Probably my least favorite of the Volokh Conspirators is Professor Bernstein. To give him his due, he's often surprisingly lucid any time except when he's speaking about Israel. At that point, he often spouts out the most outrageous junk without really giving it any thought or decent research. And I say this not as some pro-Hezbollah crank, but as someone who is generally very pro-Israeli.

Today, for instance, the Professor asks, "Does Japan Have the Right To Exist As A Japanese State?" In relevant part, he continues:

My correspondent was unaware of any other countries that have an overt ethnic identity, but, judging by immigration laws, there are quite a few, and with a few exceptions (Armenia and Germany), their discriminatory immigration policies exist, unlike Israel's, without any justification resulting from persecution of that group.

For example, according to Wikipedia: "Japanese citizenship is conferred jus sanguinis, and monolingual Japanese-speaking minorities often reside in Japan for generations under permanent residency status without acquiring citizenship in their country of birth." Why does Japan have the right to exist as a Japanese state? Has this question ever been asked?

My direct personal knowledge of the issue is fairly limited, but enough to make Prof. Bernstein's question slide straight from silly to repulsive. During my first short stay in Japan (way back in my undergraduate days), my class was taken to visit a Korean village in Takatsuki, near Osaka. I still vividly remember the little hamlet, both because it seemed so different from the small part of the Kansai region with which I was then familiar, and because it was the first time I ever got a taste of kimchi. Most of the folks in the surrounding houses came out to talk to us, many telling stories of how difficult it was to deal with the government when one doesn't have any Japanese identity and yet has no other country to which one can turn.

I also remember what my host mother--an otherwise kind woman--said when I returned home from the trip. Roughly translated: "Goodness. Why would you want to visit those people?"

While the discrimination faced by ethnic Koreans in Japan is gradually declining, suffice it to say that most human rights organizations (as well as scholars of Japan) have not considered the treatment of the zaikoku to be a gold star on Japan's human rights record. If I were to guess at the external concensus, I'd have to think most scholars find the official refusal to recognize ethnic Koreans as full citizens in the latter part of the last century to be a disgrace. If Professor Bernstein is trying to legitimize Israel's actions by comparing them to Japanese policy with regards to foreigners, he's putting himself in uncomfortable company.

Posted by Anthony at 11:19 PM | Permalink | Comments (1) | TrackBacks (0)

In conjunction with my last few musings about gay marriage, I'd like to point my readers towards one of the more intriguing articles covering its intersection with tax law.

Posted by Anthony at 12:17 PM | Permalink | Comments (2) | TrackBacks (0)

As I said yesterday, neither the ruling of the New York Court of Appeals nor the dissent in Hernandez provided much surprise to watchers of the debate. However, Chief Judge Kaye's dissent did serve to strengthen one of my convictions as to the most profitable course that gay-marriage advocates could take: ditch "equality."

Equality, after all, is not much more than a gossamer word. Demands for "equality" (or "equal protection") mean nothing in and of themselves. Rather, they gain meaning only after one has defined the scope of the equality to be protected. Hence, Judge Kaye can that New York treats a woman who wishes to marry a woman differently from one who wishes to marry a man, and thus that woman is treated unequally. Judge Smith can counter that the same woman is treated no differently from any other woman or any other man: they are both limited to marrying members of the opposite sex.

I would imagine that to many readers, either Judge Kaye's reasoning or Judge Smith's seems self-evidently obvious. Some day, perhaps, after sufficient search through precedent or a laborious effort towards enlightenment, some Solon might conclude that in the balance some platonic ideal of "equality" sides with one or the other Judge. But such arguments leave few tools with which the advocate on Side B can attempt to convince his opposite on Side A. The degree to which the opinions and dissents in gay marriage cases--either Hernandez or Goodridge--tend to talk past each other when it comes to what is "equal" rather illustrate the difficulty.

It seems to me that a better avenue of argument is to abandon the fetish for equality. Certainly, it's good to treat people equally, equality is a value, and all that. But the concentration on equality leads gay marriage proponents to two particular strategic potholes. First, equality has a moral dimension: it is tough to make a demand for equality that does not at least implicitly accuse ones opponents of bigotry. Now, perhaps one believes that no one can oppose gay marriage without being a bigot. Yet popular referenda are continually passing opposed to same-sex marriages, which suggests that accusing the opposition of bigotry is a quick way to turn off voters rather than woo them.

The second problem with focusing on equality--or rather its close sibling, equal protection--comes from the test most likely to be invoked. Equality is either a "gender" issue (getting "intermediate scrutiny") or subject to rational basis review. This in turn requires proponents to use arguments, of which Chief Judge Kaye's is only the latest, that there is no rational way one can support heterosexual-only marriage. The logical corollary of this, of course, is that all those who do oppose gay marriage are irrational. See above for why this might not be too wise as a political matter.

Further, I simply cannot fathom the idea that opposition to gay marriage is utterly irrational. The institution is, after all, relatively novel, especially as opposed to polygamy and its deeply-rooted history. As Judge Smith said yesterday, "A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted." And if one does not reach that conclusion, it staggers the imagination that gay marriage would not be more common.

These two "potholes," as I've called them, tend to blind gay marriage proponents to what I'd consider a more profitable avenue of attack: that even if a choice to ban gay marriage is rational, it's nonetheless simply a bad idea. After all, rational people are not perfect people, and they are perfectly capable of holding views that are mistaken.

That's one reason that even during my bar review course, I've been continuing my research into how to use the Defense of Marriage Act to create a tax shelter for gay couples. [1]. While I was once a proponent of DOMA as a bulwark against judicial activism, I'm becoming more and more convinced that as a jurisprudential matter it's a mistake.[2] The federal code, after all, recognizes marriage as much to prevent cooperative behavior against the government as it does to "reward" committed couples who raise families. DOMA may in some measure check activist judges, but it does so at the cost of making our general law inconsistent, and that may very well be too high a cost.

Notably, arguments that heterosexual-only marriage is a bad idea are superficially awfully similar to arguments about equality. Take the litany of unfairness catalogued by Chief Judge Kaye, for instance:

Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers' compensation, the right to sue for wrongful death and spousal privilege.

And even arguments that don't rely on the double-edged nature of legal responsibilities can be cast without a "fairness" consideration. Yes, one can say that it's unfair that a homosexual who dies intestate (or with a somehow invalid will) may not find his estate passing to his long-committed life partner. But even if it were somehow equal, it would still conflict with another deeply-held principle, that a decedent's effects should pass to those they would naturally choose.[3]

The distinction remains subtle but important. It is nearly impossible to talk of "rights" without saying to one's opponents, "You must recognize this: to do so is at the very least irrational, and probably immoral." Whereas to talk of outcomes softens the tone: "You should recognize this, because failing to do so has painful and even perverse effects." As arguments go, the latter is far more likely to win votes.

[1]: A more pressing reason, of course, is that my free Lexis access runs out at the end of the summer.

[2]: In saying that DOMA is a mistake as a jurisprudential matter, I mean that the only way I can think of to reconcile the obvious purposes of much of the tax code with DOMA requires one to believe that either the tax code or DOMA don't mean what they clearly do. Certain tools beloved of the more modern constitutional scholars might be adopted to square this circle--for instance, consider the Code to be an "evolving" text--but I consider that jurisprudentially undesirable.

[3]: I'm sure I could somehow work tenancy in the entirety into this. But it's currently a big headache for me on the bar exam: I keep getting it wrong.

Posted by Anthony at 11:17 PM | Permalink | Comments (1) | TrackBacks (0)

The New York Court of Appeals (equivalent of the Supreme Court for New York) has now decided Hernandez v. Robles in favor of the defendants. Hence,the New York constitution doesn't require same-sex marriage. The decision was a narrow 4-2, with Judge Smith writing the opinion of the court, Judge Graffeo penning a concurrence and Chief Judge Kaye filing a dissent that at times seems almost Scaliesque in its vehemence.

There's little in the way of new arguments. Anyone who's been following the debate at all over the last few years will find the back-and-forth familiar, almost comforting. And yet the final comments of the key opinions stand out. In dissent, Chief Judge Kaye closes with:

I am confident that future generations will look back on today's decision as an unfortunate misstep.

We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.

UPDATE: In case anyone was confused by my writing that this was a 3-2 opinion, I apologize for the error. I somehow combined Judges G. B. Smith and R. S. Smith into one SuperJudge™.

Also, the Supreme Court of Georgia today reinstated the ban on gay marriage in the Georgia constitution. (Hat tip How Appealing.)

Posted by Anthony at 10:58 AM | Permalink | Comments (2) | TrackBacks (0)

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.

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.

Posted by Anthony at 09:18 AM | Permalink | Comments (0) | TrackBacks (0)

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.)

Posted by Anthony at 08:30 AM | Permalink | Comments (0) | TrackBacks (0)

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.

Posted by Anthony at 10:47 AM | Permalink | Comments (2) | TrackBacks (0)

On the 4th of May, Nassau County Legislator Jeffery Toback proved that nothing--not even flagrant misuse of judicial resources or his own self-respect--would get in the way of protecting his constituents from child pornography. Oh, wait a second, I'm sorry: make that Child Pornography.

The two are not the same thing.

This shining example of legislative acumen, who has now been honored as Dork of the Month by one blogger, and doubtless even more appropriate names by others, decided that he would file a lawsuit against Google because the company profits from child pornography. Oh, I'm sorry, I got that wrong again. Google profits from Child Pornography.

The complaint--sixteen pages suitable for future scrap paper or maybe as a condign example of how to mask a political diatribe as a legal argument--is available online thanks to Eric Goldman of Marquette University. News reports have included such headlines as "Google Sued Over Kiddie Porn." Yet if we look at the brief, it's interesting to note that Mr. Toback really gets in a tizzy over Child Pornography:

...Defendant continues to put its economic gains ahead fo the interests and well-being of America's children and their care givers who are being bombarded with child pornography and other repulsive material that is illegal to distribute to children (collectively, "Child Pornography").

Simply put, Defendant is the largest and most efficient facilitator and distributor of Child Pornography in the world. Defendant has the technological and operational resources to curtail, if not eradicate, Child Pornography. However, Defendant has no desire to do so not because it is a defender of "free speech" and "privacy rights" on the Internet but, rather, because Child Pornography is a multi-billion dollar industry that has become an obscenely profitable and integral part of the Defendant's business model.

Child Pornography, it seems, does not imply merely child pornography.

Of course, it's a bit difficult to tell what Mr. Toback is actually talking about. Later in his brief, he states:

The subject matter of this lawsuit--Child Pornography--has been ruled illegal and banned by the federal government and all fifty states by statute. Furthermore, the Supreme Court has long ago ruled that the Constitution does not protect an individual's revolting desire to view children engaged in sex acts, nor does the Bill of Rights provide any insulation for any other form of Child Pornography.

Defendant is knowingly generating billions of dollars from the pornography trade and Child Pornography profiteers, in intentional and reckless disregard of its legal duties and the well-being of our nation's children.

I don't know how easy it is to find child-pornography through Google, and frankly I don't fancy finding out. (I suspect Columbia records all my search engine requests, for one thing.) But I did try to find the one particular ad mentioned in the plaintiff's brief, which reads "Free trailers! www.seventeen____.com." Toback calls this an "obscene and illegal" website, but the only thing I found through Google that approached that address is . . . well, distasteful, but states that despite the name of the site, all "actors" were 18 at time of filming.

Suspicious advertisements can appear, especially when advertisers use dynamic keyword insertion. (Note, however, that in the advertisement mentioned in the linked post, the ad wasn't actually for child pornography but for singles-only vacations: the ad just looked dodgy because it had inserted dodgy search terms.)

Of course, I'm just being unreasonable and horribly unfair. According to Mr. Toback's complaint:

. . . [N]o reasonable or fair-minded person can defend Defendant's policies and practices of facilitating, aiding and abetting pornographers in distributing Child Pornography.

In any event, the biggest falsehood in the complaint is this:

. . . [T]his action is brought by concerned community members . . .

Posted by Anthony at 08:03 PM | Permalink | Comments (1) | TrackBacks (1)

(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.)

Continue reading "Big Gay Al's Big Gay Tax Shelter: Arguing for Gay Marriage Through The Tax Code" »

Posted by Anthony at 09:03 PM | Permalink | Comments (3) | TrackBacks (0)

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)

Posted by Anthony at 06:50 PM | Permalink | Comments (0) | TrackBacks (0)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Anthony at 01:05 AM | Permalink | Comments (1) | TrackBacks (1)

The Smoking Gun has the scoop.

Posted by Anthony at 02:20 PM | Permalink | Comments (0) | TrackBacks (0)

Will Baude slums it in the New York Times this weekend (seriously, congrats on that, Will), arguing that if Roe v. Wade is overturned then chaos shall reign and the heavens shall tremble in their moorings. Specifically, he worries that anti-abortion states will not only criminalize such procedures within their own borders but also criminalize crossing state lines for purposes of abortion, curtail the movement of pregnant women through child custody laws, or use extra-territorial provisions to convict women for having abortions in other states. (He also worries that, "Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah's law-enforcement officials from interfering with her decision to get one.") Will is concerned that the federal docket is only kept from such a flood of litigation by the protective dike of Roe.

Of course, Will is engaging in the intriguing game of political haruspicy, divining from the entrails of the body politic what will happen if kings (or here, kritarchs) exercise the royal perogative. All Will's gnashing and wailing rests upon a single assumption: that, in the event of a Roe-reversal, there will be states that in at least the medium term ban abortion.

Many take it as self-evident that no-Roe implies that abortion will become illegal in certain states, and there is some justification for this. After all, there are states that have laws to prohibit abortion in the absence of Roe. But these are all considerations of the very short term, and neglect the beauty of Roe for the cowardly politician. Automatic trigger provisions were enacted by legislators who knew they need never worry about horror stories of women denied access to abortion or especially of young girls dying in alleyways. Much of the "pro-life" movement is bolstered not by any grand moral consideration, but by a rather cynical calculation: when a legislative enactment will have no force, single-issue voters are more likely to punish a politician than moderates. Yet banning abortion, particularly in our sex-saturated society, has immediate (and media-visible) consequences that will swing voters.

Hence, when I run my fingers through the political entrails, my expectations for the post-Roe chaos differs dramatically from Will's. Even if certain states did have automatic bans that kicked in within a few years, these states would change their tune as politicians in anti-abortion states fell to their challengers. Indeed, I would expect that the duct-tape that holds the evangelical and economic wings of the Republican Party would fray even further. The "patchwork quilt" Will worries about would actually cover a much narrower range of issues. Does a woman need to notify her partner, or a child her parents? Can an older man take a child across state lines to get an abortion? But a state using "long-arm" authority to put a woman in prison for getting an abortion in another state. . . . well, let's just say I don't want to be working on the re-election campaign for any Republican who backed that bill.

The abortion battle ended many years ago, and pro-life warriors stand as obstinate irredentists. Roe merely prevents any form of reasonable armistice from being declared, and it is that armistice that would prevent the post-Roe "chaos" Will fears.

Posted by Anthony at 04:16 PM | Permalink | Comments (0) | TrackBacks (0)

Amazingly, Bush may just have lost my vote. Not because of threats to civil liberties, but merely through his administration's ungentlemanly thuggishness with aggregate data and his Justice Department's obsession with Project: No Child Sees A Behind.

When the Attorney General subpeonas Google asking for massive amounts of data, I think it's fair to ask what he wants to do with it. Having read the relevant court document, I've only come away more confused. Let's look at what the government has asked for:

1. A list of 1 million random URLs available for search in Google. (This down from a request for all URLs available through Google. The mind boggles at the size of that file.)
   
2. All queries entered on Google's search engine over a one week period (originally one month)

The legal arguments for turning over the data are fairly straightforward. AG Gonzalez's memo becomes an exercise in obfuscation, however, when it comes to how all these URLs are going to help his case. The data will allow the Government to "draw conclusions as to the prevalence of harmful-to-minors material on the portion of the internet available through search engines" (Motion at 8) or to "understand the behavior of web users" (Id. at 4). Apparently the AG needs massive data files to conclusively prove that (a) there's a lot of porn on the internet, and (b) people search for that porn. I simply can't believe that the ACLU wouldn't stipulate to those facts. (See UPDATE.)

Of course, one suspects those aren't the primary issue. This elaborate exercise in datamining is actually supposed to "measure the effectiveness of filtering technologies in screening [obscene material]." (Id.) But in the immortal words of Ogden Nash, "You can't get there from here," although I can see some stunningly bad ways to massage this data. For instance, you could have someone trawl through one million URLs and figure out how many were obscene sites. You could then run one week worth of searches and figure out how often those obscene sites appeared. (That's a pretty big task in itself.) Finally, you could measure whether nasty sites still turned up when you added filtering software, from which you'd then derive the "effectiveness" of the filters.

But this result is methodologically flawed. To be fair, one would have to account for which search strings were searching for porn in the first place, an inherently subjective matter. Searches for "breast," for instance, can have any meaning from the pornographic to the medical to the culinary. Further, one would have to assume that the filter is the only source of control withthat comes from filtering software. Most programs include simple add-ons that let parents see what has been browsed on the machine. The most effective "filter"? Simply telling the child, "I can track what you see, and if I find you've been visiting Playboy.com, I'll punish you once for breaking my rules on porn and a second time for not being able to find any better dirty material in all the great wide internet."

That, however, is the closest I can get to "proving" the effectiveness or otherwise of filters from the data the AG wants. The best I can see resulting from this subpeona are some spurious statistical arguments that will "show" that some mythical aggregate internet user will stumble upon pornography once every X number of days. Given that the government's civil liberties credentials aren't everything they could be right now, it would seem prudent for the AG to outline in detail exactly how he plans on using this data before throwing requests for data at one of the most-used (and possibly most-beloved) companies out on the Net.

Then again, I could be missing something. Comments on exactly how one measures the effectiveness of filtering software from these two massive data files (or privacy problems that I might have overlooked) are very welcome.

UPDATE: Above I say that I can't believe the ACLU isn't willing to stipulate to some very broad claims, a point which is flippant enough to obscure my argument. For clarity, I can see why the AG would want some relatively solid data on the prevelance of pornography online, but don't see why one has to subpeona search engines to get that data. Assuming the DoJ has the number-crunching resources necessary to process Google's records if it gets them, it must also be able to send out spiders to index portions of the net, or to run simulated searches based upon the most common search terms used. Certainly this could be handled without the ugly mallet of a subpeona and the thuggish aura it exudes.

Posted by Anthony at 12:46 PM | Permalink | Comments (6) | TrackBacks (0)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Anthony at 09:27 PM | Permalink | Comments (0) | TrackBacks (0)

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

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

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

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

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

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

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

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

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

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

Posted by Anthony at 09:14 PM | Permalink | Comments (14) | TrackBacks (0)

Bush has now picked Judge Samuel Alito as his new Supreme Court nominee. He's everything the Miers critics could ask for in his formal credentials, a potential fifth Catholic on the Court, and even his nickname (Scalito) provides comfort to the Right. No word on his Federalist Society membership, but I'm sure he's got the membership card, the decoder ring and knows the secret handshake. Certainly I can't find anything he's said that might be considered even moderately critical of the Cult of Madison.

I suppose it's a victory in senses, but it's an abandonment of the field I care about. Sure, we may get to fight over, and probably confirm, another Scalia. Yet the nomination strengthens the sense of the Court as a Clerisy, with the high priests chosen from the same set of cardinals and no room for the laity. I wonder if I'll see even a practitioner, to say nothing of a non-lawyer, nominated in my lifetime.

Update: I realize I'm out of the conservative mainstream on this one, but the treatment of the Miers nomination by movement conservatives leaves me with a particularly bitter heart towards those who are usually my compatriots. The debate became more foul and nasty than necessary, and the double-standards of the critics were breathtaking. The grammar in an ABA in-house editorial wasn't up to the standards of a Supreme Court reporter? Shock and surprise: few things are edited as heavily as judicial opinions. On the other hand, there's barely a blush by Prof. Bainbridge that he got the name of the magazine wrong, shattering his glass house as he was throwing stones. His blog, it appears, should be held to a lesser professional standard than a bar journal.

For the first time in my life, I'm considering sitting out a mid-term election, and the Republicans aren't getting my money this go around. The anti-Miers crowd (and some of the anti-anti-Miers crowd) are crowing about how we should all be united now. Not sure I buy this.

Posted by Anthony at 10:19 AM | Permalink | Comments (7) | TrackBacks (0)

The New York Times is reporting that Miers has withdrawn.

Ah well. On the one hand, the crowing of the hard conservative blogosphere is going to be insufferable. Sadly, I doubt we'll get another non-standard nominee: my money is now on the same old standard issue appeals court judge, or at the outside a professor, almost certainly one who's done sufficient sucking up to the Federalist Society as to not have their loyalty questioned.

On the other hand, the increased traffic to Professor Bainbridge on this issue has been enough to have knock-on effects on my stats. That gives me an interesting set of server statistics to analyze. Never say I can't find a silver lining.

Posted by Anthony at 09:05 AM | Permalink | Comments (1) | TrackBacks (0)

After National Review posted a PDFof Miers' response to Senate Judiciary questions, Professors Bainbridge, Fleischer, Hurt and Lindgren let fire with all barrels at the quality of the writing, taking particular glee in the (mis)use of commas. Given that most law students spend a good part of at least one year bent over drafts of law review articles submitted in 'final' form, I'm sure I'm not the only law student who saw the irony in this particular barrage of criticism.

Me, I say let he who is without sin cast the first stone here. Certainly no one submits a law review article with the expectation that it will be used to judge their fitness for the Supreme Court. Nevertheless, law review articles are still professional writing, and they are usually written in conditions distinctly more conducive to error-free drafting. For instance, very few essays (not to say articles) are written in around a week's worth of time, they are generally on a topic of the author's choosing, and they often benefit from the dedicated ditch-digging of a research assistant.

Here's a challenge to those profs (or anyone else, for that matter) who wish to judge such work: tomorrow, post a draft of the last law review article you sent off for publication, preferably before a research assistant went through it. Post it against a blueline of the next two rounds of commentary received from the staff editors and highlight the grammar and spelling errors. Or even better, hand the draft over to someone with an incentive to show the same generousity of spirit--say, someone to whom you gave a bad mark on an exam--and let them publish a piece on your blog highlighting all the errors of grammar, spelling or citation.

I wouldn't relish doing that, but I went through enough blue pencils last year to suspect that very few people, even distinguished academics, would take that challenge.

Posted by Anthony at 09:31 PM | Permalink | Comments (2) | TrackBacks (0)

I have to admit to a strong sense of disappointment in my party regarding the Miers nomination. For one thing, the gnashing of teeth and wailing lamentations from Bush-apostates like Prof. Bainbridge (who admits to "24/7" commentary on the subject) seems self-defeating. Instead of waiting for her to speak before the Judiciary Committee, they've made her out to be clearly incompetent based mostly upon third-hand commentary. (Sorry, folks, I could make a meal out of anyone if I were willing to take birthday cards out of context and had access to every silly thing they'd written.) That's not argument, it's character assassination.

In the meantime, a woman who is quite probably capable and competent is going to appear before the Judiciary Committee, primed with Democrats pretty much wishing her well (as one wishes well a hand grenade fortuitously popping out of nowhere and into an enemy foxhole) and Republicans torn between worries about her qualifications and the political fallout from rejecting a nominee. Despite some rather juvenile humor from the peanut gallery (sorry, Jeremy, but this stunt's beneath you), there's no evidence that Miers is going to make a fool of herself. Indeed, if she's as good a litigator as she seems, she may be surprising good at live hearings. On the other hand, the Bainbridges of this world have prepared their readers for such an awful spectacle of incompetence that anything short of the purely unqualified is going to exceed expectations.

In the meantime, the pure petulance of the anti-Miers brigade is bringing me more strongly around to her side. Take, for instance, the brouhaha that erupted because Laura Bush admitted--in response to a question, not something she brought up--that it was possible that some of the criticism of Miers was sexist. What was Bainbridge's response? [1] "Joe Gandelman defends Harriet Miers' critics from Laura Bush's charge that we're all just a bunch of sexist pigs. (I wonder why Laura forgot the elitist talking point.)"

Let's forget the fact that there's serious dispute as to whether the First Lady was trying to just blow off the comment. More importantly, she's right. Look at the transcript:

Lauer: Some are suggesting there’s a little possible sexism in the criticism of Judge [sic] Miers.

Laura Bush: That’s possible. I think --

Lauer: How would you feel about that?

Laura Bush: That’s possible. . . .

If you do, please take the rose-tinted goggles off and venture out into the bits of the blogosphere you don't frequent. Take a crawl through FreeRepublic.com and tell me you don't find a sexist word there. Just type "Harriet Miers" and "sexist" into Technorati and see what some people are saying. Indeed, note that the question wasn't even limiting itself to conservative criticism. I think there's a good case to be made that Maureen Dowd's recent criticism of Miers was itself sexist (sorry, can't find a non-subscription link), a case most amusingly put by the Bad Hair Blog:

[On Dowd's assertion that accusations of sexism are "silly."] Pardon my ignorance of "silly", but to have the first female nominee in 12 years compared to a movie star's mistress and a presidential bimbo [Monica Lewinsky] . . . . and flat-out state she got the job by "catering to his every need", is sexist.

When Bainbridge and Gerard Bradley want to complain that they are being called sexists due to such broad statements, it can only be because they're including themselves in a "we" that includes every bottom-feeder at the least-moderate (or moderated) bulletin boards and Maureen Dowd. I suppose that's one defense against an accusation of elitism, in which case hand me the port and cigars and consider me without insult.

Me, I'm going to wait for the hearings and read people who are spending less time complaining about the nomination and more time addressing an actual issue: there's not a lot of good information about Miers out there. Certainly lack of information is a fact. Yet even that is one more reason I'm impressed by the pro-Miers authors: people like Beldar have been doing research and actually adding data and perspective. Sure, he's a partisan and you have to take some of his words with a grain of salt. But at least it's more data.

[1]: I hate to pick on Bainbridge here, not only because he's on my side of the aisle but because he's said nice things about me. Nonetheless, he's also one of the most vocal of the anti-Miers voices within my subset of the blogosphere. He's also made it a point to doubt her conservatism, while justifying this with rather poor proxies for conservative belief.

And I have to find a certain amount of amusement in his umbrage at being called elitist. He's a cigar-smoking self-confessed wine snob living in a posh area of LA, a professor who blogs about putting iPods in BMWs. . . . Certainly there's an element of protesting too much here?

Posted by Anthony at 03:32 PM | Permalink | Comments (0) | TrackBacks (0)

Anything I can get my hands on about a case called Sotelo v. DirectRevenue, which apparently holds that spyware can constitute trespass to chattels. (Hat tip to Instapundit.)

The case is being pursued the the Collns Law Firm, but the only document I can find on a public website so far is the order not to dismiss. (See here.) Lexis doesn't seem to have the case yet, so I'm searching everywhere I can. Taking time only to tell you all the good news, of course.

(Right, I got all of that wrong. The only record that I've found with regards to the case is the motion to dismiss, which dates from August 29th. There doesn't seem to be a ruling so far, despite the claim in the first paragraph of the USA Today piece, just enough to survive dismissal. That should teach me to write things quickly because I'm excited. Blame it on all the spam I've been peeling off my machine.

The case is available on Lexis, and the only filed opinion is the one I linked above. The case is Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219.)

If you've got a chance, it's well worth reading the case just to watch a number of spurious defenses get raised. I particularly liked this:

DirectRevenue and AccuQuote also argue that each advertisement that plaintiff alleges he received as a result of Spyware "would have contained a link with yet another opportunity to view the EULA." According to DirectRevenue and AccuQuote, clicking on a small button with question mark in the corner of the pop-up advertisements leads to additional information about Spyware, another opportunity to read the EULA, and instructions on how to uninstall Spyware. The question box does not indicate that it links to information regarding the source of the advertisements or to any kind of user agreement, however. Moreover, by the time plaintiff began receiving the advertisements Spyware had already been installed, and the computer damage had begun.

Of course, for "everything but the kitchen sink," the plaintiff's allegations deserve an award:

Plaintiff also alleges that Spyware and the resource-consuming advertisements sent to a computer by Spyware cause computers to slow down, take up the bandwidth of the user's Internet connection, incur increased Internet-use charges, deplete a computer's memory, utilize pixels and screen-space on monitors, require more energy because slowed computers must be kept on for longer, and reduce a user's productivity while increasing their frustration.

The part of the case that interests me most: how do you distinguish Intel v. Hamidi? (That's the case in which Intel wanted to sue a former employee for trespass to chattels when he sent quite a few emails to their employees.) The court specifically addresses Hamidi pointing to the fact that the plaintiff alleges more damage on behalf of his computer. And again, with Ceres I would believe this. At the end of the day, none of Intel's computers were going to be burdened for a microsecond by Hamidi's emails, but some pretty good desktop PCs will slow to a crawl when Ceres got hold of them.

In any event, keep an eye on the Collins Law Firm and their work in this area: if they manage this case, I hope the next thing they look into is comment spammers on blogs.

Posted by Anthony at 10:36 PM | Permalink | Comments (2) | TrackBacks (0)

First, I should clear up a misconception: despite some assertions to the contrary out there, I'm not absolutely in favor of the Miers nomination. I don't think I have enough information,[1] nor do I think anyone yet does, to make an informed judgment. Those who have not reserved judgment have by and large put forward reasons to reject her nomination that do not persuade me: she's not a judge or a professor and hasn't collected the right brass rings. Before I'm willing to say she's unqualified, I'd like evidence that Miers is not smart or thoughtful, not merely that she's missing robes or ermine.

But worse than the whiff of elitism is the wailing at the Federalist Society, where the egos have been quite obviously bruised. Professor Richard Garnett started the banshee howl on Natonal Review's "Bench Memos," and both Prof. Randy Barnett and Prof. Bainbridge pick up on the theme. How has Miers raised such angst among the Feds (or at least their fellow travellers)? Among other things, by stating in some decades-old testimony that she wouldn't belong to the Federalist Society because "I just feel like it's better not to be involved in organizations that seem to color your view one way or the other for people who are examining you."

Good for her.

Look, there's nothing wrong with the Federalist Society as such, and unlike the American Constitution Society it doesn't have a strong sense of redundancy. It does good work, gets good speakers, and serves as a social network for conservatives who wish to be "plugged in." But the interests of the FedSoc are convergent with only part of the interests of the Republican Party or conservatives generally. Libertarians have far greater influence within the Society than they do within the conservative movement as a whole, and to the extent that the Society speaks with one voice, it speaks for, to, and with the twangy tones of Gabriel the Professor rather than Joe Six Pack. [2] Just because the Society is the only conservative constituency Bush has in legal academia, it does not follow that they're the only or even a necessary constituency for him to observe when making nominations.

The near death-grip that the Federalist Society has on the claim to conservatism in academia has become a stifling assumption. I don't propose that the society be fractured into a hundred different splinter groups, as that would merely turn what remains into a clone of the ACS. But could they possibly admit that one can be a conservative on campus, or a conservative working in the law, and not wish to have their damnable silhouette stamped upon one's forehead? (And as for cronyism, could we please concede that the President can nominate a candidate who is conservative without having to "pay his dues" to the Society? Were they really the only ones waiting for long years in the wilderness? And are we really objecting to cronyism, or that he's chosen the wrong kind of crony?)

Garnett's piece deserves more attention, but for this line:

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned