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April 28, 2006

Bad Timing

So right after my Securities exam is finished, I come home and, as a matter of habit, check my mail and glance on Amazon. The little Gold Box with daily special offers is blinking, so I click it to find that three of my ten offers are for... securities hornbooks.

April 26, 2006

That Dreadful Bush, Tightening the Thumbscrews

The Volokh Conspiracy, ThinkProgress and Planned Parenthood have all recently commented on a "new" Bush Administration policy: supposedly, homosexuals should be abstinent for life. A quick look through the statute book, however, leads one to believe that not only is the policy not actually as harsh as suggested, but it's not particularly novel.

The fuss is over a new set of guidelines for Community Based Abstinence Education (CBAE) Programs published by the Administration for Children and Families. (Oh for those glorious small-government days of Republican lore, when our children and families didn't really need to be administered.) The ACF has stepped up to the plate with a new definition of abstinence:

Abstinence curricula must have a clear definition of sexual abstinence which must be consistent with the following: "Abstinence means voluntarily choosing not to engage in sexual activity until marriage. Sexual activity refers to any type of genital contact or sexual stimulation between two persons including, but not limited to, sexual intercourse."

This definition then comes crashing into the definition of "marriage" mandated by the Federal Defense of Marriage Act:
Throughout the entire curriculum, the term "marriage" must be defined as "only a legal union between one man and one woman as a husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (Consistent with Federal law)

And hence, complains Daniel Carpenter (through a quote from Walter Olson of Overlawyered) at the Volokh Conspiracy, "a classic bait-and-switch has gone on here." Worries Planned Parenthood, "This implies that gay, lesbian, bisexual, transgender, and questioning (LGBTQ) teens have no choice but to embrace a lifetime of abstinence." ThinkProgress sounds off, "In other words, if you’re gay, the Bush administration has decided that you should be taught to never, ever engage in 'any type' of 'sexual stimulation' — ever."

All this seems rather histrionic. Reading through the CBAE materials, they seem a bit silly, but none of them are couched in terms of "teens having no choice but to" or "you should be taught to never, ever." They promote the idea that certain decisions are healthier. I don't really agree as to the health risks and one could argue all day about the evidence given, but the descriptions of the programs are a bit breathless. After all, tobacco and alcohol education programs don't advise that I have "no choice" but to smoke or drink. They recognize that I do have such a choice and explain that my lungs and liver would probably object. Nothing on the ACF's page suggests that these programs are different in type. [1]

More to the point, I'm wondering just what statutory wiggle room these organizations--including the Guttmacher Institute--thought that the ACF actually had. Explicitly defining "abstinence" as meaning "no sex until marriage" may be quite novel as a matter of government policy, but is the definition so much more horrible because it's now explicit instead of implied? The statutory standards required of the CBAE have not changed since 1996, and are found in 42 U.S.C. §710(b)(2):

For purposes of this section, the term "abstinence education" means an educational or motivational program which--
(A) has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity;
(B) teaches abstinence from sexual activity outside marriage as the expected standard for all school age children;
(C) teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems;
(D) teaches that a mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity ;
(E) teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects;
(F) teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child's parents, and society;
(G) teaches young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sexual advances; and
(H) teaches the importance of attaining self-sufficiency before engaging in sexual activity.

(emphasis mine) Now, I suppose a too-clever-by-half wordsmith might point out that there's nothing in this definition that explicitly requires CBAE programs to promote abstinence until marriage rather than, say, until one has been dating a few months, until one has exchanged class rings, or even until the age one can legally drink. But any alternate definition seems to stand at loggerheads with clear intent: after all, promoting that a relationship be consummated somewhere outside marriage means promoting a brand of abstinence statutorily considered "likely to have harmful psychological and physical effects." Certainly the ACF's definition of abstinence seems the most plausible reading of Congressional purpose.

Which then leads us back to my confusion as to these accusations of a "new" policy. Certainly one can see the difficulty that ThinkProgress is gnashing it's teeth over, but those teeth should be well worn to nubs by now. After all, the definition of "abstinence education" was signed into law by the same president who signed the Federal Defense of Marriage Act: Bill Clinton. At the very worst, the ACF has made the intent of an objectionable law more clear, but they hardly seem to be breaking new policy ground.

[1]: Sadly, it's rather typical of current discourse to conflate "X is bad for you" with "you have no choice but to abstain from X." One can mark this down to health fetishism, a desire to live forever, some form of neo-puritanism, but whatever the motivation it's still a faulty form of reasoning.

April 24, 2006

Big Gay Al's Big Gay Tax Shelter: Arguing for Gay Marriage Through The Tax Code

(My apologies to South Park for the title.)

Here's a thought: would conservatives really support the Federal Defense of Marriage Act if it had a multi-million dollar price tag?

I'm sure some would. But if the FDMA could be made costly, more of those conservatives who don't care who you sleep with so long as the bed isn't taxed might be willing to stand up and tell their socially (and often sexually) obsessed brethren to sit down. For liberals looking to work with a few strange bedfellows, the strategy should have some appeal. The question is, how do you make a definitional statute too expensive to support?

Two words leap into my mind: tax arbitrage.

This rather lengthy post (continued after the jump) is a summary of a project I’ve been working on for a few weeks: the creation of a tax shelter that could be used by homosexual couples in long-term relationships. The shelter’s primary purpose would be to convince conservatives that failing to give legal recognition to the reality of homosexual relationships comes at a real price, and that this price may be too high to pay.

(Disclaimer: The idea below is very much a thought project: I'm putting forward these ideas as an academic exercise and perhaps to spur conversation among activists. My readers who are familiar with split interest tax shelters are highly encouraged to comment, as I'd like advice on how far to run with the idea. If there's a potential essay or article in this, all the better. But I’m not suggesting anyone actually try this, certainly not without the help of a trained tax lawyer. Obviously, what follows is not legal advice.)

The Premise
Very little has been written about using the FDMA to abuse the tax code, but it seems a fruitful avenue of exploration. A search for "defense of marriage act & tax shelter" on Lexis today gave me a single hit. The more permissive "defense of marriage act & 26 U.S.C." (the latter being the section of the United States Code that deals with taxes) yields 19 results, but they all seem to concentrate on the tax advantages of marriage forbidden to same sex couples. SSRN contains two articles that come close to the issue. Theodore Seton's The Assumption of Selfishness in the Internal Revenue Code: Reflections on the Unintended Tax Advantages of Gay Marriage discusses various tax advantages that a homosexual couple might exploit for their own benefit, but its focus is almost solely descriptive. On the other hand, Anthony Infanti's Homo Sacer, Homosexual: Some Thoughts on Waging Tax Guerrilla Warfare suggests that homosexuals might stage tax protests by attempting to file joint tax returns en masse, but focuses on civil disobedience more than tax exploitation.

However, these articles hint at the greatest asset that same sex couples possess: love. When it comes to tax law, many clauses of the Internal Revenue Code positively discourage love--or at least anything that allows for cooperative behavior in the face of the tax collector. Love tolerates very few arm's length transactions, and yet the FDMA requires the tax man to say, "No, no love here! These two men, these two women, they have nothing to do with one another!" Certainly, an activist can capitalize on such willful blindness.

The Objective
To my mind, the ideal political tax shelter combines three qualities. First, the amounts of money involved should be large enough to force FDMA proponents to sit up and take notice. This immediately poses a significant obstacle for a homosexual tax shelter: simply put, there aren't that many homosexuals, and only a foolish strategist would count upon even a small minority of them entering into a complicated tax scheme. Hence, my plan requires looking further than the tax dodges that Seton proposes. The ideal political tax shelter is corporate, not personal, leveraging arbitrage opportunities from a homosexual couple with the sheer size of a business entity.

Second, a couple engaging in this kind of tax shelter should not benefit particularly handsomely. My sense is that the risk of political backlash is higher were gay couples to make large amounts of money—or evade massive amounts of tax—through the exploitation of the tax rules. Rather, I would suggest that the funds taken from the public fisc should be channeled towards large corporations who offer health and other benefits to same sex couples. [1]

Finally, the shelter must rely to the greatest degree possible on the lack of legal recognition of same-sex couples. Not only is this focus necessary for the political punch of the program, but as we will see, the defense of the plan depends upon the intransigence of the Federal Defense of Marriage Act.

The Statutory Background
I hope my more legally-aware readers will forgive a quick stroll through the statute books for the sake of non-lawyers. First, there's the Defense of Marriage Act, enshrined near the front of the Code at 1 U.S. §7:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

(emphasis mine) In other words, no I.R.S. agent in the land can look at Steve and call him Adam's wife. The mighty Internal Revenue stands impotent before Representative Bob Barr's baby.

Now take a look at 26 U.S.C. §167(e)(1), a part of the Code which limits the deduction of split-interest transactions:

(e) Certain term interests not depreciable.
(1) In general. No depreciation deduction shall be allowed under this section (and no depreciation or amortization deduction shall be allowed under any other provision of this subtitle) to the taxpayer for any term interest in property for any period during which the remainder interest in such property is held (directly or indirectly) by a related person.

(emphasis mine) For the moment, leave aside what this section actually does. A little further on, in §167(e)(5)(B), we're told that "related person" has the meaning described in §267(b) or (e). So what does §267(b) have to say about related persons? Well, if we assume that we're not talking about trusts, corporations or (business) partnerships, it really only tells us that related persons are "[m]embers of a family, as defined in subsection (c)(4)". Which finally leads to:
The family of an individual shall include only his brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants

(emphasis mine) Where does this lazy walk down statutory lane get us? Well, it appears as an initial matter that so long as a homosexual couple is not otherwise related under §267(b) or (e) (i.e. they're not in a business partnership), the IRS cannot consider them related for purposes of §167(e).

A First Pass At A Shelter
So why does this matter? As is obvious from the face of §167(e)(1) (added to the Code in 1989), the depreciation rules can be manipulated by related parties to defer taxes. For instance, suppose that a father purchases shares of stock for $1,000. He gives the shares to his daughter, but retains the right to the dividends for a period of ten years. The present value of the dividends is $600. [2] Under the depreciation rules in §167, the dividend stream is now a depreciable asset. So long as the returns are lower than $100 (or even more if the dividends qualify for more than straight-line depreciation), this will generate a loss for the taxpayer that he can offset against other income.

This strategy would be a loser in an arm’s length transaction. Sure, the father can defer some income, but he’s out $1,000 in the first year. The assumption, however, is that related parties will be able to use their resources for the benefit of each other in ways not fully caught by the tax laws: has the father really ‘given’ anything away to a close relative? And this is a rather simple transaction. For slightly more complicated attempts at abusing split-interests in the tax code, see Paul Youngs, Note: The Taxation of Split Interests: How Are They Treated? How Should They Be?, 76 U. Det. Mercy L. Rev. 165 (1998).

I’ve concentrated on using split-interests in constructing my tax shelter for two reasons. First, §167(e)(1) cannot be applied to a same sex couple. Second, a shelter based on this section seems to be easily scalable. The trickier bit—and the part I’m still struggling with—is how to transfer the tax benefit available to the couple to a corporation. (Reader suggestions are very welcome.) One possibility I’ve been considering involves a bond issue from a major Corporation to non-spouse A, who gives the bond (but not the right to dividends) to non-spouse B, who in turn sells an option on that bond back to the corporation. Perhaps the Corporation can issue the bond at lower than market interest, thus appropriating A’s tax benefit. This is hardly ideal: the structure is of limited scale and might run afoul of the sham transaction rules. Most of the other plans I’ve kicked around thus far—creating an incorporated entity controlled by one partner, possible agricultural investments allowing for depreciation of land—also possess considerable weaknesses. Obviously, the construction of the tax shelter itself will be the “heavy lifting” section of any article that springs from this post. I’m still working on it, but if any of my readers have suggestion for shelter creation, I’d be interested in hearing it.

Tentative Conclusion
As mentioned above, I’ve not yet finished an outline of a shelter that meets my three ideals. Nevertheless, I sense that the stumbling block is more my inexperience—they don’t teach you how to write shelters in law school—than any particular theoretical limitation. While any plan would have to be injected with enough economic substance and business purpose to survive judicial scrutiny, tax shelters based upon the FDMA have one immediate advantage: it’s impossible to argue that Congress didn’t intend to limit the scope of the word “spouse” throughout the U.S. Code. Most tax shelters take advantage of ‘unhappily drafted’ portions of the Code and the law of unintended consequences, but the FDMA isn’t ambiguous at all: it does exactly what it says on the tin.

In other words, progressive activists and advocates employing this type of tax shelter could enjoy a number of relatively unfamiliar frissons. First, they would get the pleasure of watching social conservatives squirm between allowing homosexuals to manipulate their tax liability and admitting that maybe this ‘spouse’ word should have a few multiple meanings. Second, they might enjoy widening the rift between social and fiscal Republicans by reminding them that purely symbolic legislation can have unintended consequences. And finally, they might even get giddy spouting Scalia-esque pieties on the importance of a literal reading of statutory text.

[1]: A particularly cunning shelter designer might create a structure that approximates for the couple any tax benefits that might accrue were the federal government to recognize same-sex relationships. The contours of such a plan, however, are well beyond both the scope of this post and my skill.

[2]: I have shamelessly stolen taken this example from one of Prof. Tax’s past exams. The exam question was actually the inspiration for this idea, so I hope it's taken as a sort of homage.

April 18, 2006

Reason I'm Not A Federalist #37,987. . .

. . . the frequent (though not universal) "us and them" mentality within that part of the conservative movement. Take, for instance, Prof. Bainbridge today writing on political affiliation and hybrid vehicles:

Do "crunchy cons" drive Priuses? Probably. Personally, "I think that cars today are almost the exact equivalent of the great Gothic cathedrals: I mean the supreme creation of an era, conceived with passion by unknown artists, and consumed in image if not in usage by a whole population which appropriates them as a purely magical object." Roland Barthes (1915–1980), French semiologist. “The New Citroën” (1957). In the language of that wonderful metaphor, the decision to buy a Prius is not unlike an agnostic choosing to visit one of the great Gothic cathedrals. You have chosen to be in but not of the experience.

Bollocks to that. I'm about as uncrunchy a conservative as you can get, and yet if it's at all practical I intend to buy a hybrid after graduation for use during my clerkship. I'm not trying to save the earth, and I suspect that the increased cost of the vehicle will vastly outweigh any potential fuel savings (especially since I wouldn't be buying an SUV).

I want to buy a hybrid so that I can take it apart. It's a new technology, and just as I like opening up a server and looking at the guts or going through Moveabletype's code and seeing what makes it tick, I want to get my hands dirty searching through the pieces. [1] I drove a hybrid over spring break, and it performed like a fairly funky small car that happened to be much more quiet in city driving.

Of course, a curiousity about the construction of an automobile means that folks like Bainbridge will feel free to question my political views. Conservatives like that are happy to fit people into little boxes. It's that mindset that makes me unwilling to join the Federalist Society: conservatism not as a philosophy, but a minority lifestyle choice. (One of my liberal friends once joked, "Sort of like emo kids in high school?")

I was reminded of this at the 2006 Student Symposium, when the banquet's keynote speaker, John Fund of the Wall Street Journal, stood up and announced that the crowning achievement of the Society for the last few months, the sign of its influence, was the defeat of the Miers nomination. If there had been any debate in the Federalist Society on Miers, Fund didn't recognize it.

Ironically, diversity actually is one of the strengths of the conservative movement (and in theory, of the FedSoc), as well as one of the things that makes it the most interesting. The litany of authors and speakers with 'you can't be a real conservative if . . .' pieces is pretty depressing.

[1]: Speaking of trendy products that are fun to take apart, if you've got an old iPod you're not using, they're fairly fun to disassemble. (See link for images.) Of course, such things lead to iPod chargers in Altoids tins. . .

(A few small updates made a few minutes after publication, mostly to get the link to Volokh's piece)

April 17, 2006

For You 3L Women About to Make Big Bucks

Netflix for Handbags. I'm so not the target market for this service.

April 16, 2006

Apple + Lawyers = Little Girl's Tears

This story explains why so many people in marketing sincerely despise lawyers. Click through to the story, it's worth a laugh.

The legal need behind Apple's policy of not accepting unsolicited product suggestions is, of course, perfectly clear. On the other hand, I'd think it a good rule of thumb that whatever a company's legal needs, you should be able to meet them without stumbling on public relations landmines. The comments thread on Apple Insider flies between two extremes--roughly, "why should a 9-year-old writing a public company expect anything but the adult-world response" and "have a heart, people"--but I don't think the answer is really all that difficult. I've worked in a correspondence shop (that is to say, managing lots of form-letter replies), and it's common sense to write towards your audience. If you're talking to children, being simple and positive is the order of the day.

I'm coming to realize that this isn't a lawyer's first instinct. But replying to a third-grader with legalese from a corporate counsel isn't necessary and there's no profit in it.

(Article updated and expanded a few minutes after it was first published)

April 14, 2006

Tax Question

So I'm sitting in Saurin Parke Cafe, the scattered detritus of my financial life scattered about me as I attempt to do my taxes. Right next to me are four members of the Revolutionary Student Movement, or the Movement of Students for the Revolution, or the Students Revolutionary Front. Who abuses the English language with phrases like "stages of patriarchal capitalism in its movement towards imperialistic war" anymore?

Then again, maybe Martin's right and I will be first up against the wall when the revolution comes. Trust the revolution not to come before I've paid my income tax.

If I get another beer to get rid of the IRS-and-capitalist-dialectic-induced headache, can I put it down as a preparation expense?

April 12, 2006

I will never be this flash. . . .

Through an English friend of mine, today I learned about the art of sabrage.

Put roughly: how to open a bottle of champagne if the only tools you have are a very large pig-sticker, no self-consciousness and little fear that fundamental forces of physics will fail you at a key moment. Actually, it sounds quite impressive.

April 09, 2006

Reflections on an Empty Classroom

I really need to settle down and get to work (less than 20 days to Securities!), so despite the fact that it's a beautiful sunny day, I'm sitting in one of Columbia's larger lecture rooms trying to do four days work of studying in an afternoon. I've spent hours--when you total it up, probably months--in this room, but only now that it's empty can I really appreciate some of the strange background noises.

For instance, I just realized that the ghostly murmur coming from behind me was the sound of air escaping through one of the cracked doors. It seems that there is some difference in air pressure or temperature between the large lecture theater and the hallway outside that causes a significant and noisy breeze.

I'm surprised it took me three years to notice that.

April 05, 2006

Pre-Emptive Warning: TYoH May Close For Business Temporarily

I just received the following from my webhost:

Our sys-ops have had to stop a CGI script inside your folder path [path removed]cgi-user/mt/mt-tb.cgi. This script was majorly degrading performance across our entire hosting cluster by using up all the CPU time on every machine. . . . Please do not attempt to use this script until it has been fixed so that it does not hog power on the servers. If this situation arises again, especially if a duty engineer has be called out of hours, you may be liable for charges from Gradwell.

Looking at what they have recorded for my bandwidth usage, this seems fair. I can't figure out why, but usage seems to have jumped around 700% in March. I guarantee you that this isn't because of increased readership.

The long and the short of it is that this is either a problem with the MT-Blacklist Connector plugin (I installed it last month) or the result of some serious spamming. (My trackback spam is up quite a bit.) I can't see that there's a huge increase in actual readership in the last few months, so that's not the problem. Then again, spamming hasn't gotten that much worse either. Either way, I simply don't have the time to deal with it, so if the issue gets worth, I'll just have to take the site down.

As some of my readers know, I also host Chris over at Law Dork. Even with this strange bandwidth situation, I have enough to keep his site going (I hope). With any luck, this won't affect him. In the meantime, I'm shutting down my trackbacks, and if things don't improve, comments shortly thereafter.

Update: Actually, the jump in bandwidth seems to have occurred last November. I guess my host has been pretty tolerant.

Update II: OK, this officially beats my pair of jacks. I can't see that there's enough spam to cause the huge bandwidth issues occurring here; on the other hand, I know my readership hasn't grown that much. I'd think maybe I installed some script that's hogging huge amounts of bandwidth, but I can't think what that might be. Any help my readers can give would be appreciated... comments are still running.

Update III: I've made a few minor changes that, hopefully, will solve the problem. Apparently about 20% of my traffic (and most of my bandwidth) are going directly to comments and trackback pages. Hopefully this will fix the issue.

April 03, 2006

Interesting, From Amazon

No one even bothers to point out anymore that when a classmate sends "LOL" in an instant message, they aren't really laughing out loud. On the other hand, I nearly had an embarassing outburst in securities this morning when Amazon sent me this email:

[placeholder for winning team] Wins the NCAA Tournament!

Congratulations, [placeholder for winning team]! As someone who has purchased sports products from Amazon.com, we thought you should be the first to see our selection of NCAA championship products.

In case anyone cares about Amazon's pick in March Madness, you only find out by viewing the HTML version of the email, which boldly announces that "UCLA Wins!" I imagine Professor Bainbridge will be pleased.

I can't recall every having bought sports products from Amazon anyway.

April 02, 2006

Roundup of Posts on Olati Johnson

Surprisingly, there's still some posting going on regarding an New York Sun editorial attacking Columbia's hiring of Olati Johnson. (My post on the subject is here .) For those keeping track, here's the back and forth:

  • The original New York Sun editorial.
  • An American Thinker post supporting the Sun's view.
  • A De Novo post by Columbia-blogger PG arguing that allegations of Lee Bollinger's influence are untenable.
  • Dean Schizer responds to the New York Sun (via The Right Coast).
  • Professor Bainbridge updates his post with new information from Columbia professor Avery Katz. Katz specifically argues that CFIF could not prove that the memo taken from the Senate Judiciary Committee's server was reflective of "what actually happened in Kennedy's office." That's an intriguing assertion, and one I hadn't heard before. It makes sense as a possibility: a draft taken off a hard drive may never have been printed. [1] (A similar letter from Prof. Katz appears at the Right Coast, along w/ Dean Schizer's letter.)
  • Finally, the author of the original editorial, Curt Levey, responds to critics at the blog of the Committee for Justice. (This blog even got a humble mention, which explains one uptick in my server logs.)

Near as I can tell, that's it. Much like PG, I still find Levey's original allegations unlikely in the extreme, and without further evidence they can pretty much be relegated to the realms of conspiracy theory.

Indeed, if there's any concern over the appointment, I'd think Levey's looking in entirely the wrong place. The one at least somewhat undisputed allegation [2] to come out of Memogate involved Ms. Johnson forwarding an email misdirected from a Republican staffer to Democratic colleagues. As I mentioned at the time, I'd not think such a thing was illegal under the CFAA (though that statute is notoriously broad-reaching), and quite probably it doesn't constitute an ethical breach. Yet let's face it: capitalizing on an opponent's error in a highly partisan environment may be legal, ethical and even expected, but it doesn't pass the "do unto others" test. Were I a 1L again and assigned to Prof. Johnson's class--and a grade very important to law review, jobs and my future thus sat in her hands--would I feel comfortable, particularly were I a more outspoken conservative? I don't know. [3]

That, however, is a relatively minor concern. Indeed, if you want to mark such worries down as grade paranoia in a law student, you must realize that it's not half so off the ranch as Levey's original contention: that any offer from Columbia is inevitably tainted by Lee Bollinger, and that the faculty is inherently conflicted by his presence. [4] There's is no evidence the university president was involved in the decisionmaking, and reason to suspect he wasn't. Such shenanigans would require the silent and complicit consent of any conservative in the faculty, the staff and even in the student body. I find it close to incredible that if Johnson were appointed for any reason other than her scholarship--by all accounts excellent--Columbia students would hear no gossip, but learn it first in the unbridled speculations of a New York Sun editorialist who provides not a shred of documentation to back up his words. Heck, the Sun can't even drag the reporter's favorite playmate, the 'unnamed source,' out of the shadows!

This kind of "hit piece" in which a reporter rambles about appearances of impropriety and murmurs darkly about possible payoffs does nothing but wound the credibility of the reporter. Maybe Levey's co-blogger John Lott could explain how this is just as true when attacking professors as it is when one targets Justice Scalia?

[1]: Prof. Katz's argument with regards to the state ethics committee seems a bit strained: "In particular, the complaint that CFIF filed in New York state, the jurisdiction where Olati Johnson is licensed to practice law, was summarily dismissed on the merits -- a fact not mentioned in the Sun editorial." For the record, the ethics complaint against Republican Manuel Miranda, the other New York lawyer in Memogate, seems to have been dropped as well. I'm reminded about the humorous/apocryphal advice regarding how to guess on the MPRE: if asked what a lawyer is forbidden to do, never guess the option that seems least or most ethical. Is that really a guideline for what we want in professorial conduct?

[2]: One should take "undisputed" with a grain of salt here. I don't think I remember anything in that confrontation that wasn't disputed to some degree. I'm certain that I don't have all the facts.

[3]: For my liberal readers who find such a thought unthinkably implausible, I invite them to imagine that their 1L Con Law professor was the aforementioned Manuel Miranda. Then again, Prof. John Yoo seems to get along well enough at Berkeley. Well, okay, maybe not, but I can't find any Boalt students blogging about grading concerns.

[4]: Levey writes:

"Moreover, as my op-ed notes, the faculty should have thought about the message it was sending to Columbia's law students concerning ethics and conflicts of interest."

I think the message was right on target. Even assuming the Memogate documents were completely and utterly true in every way, Levey points to nothing that shows President Bollinger had anything to do with them (or even that he knew of them). I'm honestly befuddled at how Levey thinks we're being mislead about conflicts and ethics. I can't see him quoting a canon or a rule.

It's touching that Levey is worried about my education, so let me put him at ease: I do know that we don't get to make up conflicts rules for our convenience as we go along. There endeth the lesson.

Giving The Devil His Due

Bad Timing (1)
Droitfemme wrote: I am right there with you -- three ... [more]

That Dreadful Bush, Tightening the Thumbscrews (0)
Big Gay Al's Big Gay Tax Shelter: Arguing for Gay Marriage Through The Tax Code (3)
cardinalsin wrote: New Labour are regarded as being hi... [more]

Reason I'm Not A Federalist #37,987. . . (2)
FR wrote: http://www.wacotrib.com/news/conten... [more]

For You 3L Women About to Make Big Bucks (2)
asianprovocateur wrote: Oh my freaks, this is AWESOME. ... [more]

Apple + Lawyers = Little Girl's Tears (0)
Tax Question (0)
I will never be this flash. . . . (1)
Dave! wrote: I saber champagne with a chef's kni... [more]

Reflections on an Empty Classroom (2)
A. Rickey wrote: Nostalgia for JG 106? You must thin... [more]

Pre-Emptive Warning: TYoH May Close For Business Temporarily (4)
A. Rickey wrote: Sadly, Paul, it looks like the m... [more]

Interesting, From Amazon (1)
Katherine wrote: my boss thought "lol" stood for "lo... [more]

Roundup of Posts on Olati Johnson (0)

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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

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