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June 30, 2006

Accessorize Your BarBri™

Dear Wormwood:

Right now, a virtual cornucopia of study materials threatens to overwhelm me. My bar review course has provided me with seven weighty tomes, the vast majority of which I shall never read. I've half-heartedly attended six weeks of courses, becoming ever better at Freecell with each passing day. And yet at every turn I seem confronted by one more product designed to prey upon my insecurity. More multiple choice questions? I should sign up for a two week cram course. Thinking of driving up to NY for the bar? Well, of course I need a set of study tapes. Maybe there's a podcast or two out there I could purchase? Not since childhood, dear Wormwood, have I been so set upon by marketers insisting that I accessorize. Any moment now I expect to see this offer appear in my email:

Dear student:

It's less than a month to that all important exam, and we know you want every possible advantage. Make sure that after your review course ends, you keep yourself free of distraction by leasing your very own BarBri Dream House™. The Dream House comes complete with six main rooms (one for each of the multistate subjects!) and a master bath with a full set of your state bar's reading material for those "quiet moments." But of course we know that all your moments should be spent in quiet contemplation of the bar examiner's plans for you, and that's why the doors of the BarBri dream house lock behind you from the moment you enter until the last possible moment (calculated at our BarBri headquarters) that you might leave to for the testing center. The walls of the DreamHome have been lined with special radio-absorbing polymers to drown out any distracting wireless internet signals that might happen into the area. And our special BarBri "Little Lawyer" StudyPhone™ connects you immediately with a study advisor--whatever number you dial!

As comfortable as the Dream House is, though, we know that sleep will come ever harder in the next few weeks. That's why we encourage you to make use of our Barbri StudyBuddies™, especially in areas where you think you might have difficulty. For instance, if you're struggling with Con Law, why not snuggle up at night with Ermin Chemeruxpin? This fully animatronic plush companion comes equiped with audiotapes to ensure you have plenty of dormant commerce by the day of the bar.

And on that all important Exam Day, when the doors of the Dream House spring open, what better way to get to your testing location than in your own California Barbri Convertible™? Not only will you arrive in stylish blue and yellow (to match your review books!), but we'll provide your own driver so that every second that you're stuck on the highway can be productively used reviewing the peculiarities of your state's no-fault insurance laws!

Yes, such things these dayse are my nightmares made of, dearest Wormwood. Though I suppose I should be thankful for small favors. I can't imagine the convertible ever coming in a box inscribed with those horrifying words: "Some assembly required."

June 26, 2006

Why I Have A Hard Time Respecting Amnesty International

Prof. Yin highlights one of those wonderful articles by concerned liberals (in this case Anna Quindlen) that causes a moment of pause. I have to remind myself that there are quite sensible people who object to the death penalty, and they don't all offer drivel as arguments. It's worth listening to them.

I find this tough to remember because death penalty abolitionists have some pretty staunch spinmeisters in their corner. Justice Scalia's concurrence in Marsh today challenged some of the key figures one hears, but for my money Amnesty International takes the Arachne Award for the Service of Spun Statistics to Public Policy. For instance, it's hard to find a death penalty press release that doesn't contain some variation of the statement, "In 2005, 94 per cent of all known executions took place in China, Iran, Saudi Arabia and the USA."

That sounds pretty damning, doesn't it? But what if I told you that (based on the same statistics), the U.S. came in fourth place and counted for only 2.8% of all executions in 2005? That's a bit less impressive. On a per capita basis, Singapore's hangmen are busier by almost a factor of ten? (OK, the figures are old, but it's still a high multiple.) The big deal, of course, is China, which accounts for over 80% of all executions worldwide.

Amensty choses the "top four" cut off, of course, not because the U.S. is exceptional among countries retaining the death penalty (that would be China), but because the United States is fourth. Amnesty often precedes the line I quoted above with, "As in previous years, the vast majority of executions worldwide were carried out in a tiny handful of countries." True so far as it goes. But the vast majority of executions are carried out by a single country, and the rest are just frosting on that particular cake.

This spin also allows people like Quinlen to blithely write:

Hardly any other civilized place does this anymore. In the past three decades, the number of nations that have abolished the death penalty has risen from 16 to 86. Last year four countries accounted for nearly all executions worldwide: China, Iran, Saudi Arabia and the United States.

Quindlen's list of "civilized places" excludes such nations as India, Japan, South Korea. Last I checked, I considered those civilized countries. In international culture sumo, Japan's certainly in the same weight class. I suppose Quindlen might consider Korea uncivilized, but any definition of "hardly any" that includes India needs mathematical help.

Despite being flat-out deceptive, Amnesty is happy to push these little statistics, and commentators like Quindlen trot them out like respectable toy poodles. The trouble is that once one learns how the numbers have been massaged, it's hard not to judge the rest of the abolitionist claims with some skepticism. Hundreds of exonerations? Well, were these innocent people or are we trying for large headline numbers by including procedural faults?

I'm sure Amnesty's heart is in the right place, which is normally the excuse one hears for them. But it's hard to think that when the "best of intentions" are promoted by rather shady means.

Godwin 1, Leiter 0

Some will probably interpret this column as a defense of Ann Coulter, so let me be clear: she's pretty far beyond the bounds of reasonable defense. My only hope is that a third party does arise in the next election.Perot's party drew Pat Buchannan away from the Republicans, and I can hope lightning strikes twice, right?

But the fever-swamp left of the blogosphere is all a-titter today over this little quiz, which purports to challenge visitors to distinguish between the words of Ann Coulter and Adolph Hitler. It gets a favorable link from Brian Leiter, who has taken a brief vacation from his blog-sabbatical to highlight it.

It's a bit odd to see a law professor trumpeting this piece so loudly, though. At least in theory, we legal folks are supposed to care about correct citation, honest usage of quotations, etc. A brief look at this "gem" of a quiz reveals that it's not entirely forthright. I think it gets the Coulter quotations right, but the Hitler quotations suggest that the most evil man of our time was obsessed with liberals and America. For instance:

We must study this vile liberal technique of emptying garbage pails full of the vilest slanders and defamations from hundreds and hundreds of sources at once. . . .

One might legitimately wonder why Hitler took a break from anti-Semitism to start griping at (presumably) the Labour Party. This makes even less sense:
As long as millions of the bourgeoisie still piously worship their liberal democratic press every morning, it very ill becomes these gentlemen to make jokes about the stupidity of the 'comrade' who, in the last analysis, only swallows down the same garbage, though in a different form. In both cases the manufacturer is one and the same liberal.

Why was Hitler suggesting that the bourgeoisie were worshipping a liberal democratic press? Or if he was, would it have meant the same thing as "liberal" does today? Strange yet, what was Hitler doing writing about Americans? For instance:
Here the liberal's procedure is as follows: He approaches the worker, simulates pity with his fate, or even indignation at his lot of misery and poverty, thus gaining his confidence...With infinite shrewdness he fans the need for social justice, somehow slumbering in every American man, into hatred against those who have been better favored by fortune. . . .

Hence it is that at the present time the liberal is the great agitator for the complete destruction of America. Whenever we read of attacks against America taking place in any part of the world the liberal is always the instigator.

Hitler was particularly concerned about attacks against America? Did I miss the part about Nazi outreach programs in my history class?

My readers being a pretty clever lot, they've by now figured out the ruse. Hitler actually said very few of the things attributed to him in this quiz. If you substitute for "Jew" or "Jewish" for "liberal," and "Aryan" for "American" and "Germany" for "America," these are all passages from Mein Kampf. But I'm sure my readers are a cleverer lot than even that, and are now asking, "OK, Tony, but what's you're point? What's all the lead up about?"

I bother pointing this out for two reasons. First of all, looking through Technorati I didn't find that anyone had pointed out the obvious: the "quotes" from Hitler weren't any such thing. Secondly, the alterations are important, because once they've been pointed out, the whole little bubble becomes little more than another good argument for Godwin's Law. What made Hitler evil wasn't his habit of rhetorical excess, but the means to which he put it. Comparisons to Hitler hold their force precisely because they imply that the subject of comparison is similarly odious for similar reasons. And yet "liberal" is a policy position, not a race or religion, and hence the comparison is not particularly appropriate. For instance, consider the last "Hitler" quotation I gave above. The quiz places it, presumably for emphasis, right next to this Coulter remark:

It was a crushing defeat for the liberals, not because liberals were necessarily Communists, though many were, but because they had been morally blind to Communism...Liberal elites defended traitors. In response to the Soviet threat, the Democrats consistently counseled defeat, supplication, and retreat.

Now, both arguments may be (indeed are) hyperbolic. And both are wrong: Jews aren't trying to destroy Germany, nor Democrats purposefully undermining America. But Hitler's comment has an additional layer of repugnant slime: it is accusing a religious and ethnic group of cohesive behavior to achieve political power, the Zionist conspiracy. Whereas the Democrat Party isn't a conspiracy if it's attempting to gain political dominance. Heck, that's what it's supposed to do. And it's that bit of the rhetoric (and his willingness to act upon it) that makes Hitler vile and comparison to him such an insult.

On the other hand, hyperventilating columnists can be found by the dozen. It wouldn't be difficult, following the same rules of engagement, to doctor a few passages of Mein Kampf and come up with a "Hitler or Huffington Post" quiz. But to do it would be silly, wouldn't say much, and the proper role of a professor in response would be to say so. Were he a law professor, he might also point out that honest argument demands integrity, especially in the use of quotations.

Update: After some conversation, Prof. Leiter has now updated his post to recognize that the "quotations" are nothing of the sort.

June 25, 2006

Free time

Sadly, after I become a lawyer it's unlikely I'll have the time to do things like this. (In Japanese, but you don't really need to understand it.)

June 24, 2006

How You Know You've Been Studying for the Bar Exam Too Much

You watch Dangerous Liaisons with your girlfriend, and immediately after it finishes this pops into your head:

The Marquise de Merteuil brings a defamation lawsuit against (a) the estate of M. Valmont and (b) the Chevalier Danceny. Recently, it seems, the Marquise has been taken off the most fashionable guest lists and is loudly hissed when she attends the opera.

Both defendants seek to raise a defense of truth. The Chevalier wishes to take the stand and testify that after he had fatally injured M. Valmont in a duel, the latter handed him a tied bundle of letters and exclaimed:

I am dying because I would not believe you. A word of advice, which of course you may ignore, but it is honestly intended, and a request.The advice is: be careful of the Marquise de Merteuil. . . . I must tell you in this affair, we are both her creatures as I believe her letters to me will prove. When you have read them, you may decide to circulate them."

He will further testify that the letters involve a reprehensible series of wagers between the deceased M. Valmont and the Marquise.

Which of the following motions or objections will be overruled by the court?

I. An objection to the statement of M. Valmont, because it constitutes a dying declaration.

II. An objection to testimony on the contents of the letters, unless the Chevalier further states that as the blood on them dried they were rendered illegible.

III. A motion for summary judgment, unless the letters contain accusations of unchastity in a woman or the commission of a crime of moral turpitude by M. Merteuil.

IV. A motion to dismiss because there is no way an American court has ever managed to get jurisdiction over this dispute.

(A) I only.

(B) I and II.

(C) III and IV.

(D) Tony needs a beer.

I will not attempt an answer.

June 22, 2006

And he wonders why he gets called an elitist . . .

Prof. Bainbridge displays an uncommon lack of class today when moaning about a practice with which I am similarly annoyed. Writing about folks who park SuperSized SUVs in spaces reserved for diet-sized cars, he gripes:

I was standing there thinking, "only somebody from Texas would be dumb enough to think a GMC Yukon qualifies for a compact parking space," . . . ... but then one of my fellow Californians pulled a (nearly) full size truck into the compact space right beside the Yukon.

When I shuffle into the parking garage at GW every morning, the spots marked COMPACT CAR in large black lettering are commonly filled with Chevy Escalades, Toyota Highlanders and other such gargantuan monstrosities. I've yet to see one with a Texas license plate.

Certainly the practice is obnoxious, although I must also admit that given the number of SUVs in my lot, it's a bit strange the parking garage hasn't redrawn the lines to accommodate more small trucks. But there's no reason--nor has there ever been any--to suspect that only Texans are blase enough about the convenience of their fellow citizens to engage in such behavior.

(Come to think of it, I never saw an SUV parked in a compact space when I lived in Texas, but I can't recall ever seeing anything but a full-sized parking space.)

Radicals in (Professorial) Robes

UPDATE: Edited to spell Prof. Sunstein's name right. I always overgenerous, adding an extra "n" in his name.

Over at Concurring Opinions, Prof. Eric Muller has gotten "steamed" (his words) at right-wing pundits insisting that "federal courts are in the grips of 'loony leftists,'" and wonders Where Is The Academic Truth Squad?. The very word "truth squad" sets my teeth on edge, suggesting as it does a cadre of inquisitors armed with infallible writ. But Prof. Muller's point seems to be that left-wing professors have stuck to writing law review articles and are not engaging with popular opinion. Thus, popular opinion holds the "false" view that courts are run by the lunatic left:

The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. . . . We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public.

As Will Baude correctly points out in the comments, Muller's complaint seems empirically suspicious. Liberal law professors write outside the shackles of law reviews and show up on the air waves. And if Cass Sunstein's anything to go by, they've got their own batch of distortions. (Sunstein: we Snidely Whiplash Conservatives have to have our "veil of extremism" ripped off, and amongst ourselves mutter about restoring a Constitution in Exile.)

On the other hand, Prof. Muller's right on two points. First, the judiciary, however left-leaning it may or may not be, is not full of "loony leftists." Secondly, the narrative of Muller's Truth Squad has hardly captured the imagination of the American people, although there is a vocal literature.

Why would this be? For one thing, the left-wing "loons" have some actual, tangible victories on their side. States may no longer criminalize homosexuality, nor may they execute those below eighteen. A state constitutional amendment as to homosexuality can be struck down (so long as it's a matter of bare "animus," whatever that means). The state can confiscate property from one individual and sell it to a developer if it's economically more valuable. And of course, despite the chorus that have been screeching that abortion is "under threat" since the day I was born, women are still walking to the clinics.

Compare that with Sunstein's "Radicals in Robes." At the height of the Rehnquist Court, Roe was replaced with . . . Casey. Two of the "revolutionary" Commerce Clause cases, Lopez and Morrison, indeed invalidated small parts of acts of Congressional excess. But some provisions of those laws have been reinstated by Congress (with a bit more connection between the target activity and "commerce") and in any event there has been no move to broadly legalize beating up women or carrying guns into schools. It's enlightening that in a recent debate, Sunstein mentions barely any practical, enforceable victories by his "radicals." Instead he peppers Prof. Bernstein with the hoary question of whether he believes--as the "radicals" supposedly do--that the U.S. government should be able to discriminate on the basis of race or sex.

Grant Sunstein his argument: suppose I do believe the Feds should be able to prefer women in hiring over men. The idea that Congress may be constitutionally capable doesn't mean they should. And as a practical matter in 2006, it's highly unlikely that they'll be able to do so, nor that I'd vote for them to do so.

And thus the Loony Leftists meme has more legs than Muller's Truth Squad. The first narrative has some real drama, some actual meat to it. People may or may not do things based upon the words of the "Loons," as it were. The "Radicals" stuff is mostly phantasms and ghost stories.

Procedural niceties and theories of interpretation mean something to law school professors and die-hard originalists, but most of the "popular" culture is worried with pragmatic concerns. Is abortion legal, or can we ban it? Must we recognize gay marriage, or may we not? At that level the judiciary is radically to the left. Moreover, the rising tide of "right wing" jurists seems comfortably far away. I'll be quite happy to be the first against the wall when Sunstein's revolution comes. May I live so long.

June 21, 2006

Best Comment I've Heard So Far on the Carabell Case

My (non-lawyer) brother on the eighteen year battle between Keith Carabell and the federal government over whether he can build condominiums in a wetland area:

And they said I was daft to build a castle in a swamp . . . .

A quick search suggests that this didn't appear in any of the briefs in the case. Sad.

June 20, 2006

Strange Things Indeed

I know two or three formerly meat-eating vegetarians who really miss the taste of bacon. Apparently this is not uncommon. If you too have such a friend, you should introduce them to Aecht Schlenkerla Rauchbier. Although completely meat-free, it tastes like bacon in a big frosty mug.

I promise, this is much better than it sounds.

(If you're in New York City, you can try a bottle at the West Side Brewery.)

June 16, 2006

Stop Thinking Like A Lawyer

Law professors first and foremost teach their student to "think like lawyers," which in legal-land is this special way of cogitating foreign to everyone else. I either missed the import during law school--possible, I suppose, given my Fed Courts grade--or "thinking like a lawyer" is the same thing as logic, except you get to put "esq." after your name.

Thinking like a lawyer may be great when you're in front of a judge, but as University of Houston Professor David Dow shows in his New York Times editorial today, it may be distracting when one is considering politics. Prof. Dow suggests that death penalty opponents should put aside this pesky "innocence" topic and instead focus on the many flaws in our death penalty appeals process:

Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.

This is thinking like a lawyer, which is to say: show an unhealthy obsession with process. For many voters, if the prisoner did what the state said they did, they should be executed. The mere fact that the jury pool was somewhat different than it should have been, or that the defendant didn't get an extra bite at the appellate apple because their lawyer was negligent doesn't change the fact that the guilty man actually killed someone. So long as the public can be relatively confident in the verdict, then the fact that the machinery clinks a bit as it moves along isn't so important.

Of course, Professor Dow is selective in which process he obsesses over. Racial strikes on juries or incompetent counsel, of course, is critical, but res judicata or federalism concerns are . . . well, not really one of our deeply-held procedural values:

When the Supreme Court brushed aside Mr. Coleman's appeal 15 years ago, the justices said that a death row inmate cannot complain when his lawyer misses a filing deadline, because the lawyer is the agent of the client, and clients are responsible for the failings of their agents.

As a result of this syllogism, my client Johnny Joe Martinez was executed in 2002, because his court-appointed appellate lawyer neglected to file a proper appeal — a mistake he freely admitted to, attributing it to inexperience. When the Martinez case reached the federal courts, those courts, invoking the Coleman decision, said too bad for Mr. Martinez; the mistake of his lawyer was attributable to him.

With due respect to Prof. Dow, his client was not executed because of his trial lawyer's mistake. His client was executed because he knifed a man eight times over $25.65. The best argument on appeal I can find seems to come from here: that mitigating circumstances were not fully presented. A death penalty abolitionist who seeks to focus upon the process will be stymied by the fact that either federalism concerns or filing deadlines will seem secondary to most voters in the face of the relevant question of guilt. To a most non-lawyers, that question alone determines the justice (as opposed to the nicety) of punishment.

And there's some logic to this. Presume that the system is mostly working. Is it just for one murderer to die because his lawyer filed all the appeals properly, and yet another to live longer because his lawyer was incompetent? The best way to challenge that argument is to attack the presumption that the system is functioning within a reasonable margin of error, and even better, that it cannot. But that is precisely what Prof. Dow suggests not be done:

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

Prof. Dow's tendency to think like a lawyer is at its height here, particularly with that insidious word "our." Who is this "us?" Most of the principles that Prof. Dow mentions in his article aren't llegislatively-enacted requirements. Instead they're judge-made rules divined from various constitutional provisions, or what a layman would quite justifiably consider "loopholes." Some of these rules are good ideas, some of them arguable. Nevertheless, they're a weak support upon which to rest arguments of legitimacy ("our legal principles").

Further, focusing on process opens death penalty opponents up to charges of bad faith. Most death penalty opponents, while perfectly happy to point out the flaws in the system, are at heart not that interested in improving it. And Prof. Dow concedes that as a substantive matter, the system is pretty much working: most people executed did commit the crime for which they were convicted. Hence, the question can be asked: if we fixed these procedural problems, are people like Prof. Dow going to stop arguing for the removal of the penalty? If not, isn't the process just an excuse?

Focusing on innocence isn't a "distraction" for death penalty opponents, it's their strongest, best argument so long as they are faced with a polity that doesn't find state-sanctioned execution to be wrong in and of itself. The death of an innocent man, after all, is a tragedy. But the tragic tale of a misfiled appeal leading to a slightly earlier execution of a doubtlessly guilty man holds little traction beyond those who have been trained to think that "substantive due process" isn't a contradiction in terms.

(Hat tip Ann Althouse.)

Your Glimpse Into The Fever Swamp Left, "Move On, Guys" Edition

I wake up on yet another Friday and find that Karl Rove isn't indicted yet. As I've said before, I admire Rove, since he's got the best job perk imaginable. He can wake up in the morning, pour a glass of scotch, kick back and flip on I Love Lucy reruns, safe in the knowledge that anything bad that happens to the left will be blamed on him by the end of the day. He's Satan's own scapegoat.

(The latest lefty jibe for Rove is to call him porcine, but let's face it: the Democrats haven't been doing much to force him up off the couch and get the blood pumping recently. [1])

I'm hoping that Rove's getting a particular kick from the misery of his abusers. After Truthout.org "leaked" (note: good leak) a story of his upcoming indictment, they've watched their credibility ooze out the door. First the indictment was coming in three days, then three "business" days, then soon, then . . . Rove's lawyer Robert Luskin announces that Fitzgerald has no plans for indictment. The kicker? According to many of the "Plameologists" (and Truthout's latest defense), this may be their Dan Rather moment! Luskin may be lying about a letter from Fitzgerald!

Really, I'm not making this up.

Even those who don't believe it (including, for instance, Jane Hamsher) seem unwilling to call a spade a spade:

For those who are tempted to believe Luskin is lying about the letter he received from Fitzgerald — don’t. I know that irresponsible types will try to exploit people’s natural mistrust of Gold Bars and his willing to limbo around the truth, but lying about this goes well past what I think his limits are. I believed him when he said Rove had not been indicted, and I believe him now . . . .

(emphasis mine) What hogwash. This has nothing to do with limits. Let us assume for the moment that Luskin is the most amoral slime ever to crawl from the primordial ooze without a moral compass. (He's certainly not, and a seemingly reasonable fellow.) Standing in front of cameras and announcing you have communication from an investigator that doesn't exist is simply stupid. It's a good way to get disbarred if not indicted, and all the evidence to prove that you're lying is right in your opponent's hands. To buy Truthout's line, you have to feel Luskin lacks brains, not ruth.

This, however, stand's as Truthout's last defense for not "burning" its confidential sources (as they promised) if it turns out they weren't . . . well, "outing" the "truth." The jury's still out on the stupidity of Marc Ash, it seems.

[1]: Yes, things are bad for the Republicans, and we very well may get trounced in the next election. But almost every Republican wound is self-inflicted. It's like Mike Tyson getting into the ring with me and then, in an act of desperation, biting his own ear off.

June 14, 2006

D.C.'s Finest Taxi Service


Having graduated and started to live in the 'Burbs, it was pretty inevitable that I should get a used car. The bus service to our apartment is pretty lousy on the weekends, so any trip either requires an hour's travel time or one's own wheels. So I found a good deal on a used Scion xB. I know they don't look "cool," but these are great cars if you're a tall guy. It feels almost odd to be driving a smallish car but have three to four inches of headroom.

If any of my readers know someone living near Arlington and taking BarBri at GW this summer, please drop them a line and ask them to get in touch. The Scion seats four very comfortably (lots of leg-room), and if I were taking more than two people, the commute and parking would end up cheaper than public transport.

The Car

June 13, 2006

Why Not Just Ask The Real Question: Is It A Good Game?

Yesterday's DailyKos open thread ended with the curious tagline:

In the American theocracy, video games which allow you to kill those who don't convert to Christianity are apparently okay.

The comment is a bit odd because the story--from a Kos diary--actually reports that a conservative Christian lawyer is starting a lawsuit against the publishers of Left Behind: Eternal Forces. This would seem to suggest it's not OK. Indeed, the only bit of 'okay' any of the authors can dredge up is that major leaders of evangelical Christianity haven't denounced the game yet.

Meanwhile, the secular authors speaking about the game have become deranged:

Comparisons to Grand Theft Auto and other such video game titles are irrelevant to this discussion. It is not the level of violence that is at issue, but the Christian supremacy. This game immerses children in an environment that copies present-day New York, and indoctrinates and rehearses children in the mass killing of New Yorkers. This is religious indoctrination that forms children's identities and teaches that they must be prepared to do a deadly deed to defend their creed. That message is unAmerican and unChristian; patriots and Christians alike should oppose this game.

Wait a second... the argument against GTA III and its ilk is that what one does in a videogame (casual sex and car theft) provides a "message" that the same actions are OK in real life, and that it "indoctrinates and rehearses" children in violent crime. The message of Mr. Hutson (author of the above) is that games which involve "kill or convert" scenarios teach children that they must be prepared to do such things in real life. How is the comparison irrelevant?

Further, Left Behind: Eternal Forces has one thing going for it in the "don't do this at home, kids," stakes that GTA does not. I've not read the Left Behind books, but my impression is that they're apocalyptic in very a literal sense. The rapture has occurred, a bundle of the righteous have used their "Get Out of Perdition Free" cards, and the world is now caught in a last-days type battle. The anti-Christ shows a significant lack of political savvy and starts taking over the United Nations. (Management, unsurprisingly, seems to improve.) God, in the meantime, plays a more active hand in events, causing squadrons of planes to fall from the sky rather than attack Jerusalem, etc. In other words, in this setting the existence of the Almighty is not much more in question than the existence of sunlight.

This reminds one of the old C.S. Lewis comment about why we object to the persecution of witches: burning them is improper because we do not believe that they exist, not because those who actually aligned themselves with the devil to torment their neighbors would not be evil and deserving of burning. Similarly, if the question of the existence of a divine creator were settled, there's a reasonable argument that qualms about religious toleration can be set aside more lightly.

In this sense, the Left Behind game shares an ethos with just about every fantasy game that has a supernatural element. (In Dungeons & Dragons terms, any game that has clerics.) In the new Elder Scrolls: Oblivion, the demon Mehrunes Dagon may have a colorable argument for the ownership of the "real" world. Were the various characters making claims about a supernatural eminence who never appears, then religious toleration would have its place: seeming 'heretics' would be members of an alternate religion who ought to just found a political party. When gates to hell start popping up all over the place, however, the game sets aside a need for interfaith dialogue.

By contrast, GTA III actually takes place in a "realistic" world, and indeed a modern setting. Mr. Hutson's concern thus leaves out a required predicate: any "indoctrination" seems predicated upon the happening of rather fantastical events. If all Left Behind communicates is that in the face of concrete and tangible evidence of the existence of God normal rules of religious toleration should be reconsidered, we can rest pretty easy. After all, if you're an atheist (or even not an evangelical), you aren't really putting the Rapture in your project plans.

The various left-wing blogs writing on this also seem a bit perturbed by the "kill or convert" aspect of the game. According to reports--I can't find a demo of the game, and I don't have time to play it--protagonists have the choice of either killing their enemies or converting them. I'm not sure why this is so upsetting, however. It's a pretty standard real-time strategy (RTS) game mechanic. (In the game Sacrifice, one converts one's enemies through a form of rather energetic altar torture, as I recall.) The game is set in a world where one is either for God or quite busy following an AntiChrist. Assuming we take that as a factual premise (within the game), kill-or-convert becomes nothing more than a gameplay decision.

None of the above should be read as an endorsement of the Left Behind books or the eventual game. I've not read the books, but they certainly don't sound like my cup of tea. The game--at least judging from the website--doesn't look like it's breaking any new ground in RTS, and I'm not sure the world needs another inferior skin of StarCraft. But one should at least be consistent in dealing with video games. I credit the players of Grand Theft Auto with enough sense to know that hijacking cars is a no-no. I'm pretty certain that anyone paying for Left Behind: Eternal Forces is going to know that the Rapture doesn't come at the double-click of a mouse.

A Fitzmas Delayed is a Fitzmas Denied

And in other good but thoroughly predictable news, Karl Rove isn't going to be indicted. Shockingly, otherwise smart people are having to learn you can't trust everything you read on the internet.

And as of right now, Truthout.org's website hasn't posted any news of Jason Leopold burning his sources, as he promised to do.

Survey on Intentions of UK Firms

As a mini-update to my post yesterday on the Legal Services Bill in the UK, here's a link to a survey of 51 of the top 100 UK firms showing their intentions to promote non-lawyer managers to partnership status. The survey results raise an intriguing question: what happens to the partnership tournament when there is an alternate path to partnership?

Don't make too much, by the way, of the results of the survey on external investment. First, the top 100 firms aren't where I'd expect to see external investment, particularly since many of those firms will worry about falling afoul of foreign regulators. Second, the big story in external investment will almost certainly be new entrants. By definition, innovators are not around to be surveyed yet.

(Hat tip to Bruce MacEwan of the superb Adam Smith, Esq., one of the best sources of information on law firm management.)

June 12, 2006

Maybe All That Law Review Cite Checking Is Good For Something

Congratulations go out to Blogdenovo.org, which has just hit a milestone this blog never achieved: it's been cited in a Ninth Circuit dissent. (Hat tip to Volokh [1]) Better yet, the lucky blog gets mentioned as authority before the Harvard Law Review.

Of course, the opinion seems to imply that law student Sean Sirrine is a member of the defense bar. This will surely be news to his compatriots at De Novo, a blog that tries to keep a "law students only" policy. (Hence Jeremy Blachman and Chris Geidner are ex-members.) Such a misstatement leads one to think that the citation might have been a bit of a mistake on the part of the judge (or some poor clerk).

How did this happen? As of this writing, De Novo is the top hit for the term "U.S. v. Scott." I'd guess that this has something to do with it.

Entertainingly, not only was the citation factually incorrect, but it doesn't follow the Bluebook's horrible citation format for blogs. Not that the latter isn't all to the good.

[1] Disclosure: I've done some small writing for De Novo from time to time and give the occasional bit of tech support. Entry edited slightly for grammar and style.

Great News for British Legal Consumers

In brighter news, Law.com reports that the UK's draft Legal Services Bill has been unveiled and is expected to pass within the year. (This bill follows from the rather radical Clementi Report.) The bill would not only allow multidisciplinary practice, but would also allow law firms to accept outside investment from non-lawyers or even list on stock exchanges. While the Law Society of England and Wales mostly limits its criticism to fear of excessive government regulation and threats to the "independence" of the legal profession, the bill's nickname gives the game away: it's the Tesco Law.

Tesco (for my readers unfamiliar with the UK), ranks up there with Amazon.com as one of my "this is how you do it" companies. They're phenomenally successful and have leveraged their brand far beyond their massive grocery superstores. They figured out that online grocery shopping made economic sense if they used their own stores as warehouses. If you're a customer, they want to provide your auto insurance for the trip to the store, the credit card you use to check out, and if you have a problem, the VOIP service you use to complain. And the best part: in all my years as a customer, I never really had a complaint with them. [1]

And hence the bill's nickname. The fear is that after the bill passes, Tesco could buy a law firm or two and start providing cut-rate legal services to home customers. There's no reason to think they won't be successful. They can afford to invest massive amounts of IT into their legal operations, they can take advantage of economies of scale, their marketing budget is a smidgeon higher than the average law firm's and potential customers walk through their aisle every day.

To advocates of legal "professionalism" the idea is anethema, and the Legal Services Bill will leave legally-naive old ladies vulnerable to exploitation from unscrupulous Corporate Britain. But after the predicted parade of horribles fails to appear, the bar's advocacy of other "protections" that keep lawyer's salaries comfy will look even more questionable. Given a few years, those unauthorized practice laws may start looking more like restraints on trade.

Of course, for American or even international lawyers in Britain, the effects of the bill may be limited. An American lawyer in a British firm, for instance, would still be governed by the rules of the bar of his state. But the bill is one of the first signs that the edifice is crumbling.

For me, this presents a fantastic opportunity. Certainly I'd do well to pay my school loans off as quickly as possible, but that was always the plan in any event. In the medium term, I'd expect reforms like this to have an across-the-board reduction in legal costs (and legal salaries). [2] That makes my chosen career potentially less lucrative, but also a lot more exciting. (Just as I'm glad I was part of the internet business after the tech bubble burst. Financially, there was a lot more risk, but the work was much more challenging.)

[1]: Of course, being large and successful, they're probably loathed by the British left, but I don't know if there are any anti-Tesco documentaries (a la WalMart) out yet.

[2]: Like all large and long-term predictions, this one is risky and full of caveats. Suffice it to say that this at least increases the risk that lawyers will be paid less in the future.

Useless Tool of Spammers, or From the "There Oughta Be a Law" Department:

I'm getting really sick of "registration privacy" companies like DomainsByProxy.com. In theory, there's nothing wrong with companies like this. You use them to register your domain name, and in turn they register the domain and provide their contact information instead of yours. In the ideal world, this means spammers can't find your contact address through the WHOIS database and send you tons of spam.

In the real world it's a bit different: these services are probably more useful to spammers than their victims. If you're a blog owner, take a look at the WHOIS registrations for the sites mentioned in your blog spam. The majority, and probably the vast majority, of spam received by TYoH is now "anonymized" by services like DomainsByProxy. They host domains that are obviously tools of "black hat" search engine optimizers, and then stand in the way of anyone trying to contact the spammer (or his client). As a practical matter, the only way of getting contact information for this kind of account is to let loose the dogs of litigation. (And I can't believe DBP wouldn't turn a profit from that: check out the $75/hr. subpeona fee!)

At the end of the day, the battle over spam is all about cost. A spammer's calculations are roughly: what can I get for sending the bulk email/blogposts, how much will it cost me if I'm caught and what is the likelihood that I'll be discovered. Since few people will litigate over spam, the real cost is annoyance value to spammers and their customers: can one of the thousand spam victims convince a host to shut down a site, thus costing the spammer a few minutes of inconvenience in finding a new host? DomainsByProxy.com and its ilk make that sort of challenge a little less likely and a little more aggravating for the spam victim, and hence spamming a bit more profitable for the scumbag.

In fairness to DBP, they claim to take spam "seriously," though given my interaction with them so far it's hard to treat that claim with any real seriousness. There's no way to complain to them over the phone: despite being listed as "administrative" and "technical" contacts for the domains registered, the phone numbers provided will not connect you with anyone providing either service. (You can contact their billing department if you wish to pay them, of course, so the "billing" contact is at least accurate.) [1] So I've emailed their abuse department, and in a few minutes received the predictable automated reply:

If you can supply the information outlined above we will initiate our investigation immediately, thank you for your cooperation.

You're welcome. Of course, lack of contact with any named human being does not give one much confidence. Readers are welcome to leave guesses in the comments as to what "action" gets taken.

One interesting legal question comes up from all this. I copied a few other sites in adding the following text to my comment-pending pages:

The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover my costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Now, I'm not sure if that's enforceable at all. (Actually, I should probably put it below the "submit" button on the comment form.) But supposing it is, I wonder if businesses like DBP might be held liable? And if we all used such T&Cs on our blogs, might enforcement become a realistic possibility?

[1]: In the non-legal sense, providing a contact number for technical matters that in no way leads to a technical contact is "lying." Whether this is actually illegal or constitutes fraud is, of course, not something I can comment on, being neither qualified nor willing to risk liability. In a non-legal sense, of course, it's shifty.

June 09, 2006

Cool Law School Tool

Dear Wormwood: [1]

I apologize for the short missive, but I felt this might save you some time in your first few weeks at law school. Check out Google's new home page tool. Instead of the austere and simple Google search page, the homepage allows you to clutter up your desktop with lots of little applets.

Most of these are not worth the screen space. But even if you're an austere minimalist and the thought of burdening Google's simple homepage offends you, it might still be worthwhile to add one tool: the USD Law School Utilities. (You may need to log into Google homepage for that link to work.) The toolkit includes links for looking up cases, bits of the US code, the Federal Rules of Civil Procedure and the UCC. For some of the features, you may have to wait until you're given a Westlaw password, but most of the searches use free online sources.

Hope this saves you some time, dear nephew!

[1]: As longtime readers know, my Letters to Wormwood contain advice for those considering law school. I think it only appropriate now that I've graduated to treat Wormwood as if he has now been accepted to a major school and will start in the fall.

June 07, 2006


I suppose that in keeping with my frequent assertion that it's important to denounce lunatics on one's own side of the aisle, I should register disgust at whatever it is Ann Coulter has said recently about 9/11 widows. The trouble is, I have no idea what she said and I'm too busy to really want to spend time falling into the sewer to educate myself. Can we just take it as read that I think she's a few bricks short of a full load and leave it at that?

On the other hand, there's some fun and games over at Instapundit. At the same time that his blog is suggesting that Coulter should be ignored, his Pajamas Media ad is suggesting that his readers can get free copies of her book.

Gotta love automated ad feeds. . . .

June 05, 2006

Barbri Depression

Today began week three of the Barbri preparation for the bar exam, and already it seems like forever. The course makes me wish I had internet access on the George Washington campus. (Apparently the lecturers believe me incapable of taking notes on the first go, because every point is repeated at least twice, and on average three times. I really only need to be there one hour out of every three. The problem is, it's not one contiguous hour.)

I walked in late today and found out that the instructor was using Shaggy as a mnemonic.

Frankly, the course has me depressed. It's not just the cotton-candy atmosphere of the lectures. (Though if I'm paying upwards of $2,000 for a set of courses, professors shouldn't try to make it "entertaining." I can easily pay $1,000 for education and use the other $1,000 to invite several dozen of my closest and even not-very-close friends to a Tom Petty concert. Not to say that I could mix black letter law with stand up comedy myself, but I know my limitations and wouldn't try.)

It's not just the endless dull hours of memorization. I went through this same process to pass my exams back in my undergraduate days, so this is nothing new. Rather, the whole process has me down. The last in a series of hoops to jump through in order to get that precious "Esq," there's nothing in this long, tedious journey that makes me a better lawyer. My clients will be no better served by me a year from now because in the next two months I half-crammed a litany of unconsidered [1] rules into my head and vomited them onto paper. Almost every taped lecture includes some bit of advice tailor made for mediocrity: Don't overthink the exam. Don't try to learn everything because you can't. You only have to get sixty percent or so right. You only just have to pass.

My clients would be better served if I were to start work tomorrow and thus be mentored by accomplished lawyers actually doing some law. After all, they wouldn't have to pay hourly rates that support my salary payments that then pay off my bar loan.

And that's the really depressing part of this. Long-term readers of TYoH will know that I'm skeptical of the requirement of professional status for lawyers. Well, sitting in that class every day reminds me that this rather nonsensical confection of a test will, come September, provide quite a dividing line. If I pass, then any advice I give to a client is blessed by the brotherhood and entitled to all the protections that go along with it. If I fail, the same piece of advice--no matter how well-researched, and no matter how little access my client has to "real" lawyers--could make me a felon. The determinant of whether my words are felicitous or felonious? A hopped-up SAT on steroids.

Don't get me wrong. It'll be a little late and a little cramped, but I'll do the work. I'm not cocky: I know there's a real possibility (if not probability) that I could fail, and as the exam nears I'm sure that terror will have a serious motivating effect. But the Alice in Wonderland foolishness of this process means that I get no joy from the work. On the one hand, I'm not learning anything (or at least, anything worth knowing). On the other hand, it's impossible for me to believe that this exam weeds the good lawyers from the bad, thus ensuring the protection of the public.

I'd be much happier if I showed up one morning and one of the taped lectures started out: "Let's be serious, folks. This is a difficult exam that the Bar puts here to make sure that anyone who gets through it gets a fatter salary than they would otherwise. That's why you're here, so let's get to it."

[1]: The rules are not only unconsidered but half-fictional. In criminal law, the professor spent a great deal of time explaining that the multistate bar exam tests common law crimes that have been almost entirely superseded by statute in most states.

Giving The Devil His Due

Accessorize Your BarBri™ (0)
Why I Have A Hard Time Respecting Amnesty International (3)
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How You Know You've Been Studying for the Bar Exam Too Much (1)
Dawn wrote: On the other hand, with a literatur... [more]

And he wonders why he gets called an elitist . . . (3)
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Radicals in (Professorial) Robes (0)
Best Comment I've Heard So Far on the Carabell Case (0)
Strange Things Indeed (1)
Deborah wrote: I have solved this problem by recla... [more]

Stop Thinking Like A Lawyer (1)
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Your Glimpse Into The Fever Swamp Left, "Move On, Guys" Edition (0)
D.C.'s Finest Taxi Service (3)
ambimb wrote: Come on! You know those shoeboxes a... [more]

Why Not Just Ask The Real Question: Is It A Good Game? (5)
Mr. Bingley wrote: Hmm, I never played it long enough ... [more]

A Fitzmas Delayed is a Fitzmas Denied (0)
Survey on Intentions of UK Firms (0)
Maybe All That Law Review Cite Checking Is Good For Something (0)
Great News for British Legal Consumers (2)
A. Rickey wrote: Well, remember, before anything hap... [more]

Useless Tool of Spammers, or From the "There Oughta Be a Law" Department: (0)
Cool Law School Tool (0)
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A. Rickey wrote: As I said, ugh. Ross Perot's third... [more]

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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)

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De Novo
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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
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Stay of Execution
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The End
Mid Thirties

Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
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Entry Level Hiring Report

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Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:

Crescat Sententia
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Law Dork
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New Jersey High Court: 'Same Rights and Benefits'

Surveying the revival
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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

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