind of liberal, this is just the kind of Cheerios they need to find a smile in the morning.

Curiously, Ms. Wilson's source material--an article in the Toronto Star--is quite a great deal more circumspect and interesting than her own rantings:

The results do raise some obvious questions. Are nursery school teachers in the conservative heartland cursed with classes filled with little proto-conservative whiners?

Or does an insecure little boy raised in Idaho or Alberta surrounded by conservatives turn instead to liberalism?

Or do the whiny kids grow up conservative along with the majority of their more confident peers, while only the kids with poor impulse control turn liberal?


Who knows? Asking such questions wouldn't let Ms. Wilson get her licks in, so understandably she doesn't bother.

More amusing is the fact that between my reading her post and writing this response, she's taken half of it down. After catching some flack, she determined that her tantrum was a bit too bilious even for the Leiter Reports. [1] "[I]n blog posts, I go by the coupla hours rule: if I write something that I pretty quickly think better of, then I just get rid of it . . . ." Or as one of my blog-mentors once put it:

When in doubt; deny everything. When you're seriously up shit creek; Ctrl+A Delete.

Update: Link to Republic of T added after initial publication.

[1]: Expressing some dismay at the reaction to her original work, Ms. Wilson writes, "Honestly, though: U.S.-ers are entirely too lacking in tolerance for the appropriately inappropriate jibe... read some Will Self if you want to see how totally restrained I am." Will Self? I shall have to remember this line of argument in case I ever have trouble with St. Peter: "Carnal sins? C'mon, Pete, compared to Ron Jeremy, I'm a model of chastity!"

March 15, 2006

T-Shirt Slogans

Before heading off to sunny Texas for spring break I've cleaned like a demon. Unless the room floods while I'm gone (not entirely impossible), I should return home to a room that sparkles like a hotel. Part of this has involved throwing out or donating some of my old clothes, something at which I've never been very good. Today I've been strict: anything I've not worn consistently in the last six months is going. I really need to limit my closet consumption.

I'm especially loathe to throw out t-shirts that have silly slogans on them. (Yes, I've got the fashion sense of a color-blind zombie.) Sadly, I can't seem to find anyone who makes the following anymore:

  • STOP PLATE TECTONICS
  • "I've got the body of a god. Unfortunately, that god is Buddha."
  • Pave the Planet! One World, One People, One Slab of Asphalt!

Come to think of it, it's probably best for me that these things have gone thoroughly out of fashion....

March 14, 2006

What My Friends Must Think of Me

Making my way through some severe spring cleaning, I found a gift brought back from two of my closest English friends: four sets of kim giao chopsticks from Vietnam. As the packaging explains:

Kim giao (Podocarpus fleuryi) is a valuable tree associated the woeful with love story betwee Giao thuy a woodcutter's son and Kim Ngan a princess. Kim Giao wood can change its colour when it is put in poison. Thus, in the past, Kings used the chopsticks mode from Kim Giao wood to discover poisoned food at parties.

[errors from original retained]

The key question is whether they think that after I become a lawyer I'll have such insidious adversaries that I'll need to check my lunch for poison, or whether they figure law school has corrupted me to the point that I'll start poisoning my dinner guests. (Lawyers don't have the best reputations, after all.) I'll be suspicious if they ask to use these chopsticks next time they visit...

March 13, 2006

Days When I Despair for My Side of the Aisle

Pace all of the right-wing triumphalism over the Army of Davids bloggers-correct-the-world schtick, there are times that blogs serve only to give dumb a megaphone. For my Democrat readers, here's a beacon of hope: conservatives are getting sloppy, a sure sign that we deserve to head back into the wilderness for a few years.

Today's episode of silly hysteria? The utterly unmemorable People's Cube [1], a conservative parody site, gets blacklisted by Google. Quick as a flash, they complain that it must be because someone at Google finds their conservatism offensive. Poor little picked on right-wing parody site being abused by the huge evil Search Engine Conspiracy!

Please. The People's Cube isn't big enough to hit the radar of a Google engineer, who would spend all day targetting this drivel if he for some reason wanted to get revenge for the Anti-Kerry Blogger Bash. The web is Douglas Adams-league huge, and if something happens with Google, nine times out of ten the answer's in an algorithm.

This story stunk like month-old milk in a dorm fridge. But like Saturday-night freshmen back from partying on Broadway, major right-wing sites such as Little Green Footballs, Michelle Malkin and Anti-Idiotarian Rottweiler grabbed that moo-juice and looked to find a good mixer. No fact checking. None of that Goliath-killing 'expertise.' Just headlines like "A Google Purge?" (Malkin) or "Google Purges People's Cube" (LGF).

As of this writing, only Little Green Footballs has linked to this article with a much more reasonable explanation. It seems that the People's Cube was either a victim of a spamming attack (maybe) or was more likely using invisible text in an attempt to boost itself up in the rankings for certain search terms. Far from being a victim of persecution at the hands of some left-wing BogeyCorp, it seems that the People's Cube likes to engage in a little black optimization of search engines. Google was right to drop it.

Which doesn't excuse Malkin, LGF or AIR. Search engine optimization isn't simple, but it's also not some dark area of mysticism impenetrable to intelligent man. All you had to do was look at the site--admittedly, in a site cache--and turn off the stylesheet to see what happened. Well, you'd have to do that and have some passing idea as to why some search engines drop sites, otherwise known as "having some limited idea what you're talking about."

Weren't these supposed to be the folks who check facts before making serious accusations? If they don't know how to do it, find someone who does before spouting off. Their linked source material magisterially claims that he "can think of only three reasons" for being dropped, all political. That's a good sign that your source is either (a) an idiot, (b) hiding something, or (c) hasn't thought hard enough for other possibilities. But it fit in with the current "wisdom" among certain conservatives: Google buddies up to China, so now it's evil corporate whore censor scum. As I've said before, when a story just happens to confirm your prejudices, that's just the time to check them.

There's all sorts of media bias against conservatives, but not here. This kind of carelessness makes me cringe. Sloppy fact-checking gives that much more ammunition for those who see blogs as nothing more than politically-charged echo-chambers and one more data point for liberals to point at when they want to call conservatives paranoid.

UPDATE: The original version of this article left the question mark off of Malkin's title. I've corrected this.

[1]: I'm not linking to them. I refuse to encourage the goofy ignorance of that site by adding my Pagerank to its listing. If you want to find the article, it's linked off of any of the other right-wing bloggers I list above. I know it's a bit rude to you, my readers, but I hope you'll allow me a "clean hands" defense.

March 08, 2006

Reflection Two on Rumsfeld v. FAIR

Enough pixels have already fluttered regarding the constitutional repercussions of Rumsfeld v. FAIR, and I really have nothing to add to the kind of commentary that engages Con Law professors. My thoughts are slightly broader and less focused.

1) Broadly speaking I think the opinion comes out correctly. Law schools can't be forced to hire pro-Solomon professors, one supposes, but they must allow military recruiters on campus. The schools will continue to grant them access whilst posting signs in GREAT BIG CAPITAL LETTERS telling us what horrible people the military are, maybe in the future making applicants run a gaunlet of screaming protestors, but they can't close the door altogether. There's a justice in this: as I've said before, if you're going to take the king's shilling, you can't be upset when you get dragooned.

That's not to say that "don't ask, don't tell" is good policy: it isn't. (On the other hand, it's not disastrous policy: keeping homosexuals out of the military will result in, at the very worst, a slightly less-than-optimal allocation of resources to the armed forces.) We should change that policy, but to do so we'll need to change hearts and minds both within the military and without. To do that, at least insofar as JAG recruiting is relevant, the ivory tower of law would have to reconnect with the serfs living outside the keep, at least now that the legal equivalent of the Sacred Council of Cardinals has declined to intervene in more temporal affairs. Maybe this will provide the incentive.

2) Thankfully, Chief Justice Roberts and the rest of the Court soundly rejected the amicus brief of Columbia's law faculty. As a quick recap, the professors argued that when Congress passed Solomon, they meant to ban discrimination against military recruiters, and that an even-handed anti-discrimination policy on sexual orientation applied to both law firms and the military does not do that.

First, this argument borders upon an arid textualism. The military isn't disadvantaged if the rule is stated "we don't allow any employers to interview if they discriminate." Yet they are disadvantaged if we state a more robust rule: "we don't allow any employers to interview if they discriminate other than as required by law." Is it the honest opinion of the law faculty that in any other situation, they'd apply their anti-discrimination policy against employers who were complying with a statutory mandate? (If a law were passed stating that no declared homosexual would be allowed to pass the bar--presuming its constitutionality--would the law schools really shut out everyone?) Can an organization that accredits students who are presumably expected to comply with the law really say that their antidiscrimination policies should trump a valid act of Congress?

While I respect most of its signatories, the logic within the brief borders upon farce. How could many of the same professors who have spoken so favorably of legislative history in my classes be so parsimonious with it in front of the Court? From the legal realist perspective--and one of the signatories is one of my favorite of Columbia's realists--what possibly can the law schools have hoped to gain if the Court ruled in their favor? Unless the professors truly believed that Congress really intended such a stingy reading of Solomon--go ahead, take a moment to laugh--didn't they expect that a ruling in their favor would result in yet another revision to the statute, this time erasing the scintilla of doubt that might somehow be scraped from its text? At best, such a result punts the issue six months to a year down the road. Woohoo! We can bar the doors to the military for one year at the risk of draconian wrath from a Congress that--it's hard to realize this from New York--still sits in Red State hands.

3) It's worth placing this debate in its larger context. Rumsfeld v. FAIR follows Romer and Lawrence as part of a larger debate this country is having: is it acceptable for our society, or even subsections of it, to disapprove of certain sexual behavior? And here I find myself having--uncomfortably--to side with the social conservatives.

There is a difference between saying that one should stigmatize certain sexual behavior and that the country can do so through legislation. To say that anti-sodomy laws should be overturned merely requires the expression of a political opinion, and one I share. To agree with Lawrence is to fantasize that this country at some point collectively decided that anti-sodomy laws were so vile that our descendants should require a supermajority if such policies were to be instituted. To believe that discrimination against homosexuals in employment should be prohibited, one must merely think that Congress or the states have the power to do so if they wish. To believe in Romer, one must think that at some point a majority of us agreed that any other law was beyond the pale.

Me, I'm sure I do a lot of things of which other people wouldn't approve, simply because they're legal, fun and I don't feel they harm anyone else. (Some of my best friends are Mormon, and almost certainly disapprove of my Chestertonian fondness for wine.) But those others should still be able--electorally, if need be--to disapprove of my choice. To do otherwise not only trivialize their opinion: it trivializes my choice to disagree with them.

Such dismissive attitudes come with political cost. After Lawrence and Goodridge, after all, came a multitude of state constitutional provisions making obvious clarification. To paraphrase the intent of each such resolution: "Whatever we've said before about equality, it didn't change the common sense idea that when we say 'wife' we mean a woman, when we say 'husband' we mean a man, and when we say 'marriage' it means between a husband and a wife. If we were ever convinced otherwise, we would have mentioned it sooner. Judges, take note."

It's great that my law school doesn't think homosexuality--or even much in the way of consensual sex--should be verboten. But law schools accredit lawyers, and however much I disagree with folks who think sex should be limited by tradition, religion or what have you, they should have the right to have their lawyers too.

4) Finally, my favorite part of Chief Justice Robert's opinion occurs on page fifteen of the slip opinion:

The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with
the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the military's policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). In that case, we upheld a state law requiring a shopping center owner to allow certain expressive activities by others on its property. We explained that there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was "not ... being compelled to affirm [a] belief in any governmentally prescribed position or view." Id., at 88.

The same is true here. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution concern "not a plausible fear"). Surely students have not lost that ability by the time they get to law school.


(emphasis added) Thankfully, at least the Supreme Court sees law students as adults. Can we now lay to rest the fanciful idea that law students couldn't figure out the institutional stance on 'don't ask, don't tell'?

(Update: a few text errors, including the embarrassing mistake of confusing Romer with Roper, corrected.)

March 07, 2006

A Modest Pro Bono

Dear Wormwood,

I've slightly overshot Columbia's 40 hour pro bono requirement for graduation, or at least I suspect I will when I finally fill in the forms. On the other hand, quite a few 3Ls of my acquaintance have complained to me recently of their frantic efforts to fulfill their responsibilities under this dubious virtue tax.

At the same time, I've overheard a number of 1Ls murmuring that, despite a fresh influx of funds from Columbia, there are still not enough positions in the Human Rights Internship Program. Thus many fledgling do-gooders find themselves seeking summer jobs that may not be spiritually satisfying. It seems that while their elders are looking for work, they're looking for money.

It's a pity that Foundations of the Regulatory State is no longer a required class, because in my day almost every 1L covered the obvious solution to this problem. To ensure the maximum amount of happiness among Columbia students while making sure we contribute our fair share--whatever we collectively decide that is--we should institute a trading system similar to that used for pollution emissions. [1]

As you might expect, Wormwood, those who are inclined towards public interest (and not coincidentally, most often the political left) collect far more than the 40 hours they're required to contribute. On the other hand, those for whom the requirement is a mostly unnecessary hassle are swiftly heading towards more or less lucrative careers. The obvious solution is to allow 3Ls to bid for and purchase pro bono hours from overproducers. The funds could then be used to sponsor 1Ls summering in exotic and underserved locales such as South Africa, eastern Europe or the Bronx.

Collectively, there is no doubt this is a winning formula. It's not too much of an assumption to think that those who want to do pro bono work will do it more productively, so our "good causes" however defined will receive better resources. We would be able to guarantee a certain amount of public interest work: after all, there's a floor beneath which hours cannot fall, and we can raise that to much higher than 40 hours per student. At the same time, HRIP receives more funding without having to increase tuition across the student body, producing even more socially enlightened output.

Wormwood, this seems a most sensible course by any tangible measurement. Yet my tongue is firmly in my cheek and I would never expect such a system to take hold. At the end of the day, the pro bono requirement isn't really about making sure that good causes receive useful (or enthusiastic) resources. Nothing so grubbily consequentialist should enter the publicly-spirited mind! To talk to a true believer, it's all about opening our minds, enlightening our souls and making us think that an industry supporting starting salaries of nearly $150,000 at the elite level is being done in a spirit of "professionalism," that is to say in the service of the public rather than the practitioners.

I put it to you that at the end of three years of law school, it is very difficult to avoid the level of cynicism required to say that with a straight face. And if three years of law school doesn't isn't enough, a brief glance at your debt burden should do it.

Ah well. For me it's almost over. As I mentioned to one complaining 3L, don't think of it as enforced charity. Think of it as a virtue tax, in which you take from whatever you consider virtuous and pay to what the Center for Public Interest Law considers such.

[1]: Often called "cap and trade" systems, emissions trading works to reduce a negative externality through a pricing system. What I'm proposing wouldn't be a cap and trade system, as it has no caps. Rather, trading would be used to maximize a positive externality. On the other hand, "floor and trade" seems a particularly clumsy phrase, and so I haven't used it.

Reflection One on FAIR v. Rumsfeld

More on this decision tonight, but for now, two thoughts.

1) Boy, was I wrong.

2) Today we received an open letter from the Outlaws (Columbia's LGBT society) expressing their disappointment with an 8-0 decision. Fair enough, but why is this being forwarded through the Student Events listserv? There's no event attached to the letter. Whatever differences I have with the Federalist Society, at least I'll say this for them: when they want to express an opinion, they put it in the right place. If Outlaws wants to spend five hundred words pointing out the bloody obvious more power to them, but could they make sure the message didn't stink of spam?

Bankruptcy Judge Cites Adam Sandler Film

The Smoking Gun has the scoop.

Leiter Group Blog Shows Its Typical Preference for Keeping Its Own Facts

I have no idea what to make of this post by Benj Hellie at Leiter Reports other than to think that by adding more professors, Prof. Leiter's actually taken his blog even further from reality. Hellie is praising the power of the blogosphere to "expose" his opponents whilst completely ignoring the best practices of the same. For instance:

I didn't see the "My Pet Goat" footage until mid-2003, and at the time it was secret knowledge; now "no one anticipated the breach of the levees" is available for anyone on Crooks & Liars to expose Bush's lies after Brownie's attempted self-rehabilitation.

Any honest or competent blogger would at least include a link to the source of his quotation. (Near as I can tell, it's a close but incorrect misquote.) But worse, Hellie seems to completely ignore the correction the AP printed with regards to the story, which has been widely-remarked upon elsewhere. Decent analysis requires at least confronting opposing opinions, but Hellie makes no attempt to show that he even understands the difference between a breach and an overtopping of a levee.

Yet that's a minor point in comparison to the very first sentence, astounding in its self-importance:

What if the blogosphere hadn't come into existence only shortly after the Bush Gang takeover?

Ignore the slam at Bush: Prof. Leiter seems to require a certain number of those per hundred words to keep one's position as an author on the site. Since when did the blogosphere emerge in January, 2000 or even November 1999? Even Wikipedia notes that the word was coined before that fateful election, and blogs themselves had been around much longer. To take only one example, Livejournal started in March 1999 and was hardly the first kid on the block.

True, political blogging like Andrew Sullivan's didn't break out into the mainstream until 2001. Nevertheless, the 'sphere--even it it wasn't named as such--has an older pedigree than President Bush. If a blog starts in the forest and a philosophy professor isn't there to hear it, that blog still exists.

Giving The Devil His Due

Allah and the Taliban at Yale (5)
kr wrote: hayagreevan, Mr Hashemi was compl... [more]

New Professor at Columbia: Olati Johnson (and Electronic Trespass) (0)
Frustrating Arguments on the Estate Tax (1)
Hugh Black wrote: Tony, It seems to me that the esta... [more]

Silly Me (1)
HumanityCritic wrote: Yeah, I feel you on everthing Dell.... [more]

Not-So-Sobering Numbers (1)
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Now Back to MT Blacklist (1)
PG wrote: But what will this mean for giving ... [more]

How to Spot A Conservative in Pre-School (4)
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What My Friends Must Think of Me (2)
Anthony wrote: Yes!... [more]

Days When I Despair for My Side of the Aisle (4)
A. Rickey wrote: Actually, Malkin did half-ass updat... [more]

Reflection Two on Rumsfeld v. FAIR (1)
James Parker wrote: Hey mate, I really enjoyed discove... [more]

A Modest Pro Bono (3)
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Reflection One on FAIR v. Rumsfeld (0)
Bankruptcy Judge Cites Adam Sandler Film (0)
Leiter Group Blog Shows Its Typical Preference for Keeping Its Own Facts (0)

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