August 03, 2006

Tunnel Vision on Israel

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?

Why, yes, Professor, it has been asked! The problem of ethnic Koreans living in Japan features prominently in just about any human rights discussion of the area, whether among students of Japan, expatriates living in Japan or just about anyone with a passing knowledge of Japanese history. Indeed, if Professor Bernstein had been a bit more persistent even in consulting Wikipedia, he'd have stumbled upon their own entry on the zainichi-chosenjin, which provides some pretty good background. And most of the commentary on the issue is not spectacularly favorable to Japan.

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.

July 07, 2006

Recommended Reading: Theodore P. Seto, The Assumption of Selfishness in the Internal Revenue Code: Reflections on the Unintended Tax Advantages of Gay Marriage

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.

July 06, 2006

One thought on Hernandez

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.

Each of those "equality" principles are a double-edged sword. Consider, for instance, parental rights. Certainly in New York there must be some "deadbeat" gay father who has skipped out on his partner and their (in fact if not law) adopted child? At least for the father, the lack of recognition is a boon, yet not one that we'd like to encourage. Or take health insurance. One would think that so long as a state does not force private employers to recognize same sex couples, there will be a certain number of them in which one member has private health benefits but the other must be supported by the state. Is that a policy to be encouraged by fiscal conservatives?

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.

Hernandez v. Robles now decided

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.

To which Judge Smith replies:
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.

It is a quaint idea, that. Chesterton remarked approvingly that tradition was the "democracy of the dead." But what should one call the democracy of Chief Judge Kaye? Perhaps precognition is the democracy of the unborn.

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.)

June 22, 2006

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 13, 2006

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

Great News for British Legal Consumers

In brighter news, 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 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.

May 09, 2006

A Shameless Political Hack Grows in Nassau, or How Not to Write a Brief, Kids

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").

and then a bit later,
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.

Ignore the fact that the plaintiff has gotten to Page Three of his complaint without leaving full-on campaign stump-speech mode. Note the sleight of hand: the accusation isn't that Google trades in child pornography as you or I would know it, but Child Pornography, defined as "repulsive material" that would be illegal to distribute to children. That could conceivable include everything more erotically-involved than Maxim. In other words, the "multi-billion dollar" industry that is an "integral part" of Google's business model is legitimate porn that might fall into the hands of children, which is to say, virtually all of it.

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.

So maybe he does mean mere child pornography, and his complaint-writers have a capitalization fetish. But then how does one square that with his other claim:
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.

According to Google's most recent 10-K, its total revenues were $6.1 billion last year. If the company is making "billions" off of Child Pornography profiteers, then fully one-third of the value of its AdWords would seem to be bought by kiddie-porn operators. That's a pretty ballsy statement. Indeed, I'd be impressed to find that one-third of all AdWords revenues come from pornography.

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!" 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.

Guess Google must be hoping for an unfair and unreasonable judge, as well?

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

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

No. It's brought by a local government official striving for publicity. I hope this kind of mockery is just what he was looking for.

April 24, 2006

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

(My apologies to South Park for the title.)

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

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

Two words leap into my mind: tax arbitrage.

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

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

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

April 16, 2006

Apple + Lawyers = Little Girl's Tears

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

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

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

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

March 08, 2006

Reflection Two on Rumsfeld v. FAIR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 07, 2006

Bankruptcy Judge Cites Adam Sandler Film

The Smoking Gun has the scoop.

January 23, 2006

The Myth of the Anti-Roe Majority

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.

January 20, 2006

What is AG Gonzalez Thinking?

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)

Those are some big files. While I agree with Chris that the privacy concerns aren't that significant (they're not asking for IP addresses), it still seems like a ridiculous fishing expedition.

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, 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.

November 17, 2005

Next on Fox: 24 Hour Coverage of P. Diddy v. the Federal Electoral Commission

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.

That's a relief, then. Dad, you can put away the army rifle, Democracy is safe from the likes of Leonardo DiCaprio (for now).

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.

He also never had much more to say than, "The Notorious B.I.G., great gansta that he was, died like a gangsta. He got shot. This makes Puffy saaaaaad." He just said it to a beat. But whatever I think of The Puff Man's lack of creative direction, filing FEC complaints against him goes beyond gilding the lily. Is there a phrase for trying to add stink to a dead fish?

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.

I channelled Alexis de Tocqueville this evening. (Incidentally, the great man informed me that he now goes by the moniker "The Nefarious Lex D. T.") After I explained the complaint to him, he thought he needed a strong beer and a whiskey chaser.

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.

November 01, 2005

Netflix: In Other Lawsuit Related News

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.

I like Netflix. They provide a groovy little service through a reasonable web interface, and their impersonal online help means that I never had to deal with the legendarily rude and snobbish counter staff at Kim's Mediapolis when I want to get a film. If they've not provided me with "unlimited" movies, it's only because I don't turn them around often enough, and given that they send things through the U.S. Post, I'd not have expected "one-day delivery" if I'd ever seen it promised. I certainly can't remember that. (Update 1)

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.

October 31, 2005

Well, It's Official or A Minority of One

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.

October 27, 2005

Miers Withdraws

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.

October 19, 2005

Pot, Meet Kettle? or A Challenge to Those With Perfect Comma Skills

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.

October 15, 2005

(Mostly) Men Behaving Badly

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. . . .

Now here's a challenge to serious conservatives, that is to say those of us who aren't so busy jerking our knees to have given up on thought: do we really think that none of the criticism of Miers is driven by sexism? That if given such a low threshold as "little possible sexism" you think that our party is completely free of it?

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 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?

October 14, 2005

If You Don't See Me For A While, It's Because I'm Reading...

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.

I remember getting Ceres off of other people's PCs, and the whole thing was a nightmare. The question mark in the corner of the pop-up? It looked a lot like the question mark that appears in a lot of Windows XP windows to indicate "help." No usability expert would seriously consider a question mark to be an adequate symbol for "click here to read the EULA," especially positioned so close to another mark with a similar meaning. Making that argument is either an admission on the part of DirectRevenue that they're deceptive, or an argument that they're incompetent.

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.

Let's face it, the last one is the significant cost, although the first few are pretty good. But require more energy because slow computers must be kept on for longer? I'd hate to have to monetize the microscopic damage of that. On the other hand, how about: the user is required to find a PC-fluent friend who can remove all of the noxious software that the Ceres 'uninstaller' refuses to clean up?

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.

October 08, 2005

Who Cares if Miers is Not A Mason? Err... Federalist?

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 above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.

You've heard it from Prof. Garnett himself: who cares how good a lawyer she is, what her opinions or what her jurisprudence? If she's not prostrated herself before a graven image of Madison's Shadow, she's not fit for conservative support.

B----- that for a game of soldiers. Miers may eventually lose my support on the merits, but not because she doesn't belong to the right kind of club.

UPDATE: Feddie at Southern Appeal joins the "how dare they diss the Federalists" bandwagon. Note that he--like all the other supporters--endorses Garnett's who-cares-who-she-is-if-she's-not-one-of-us rhetoric. Read some of the commentors at his site, and you cease to wonder why Miers might not want to have been associated. And if she ever did, she may very well not wish to be now.

[1]: Now, of course, more information about Miers is coming out. A very good (and lengthy) piece on The Beldar Blog, for instance, looks through Westlaw to examine cases in which Miers was a critical player. The Volokh Conspiracy, while containing a lot of commentary and speculation, has also been a good source of primary information.

[2]: To point out the obvious, the Federalist Society is hardly an orthodoxy, and indeed includes a few Democrats and liberals. Libertarians do not have a lock upon the Society. They do, however, punch far above their weight in the wider world. Further, Federalists tend to be originalists in jurisprudence, rather than consequentialists or pragmatists. Conservatives, on the other hand, may very well be pragmatic about their judicial choices: it is by no means impossible to be both a conservative and a judicial realist. (Or to decide that you don't really care about getting the right ruling, so long as you get the conservative one. A fair few conservatives wouldn't mind a right-wing Earl Warren or Douglas, rather than a Scalia.)

October 05, 2005

Still Not Stressing Over Miers

I certainly seem to be in the minority in the conservative blawgosphere in having an initial positive attitude about the Miers nomination. That may change, of course, if more comes out to be unhappy about. But in general, I've found the arguments about Miers lack of qualifications uninspiring. The legal profession is one that puts great store in hierarchy, of course, and it's not surprising to see columns like today's by George F. Will complaining that a judge may be minimally qualified but should only be confirmed if she is excellent. The best rebuttal I've seen to this so far comes from Reginald Brown of Wilmer Cutler (via Prof. Kerr at Volokh), particularly this bit:

Will’s fourth argument is the most dangerous and absurd. He suggests Miers shouldn’t be approved because she hasn’t shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. . . . Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court’s aggrandizement of power over time.

On the other hand, Will Baude makes a little less of the outsider argument. Wondering why a different perspective would be valuable on the Court, he writes:
[I]f one believes, as I had thought Senatory Cornyn and Matt did, that judges simply enforce the law handed down by the other branches of government, why on earth should the Court care what the consequences are of doing its job? Attention to consequences makes sense if one is a consequentialist, but are we all professing to be consequentialists now?

Which is all well and good, but such perspective can be valuable even if Miers is not a consequentialist, so long as other members of the Court remain consequentialists, or arguably could be considered as such, and especially when they're weighing in on a balancing test. I'm reminded of this by what may be the funniest part of a Supreme Court opinion I've read this semester. Considering whether or not a statutory fee cap on legal fees in certain Veteran's Administration claims (to $10, making this fundamentally a bar on hiring attorneys), Justice Stevens in his dissent writes:
In my opinion, the bureaucratic interest in minimizing the cost of administration is nothing but a red herring. . . . [T]here is no reason to believe that the agency's cost of administrion will be increased because a claimant is represented by counsel instead of appearing pro se. . . . [T]here is no reason to assume that lawyers would add confusion rather than clarity to the proceedings. . . . Only if it is assumed that the average lawyer is incompetent or unscrupulous can one rationally conclude that the efficiency of the agency's work would be undermined by allowing counsel to participate whever a veteran is willing to pay for his services.

Walters v. National Association of Radiation Services, 473 U.S. 305 (1985) (Stevens, J., dissenting).

Suffice it to say, having someone with significant experience outside or on the other side of a courtroom might be useful in such discussions.

October 03, 2005

Surprisingly Unperturbed by Miers

Among conservative bloggers, at least, the nomination of Harriet Miers to the Supreme Court seems a bit of a damp squib. I won't rehash what I'm sure everyone's heard already--no paper trail, no record, why didn't he nominate a really conservative nominee, if Kos likes her how good can she be?--as I don't have much to add. But one part of the argument doesn't concern me particularly, and that's Ms. Miers' "inexperience."

Professor Volokh points out that Miers' career track is not historically exceptional, but merely unlike the ex-academics and ex-judges who are more common on the Court today. Going even further back, there have been several Supreme Court justices that did not go to law school.

But personally, I would have liked to see Bush put forward a candidate who was not a lawyer at all. I can't think of an example of this in U.S. history, but the idea itself is not particularly revolutionary. The Supreme Courts of other countries include those who have not been admitted to their bar. For instance, Justice Kazuko Yoko of the Japanese Supreme Court was a career civil servant and ambassador before she came to the bench. (Quite a remarkable woman, actually, the second to sit on the Japanese Supreme Court.) Given that Justices have to be approved by plebicite at the first lower house election after their appointment, the very least one can say is that she's done well enough not to be removed. (That's much fainter praise than deserved, but I won't bore with her qualifications. I merely mean to prove that it seems one can competently judge at the highest level of a legal system without a legal education or a life as an attorney.)

On the other hand, Justice Yokoo's background is a tidbit that invariably evokes surprise when mentioned around the law school, often on about the same level as announcing that I had been appointed as the first non-Catholic in the College of Cardinals. It shouldn't be. The law, after all, isn't some mystical source of authority that requires robes, wigs, and special arcane knowledge to fathom. In a very workaday fashion, many professionals will come into constant contact with administrative, contract, or tort law, statutory interpretation, and other matters legal. Over a long career, it's possible to build up a great store of actual, pragmatic expertise. That's not to say that anyone can do it, or that any administrator would make a great judge. The Bar, however, is just an easy way of ensuring to the public that anyone who has passed it knows a certain amount of knowledge, a form of consumer protection. It does not prove that anyone who has not passed the bar lacks the requisite knowledge.

Those of us who have steeped ourselves in the law too often feel there's something uniquely special about our education: that "thinking like a lawyer" is somehow so unique from non-legal thinking and ordinary logic that no one from outside our circle could pick up the torch. That's possible, I suppose, but my intuition is that in fact our legal education and experience--and our tendency to exclude those who don't have it--create an isolating feedback effect. That is to say, it's not that any given issue has to be complex, but rather that an issue handled by people who are steeped in a tradition of complexity and are comfortable handling issues in a given manner will inevitably become complex. Not only do the institutional players have the capacity to handle complexity, but it is inevitably to their advantage to do so.

Adding a non-lawyer to the Supreme Court doesn't mean nominating someone without experience, knowledge, skill or wisdom. Indeed, of the judicial virtues mentioned by Prof. Solum, none actually require a judge that has attended a law school or served as an attorney. On the other hand, the presence of a non-lawyer ensures a different perspective on the Court, and quite possibly promotes values that are not stressed by a lawyer-centered jurisprudence. (For example, important Court rulings carry not only a legal effect, but also influence the populace at large. A different kind of Justice might put more stress on writing that tells a tale directly to the public, rather than for the attention of legal commentators.)

Now, perhaps a non-lawyer is too radical a suggestion. I'm sure an openness to a non-lawyer as Justice puts me outside the mainstream. But whatever the case, it does explain why Ms. Miers' job history does not disturb me much.

October 01, 2005

Textualism and A Certain Misplaced Sympathy

The headline currently on the front page of the Greying Lady seems like a Scrappleface parody.

To More Inmates, Life Term Means Dying Behind Bars

To which many non-legal or non-NYT readers likely responded, "Well, yeah. What exactly does 'life' mean otherwise?"

The answer, of course, is that it doesn't mean 'life' at all, or at least, it didn't when I was born. So far, so unexciting: much of the truth-in-sentencing movement was based on the idea that a life-sentence should be a life sentence, and the truth-in-sentencing movement evolved because sentencing wasn't very truthful. The article is worth reading because of what it reveals about both law and the NYT.

You know how when you're a 1L everyone says you'll learn to "think like a lawyer"? Well, here's a judge who seems to have been stung by that very skill:

The judge, Michael F. Sapala, said he had not anticipated the extent to which the parole board "wouldn't simply change policies but, in fact, would ignore the law" in denying parole to Mr. Alexander. "If I wanted to make sure he stayed in prison for the rest of his life, I would have imposed" a sentence "like 80 to 150 years," the judge said.

The frustration of the judge is more understandable than I would have considered before starting law school. After all, he had expectations when he imposed the sentence, expectations based upon the then-current legal landscape. Who cares if "life in prison" may in some platonic sense mean that one goes to prison and dies there? "Life in prison with the possibility of parole" as a legal term then meant a prisoner would get parole or clemency, assuming a nose that was generally kept clean. The proper term, of course, would be "indefinite" sentencing. In theory, he's handing control of the sentence to a parole board, but with a certain understanding.

But I've not been in legal education long enough that I can't stop and wonder: why say life when that term has a meaning and carries with it the risk that the legal landscape shall shift? Whatever one wants to say about originalism, or textualism, or what have you, it does have this beauty: adopting a textualist attitude means you are much less likely to wake up twenty years after the fact objecting that "down" now means "up."

(The legal realist in me wonders: is the advantage of the term "life" that you can go before the audience that votes you into power and talk about giving "life" sentences, and yet know that your actions don't carry that consequence? Was "life" instead of "indefinite" sentencing the common term as a matter of historical practice, or was this useful in running for public office?. In the latter case, there is a certain irony to the consumers of the term eventually demanding truth in advertising.)

I feel for the judicial actors, though. The dark humor of the article comes from the extent to which the NYT bends over to make itself look like a conservative's parody of a liberal newspaper.

Consider the case of Jackie Lee Thompson, the central remorseful convict of the piece. What would you expect from a NYT article trying to make a convict sympathetic? A horrible time in foster care? A mother who died young, a childhood of being abused by playground bullies? A speech impediment? You'd make sure he was a good convict who used his time in jail to get an education, and pepper him with adjectives like "soft-spoken." In Thompson, the NYT finds a victim of the prison system with all that in spades.

The paper rather downplays the fact that this man, at the age of 15, shot his lover with three times using his friend's shotgun, slaying her for lying to him about a pregnancy. (She wasn't, said she was.) Since she had the temerity to refuse to die just then, he and two of his friends dragged a bleeding girl to a freezing creek and dumped her in it with the hopes she'd drown gracefully. Either physics or a desire to cling to life--the NYT isn't specific about her struggle, it being irrelevant to their story--kept her above water. Not to be deterred, the ever-resourceful young men (Thompson had two accomplices to kill a girl) pushed her underneath the ice.

Ever stuck your hand in the late winter water of a Pennsylvania creek? I haven't, but Michigan isn't that much colder than Pennsylvania around New Years, and my foot's slipped through the ice there once or twice. The water sticks you with knives and needles for as long as it can before you go numb, and that's through a strong pair of boots. I cannot imagine and don't want to know what that feels like on my face. Or on an open wound.

But in New York Times-land, such a murder becomes a cross between clinical procedure and a whimsical Boy's Own tale gone bad:

He used his friend Dennis Ellis's pump-action shotgun, Mr. Thompson said, and he shot Charlotte at close range three times. He tried to explain the repeated shots.

"You have to pump each time," he said. "It is true. Dennis and I, we always had a habit of going out in the woods with a gun and see how fast we could empty a gun. That's where the second and third shots come from."

Charlotte's wounds were not immediately fatal. The youths had the idea, Mr. Thompson said, of putting her in a nearby creek. But she bobbed to the surface. So the three teenagers slid her body under the ice that covered a part of the creek, drowning her.

"You should have seen how stupid we was," Mr. Thompson said. "I wish I could change that."

Yeah, me too.

Such limp prose makes me wonder what kind of planet NYT writers like Adam Liptak live on. "The youths had the idea"? Youths have an idea that today would be a good day to skip class. "The youths had an idea" is a phrase suited for one of those bad middle-school reading assignments like The Pigman, words reeking of the innocent and naive. When three boys decide that they've got no more mercy for a girl, and can think of no cleaner way of killing her than drowning her in icewater, there's a little more evil than can easily be held in the phrase "the youths had an idea."

The entire article contains much of the same. Ballast for the poor convict is in this case provided by one paragraph describing how horrible Mr. Thompson's young life was for every paragraph delivered in bland and tepid prose concerning the murder of a young woman. This life is horrible indeed, but provides no reasonable explanation of why one should excuse someone who ended his lover's life in pain and terror.

There are good and practical arguments as to why we should consider paroling more lifers. Many of these are solid economic arguments involving recidivism rates, costs of incarceration, and the usefulness of attempting to rehabilitate someone who is never going to be released. There are good legal and policy arguments for doing so: is it just to keep punishing someone now if the expectation when they were sentenced--whatever the words--didn't match the terms used? A serious person can make credible arguments about that, however much one might disagree.

But the New York Times has taken an obvious horror and made it bloodless, let a technicolor tragedy bleed to sepias because of the simple passage of time. And it's not just the NYT. In the almost endless swirl of symposia, law review articles, conferences, debates, and even blog postings that advocate sentencing reform, there's a sense of the New York Times that is too often present. The standard process, if one is to mention an actual crime at all, is pretty well set: make the crime as statistical as possible, explain every mitigation that was overlooked, and then combine an economic analysis with an explanation of why these sentences violate some legal norm.[1]

This may be fine for academia, but I can't see this as a sensible strategy if one really wants to advocate sentencing reform outside of the ivy tower. To appeal to a public that has elected the prosecutors and put in place many of the judges, to those who have demanded that we be 'tough on crime,' there's a condition: first deal honestly with the issue of condemnation. Don't try to play on the listener's heartstrings with Mr. Thompson unless your opening movement tells a passionate tale of betrayal, slow suffering and skin turning blue in icy waters. The NYT focuses on the criminal's understanding and regret at what he's done, but that misses where the listener's interest really lies. Why does he care whether a man who's been punished for 35 years understands what he did? The real issue is whether the person proposing reform understands, and if the reader can trust that person.

Establish that you understand the wrongness, that you don't excuse it, and that you still propose parole, and I'm pretty certain others will follow.

[1]: Another classic of the genre is the "unfair three strikes" paragraph. The example from this NYT piece:

But some critics of life sentences say they are overused, pointing to people like Jerald Sanders, who is serving a life sentence in Alabama. He was a small-time burglar and had never been convicted of a violent crime. Under the state's habitual offender law, he was sent away after stealing a $60 bicycle.

A "small-time burglar." That's a person who breaks into people's homes, who steals things that may or may not be insured--he doesn't care--and may or may not have value beyond what he'll pawn them for. After he's gone, the person whose home has been burgled may never feel safe again. In areas frequently burgled, shopkeepers spend more on security than serving customers, and families are wary of buying nice things for their children--say, a $60 bicycle--that will just end up being sold to a fence.

That's not to say that there are not pragmatic reasons for Mr. Sanders to be paroled. But that paragraph makes it sound as if the greatest injustice in the case is that a small-time burglar--almost a small businessman, a quick-thinking entrepreneur--has been put away for life. After all, he was only taking "$60 bicycles," and who could care about those?

The old saying about a liberal being a conservative who's never been mugged...

September 29, 2005

Judge Roberts Gets the Nod

As virtually everyone has reported already, Judge Roberts is now Chief Justice Roberts. Congratulations to the Chief Justice!

In the meantime, Bush isn't done with his nominations. There's still time for you to show your true--or your satirical--colors:

A slogan no one should support, in colors no one should wear...

(I just checked. There are at least five people who have purchased this shirt.)

September 25, 2005

Blasphemy for Atheists, Part II

Before I move on, I wanted to address some of the comments to my musings on Michael Newdow and his latest crusade to remove "under God" from the pledge. Besides the usual and pleasant debate in the comments, the thread was picked up by Will Baude and PG. Having read these, I realize that there are a few things that I didn't make clear enough.

(This is long because I'm thinking it out for myself. Unless you're quite interested, I suggest you skip to other topics. Part III will appear shortly.)

Continue reading "Blasphemy for Atheists, Part II" »

September 19, 2005

What exactly is blasphemy to an atheist?

For anyone who's missed the news, Michael Newdow is nothing if not persistent: he's gotten Judge Lawrence K. Karlton of the Federal District to rule that the Pledge of Allegiance is unconstitutional. The case may have gotten around the standing problem that led to his challenge being dismissed by the Supreme Court last year. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). [1] Much of the legal argument has focused upon the district court's application of precedent. I submit without comment analysis by Howard Bashman and Eugene Volokh on whether the Ninth Circuit's ruling which was reversed for lack of standing in Elk Grove should apply to the district court. I'll leave that to more heads more skilled in the delicate art of precedent, and instead ask a slightly broader policy question: when it comes to "under God" and atheists, why should I care?

To be a little more serious (and a great deal less flippant, as I prefer), I'll confess to a bit of puzzlement as to why an atheist sincere in his beliefs would go to the extent of multiple court appeals on behalf of his daughter, all for the sake of the words "under God" in a pledge that all admit the daughter must only hear, not recite. What, precisely, is the harm he's avoidng?

The Ninth Circuit held that Newdow (on behalf of his daughter) had sustained an "injury in fact," but there it was using the legal term of art rather than giving an explanation. Newdow's injury was an interference in the right to direct the religious education of his child. See Newdow v. United States Congress, 292 F.3d 597, 602-603 (9th Cir. 2002). But injury as "violation of a right" is different from injury in the sense I'm considering, the actual negative consequence of the pledge being stated by a state actor in front of an atheist. Here I become less certain of the problem.

When it comes to church and state cases brought by the religious, in most cases the harm is fairly obvious. Take, for instance, Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), in which the father of two Jehovah's Witnesses objected to the flag salute before the words "under God" were even added. (He lost, but the Court came around to his opinion in West Virginia Board of Educ. v. Barnette, 319 U.S. 624 (1943).) In that case, forcing the children to recite the pledge meant a choice between receiving an education and what was in the eyes of the parent (and presumably the children) the commission of idolatry. Whatever one thinks of the outcome of the case, the choice between compulsion and consequence is clear.

Similarly, I'd understand someone of a differing religious faith--say, for instance, a polytheistic one--objecting to being forced to state that this is a nation under a single God, particularly if their faith was one of a jealous set of deities who denied the existence of all others. (No such religion springs to mind, in fact, but it's not my area of expertise.) Giving the believer the most liberal benefit of the doubt--assuming that he is correct in what his deity or deities prescribe--then the fear of post-mortal consequence, be it damnation, particularly unpleasant circumstances for reincarnation, or even a less-than-ideal result in the afterlife seems worth challenging a law all the way to the Supreme Court.

That's not to say that atheism shouldn't be treated as a religious belief. In this I disagree with Jim Lindgren at Volokh, though we reach similar conclusions as to the Establishment Clause. The non-existence of God is no more a matter of empiricism than his existence. (At least, that's my belief as an agnostic.) Nevertheless, an atheist's belief in the nonexistence of God is of a different nature to the differing beliefs of those who believe in some intelligent creator. [2]

Hence the invocation of similar harm does not avail the atheist plaintiff. The atheist cannot object that he faces any compulsion greater than that of his own ego. Even giving the atheist every benefit of the doubt with respect to his belief, the harm is purely internal: an atheist mouthing the form of a religious ceremony is not blaspheming, there being no entity against which to transgress.

Which again brings me to question why Mr. Newdow keeps unfurling the banner of his Children's Crusade. I doubt his motive is of judicial significance, but given the political nature of the case it's relevant for a blogger to ask. We expect the beliefs of some Christian fundamentalists to be strong enough to withstand the teaching of evolution: does Newdow really suspect that his faith is so feeble that the invocation of two words in a pledge recited by rote can challenge them? Worth dragging that child through the publicity of a court case? Or perhaps Newdow does fear for his faith, given that he's not the custodial parent, but what about Jan and Pat Doe and Jan Roe, Mr. Newdow's new and anonymous fellow plaintiffs? They are custodians of their children, and presumably in near-daily contact. Do they really find their beliefs that threatened? Do they really see this as an issue risking... well, not the souls of their children, but some ineffable benefit in being theist free?

I have a hard time believing that, particularly when I consider the cost of a lawsuit and the ease of telling their children, "It doesn't mean anything. Just mumble." The conflict seems much more a stand for principle--separation of church and state for its own sake--than a desire to be free of painful oppression.

In any event, that's enough for now. There's another aspect of the case that interests me, and that's a comparison to international practices and my own experiences with "it doesn't mean anything, just mumble." But that will have to wait for tomorrow.

[1]: I'll fully admit that the citations in this piece are a mess. It's late at night and I'm without a Bluebook. Anyone who wants to make corrections is welcome to do so in the comments: never let it be said I'd deny my readers the fun of cite-checking. But this is a blog, not a law review, and I write it for fun: I'll fix citations tomorrow.

One interesting question does strike me, however. When I link to a case, I either use the most convenient--meaning usually the first hit in Google--source that looks reasonable, unless I want to support a given site. (For instance, I think Oyez is cool, so it gets quite a few links above.) Does anyone know of a list of "authoritative" sources that law-bloggers use for links?

[2]: I am using "atheist" here in its strongest sense, the denial of any greater being or conscious creative force: for sake of simplicity, the non-religious or non-mystical. Obviously what I say here would apply differently to non-theistic belief systems, but they're mostly irrelevant to the discussion at hand. The District Court doesn't make it clear in its statement of facts, but there's no indication that the atheists in question are non-theists.

September 03, 2005


The New York Times is currently reporting on their website that Chief Justice William Rehnquist has died. I'll put up a link when they have a permanent story. My condolences to his family and friends.

(UPDATE: Story here.)

With one retiree and the passing of the Chief, the Court seems headed for interesting times.

August 01, 2005

Some Questions You Just Don't Ask

Howard Bashman, the uber-blogger of things legal, has started a contest:

Dumb-ass questions contest: Why should seven Democratic U.S. Senators and their staff have all the fun? Why indeed!

Accordingly, I am hereby launching a "How Appealing" contest to identify the most dumb-ass question that could possibly be asked of U.S. Supreme Court nominee John G. Roberts, Jr. at his upcoming confirmation hearings. Unlike last time, when U.S. Senator Orrin G. Hatch (R-UT) put himself in charge of deciding whether or not questions for Roberts were appropriately characterized as "dumb-ass," this time I'm the sole referee of this admittedly entirely subjective contest.

(links omitted) Please, Howard, no, no! If you publish those, you're giving talking points to Ted Kennedy and Chuck Schumer. I know you think you're joking, but really, Howard, you're playing with fire here. What are you going to say when D.J. Teddy K gets up on the podium and says, "Judge Roberts, as Pennsylvania attorney Howard Bashman has asked. . . ."

May 03, 2005

Solemn Solomon Prediction

As just about everyone in the law school world knows by now, the Supreme Court granted cert in Rumsfeld v. Forum for Academic and Institutional Rights, the case arguing for the constitutionality of the Solomon Amendment. BuzWords is asking for predictions, and Prof. Yin and Prof. Kerr oblige, predicting a solid reversal.

Much as I'd like to agree with them, I predict that the court upholds the Third Circuit's opinion. I think the reasoning behind the case is stretched and tenuous, but I thought that about Lawrence, and I also don't believe we've heard the last from Justice Kennedy. I wouldn't even be surprised to see Romer work its way in here.

My reading of the tea-leaves? Five-four decision, Kennedy writing the opinion. Expect a broad reading of the facts, a broader reading of the law, and a Scalia dissent.

April 14, 2005

Maybe I'm missing something

TaxProf Blog is commenting on a WSJ story ($$ required) about people who paid no tax in 2001:

The Internal Revenue Service says that of the 2.6 million individual tax returns that reported income of $200,000 or more, there were 4,119 taxpayers who owed zero federal and foreign income taxes for 2001, the latest available year. That was up from 2,320 in 2000 and only 1,562 as recently as 1997. Typically, there is no one explanation for achieving tax-free status. It usually is a combination of factors, such as large amounts of tax-exempt bond interest, medical bills, charitable contributions, casualty losses (such as from a fire or earthquake), business losses and investment losses....

Is it surprising that number would rise between 1997 (when the economy was booming) and 2001 (when it was relatively sedate)? I would have thought most of the effect would come from those in 2001 who made money in that year but were declaring losses from 2000. (I've not looked up the article on Lexis yet, so I don't know if the question is answered therein.)

Questions like this just make me want to take a Tax class next year. Doing my own taxes is confusing enough. I don't know if someone who was carrying over losses from a prior year (say, in an S corporation) would be counted as not having the income in the present year (thus, being under the $200K income limit) or as having an income over $200K but deductions bringing taxable income beneath that.

It's a confusing topic. Me, I'm probably filing an extension anyway...

April 05, 2005

Who's Afraid of the Big Bad Activist

Prof. Larry Solum looks at the usefulness, or lack thereof, of the terms judicial activism and strict construction in his latest entry in the Legal Theory Lexicon. (Those of you studying Perspectives and Reg State, I highly recommend the whole series.) In turn, T. Moore over at Ex Post argues that activism isn't wholly useless as a term.

Prof. Solum is going to be here at Columbia today, and just like last year, I'm going to have to miss his lecture. Given that he was one of the people who helped me when this blog was young, I feel lousy about the fact that I've never been able to hear him when he's been in New York.

March 03, 2005


Citations to a number of articles by Professor Larry Ribstein ended up in my Note, and I found myself quite impressed by many of his ideas. I didn't even think to see if he had a blog. But he's the guy behind Ideoblog, which has now been added to the blogroll right under Professor Bainbridge.

That's about a year later than it should have been, then.

March 02, 2005

Roper, or Justice Kennedy Communes With The Innocence of Youth

One positive thing about being sick: while waiting to see the doctor, I could print out a copy of the Supreme Court's decision in Roper v. Simmons, which invalidated statutes allowing for the execution of those under 18. For those of you who haven't read it yet, the majority opinion is classic Kennedy: affirmation of the supremacy of the judiciary as moral arbiter, selective use of social science, and the feel-good assurance that this is all OK because it'll make us more like Europeans. As Scalia puts it in his dissent, the laws of several states have now been overturned through the awesome power of "the subjective views of five members of this Court and like-minded foreigners."

The majority opinion adds preposterousness upon preposterousness to try to make its decision match up with some kind of rule of law. First they rely on changed laws in a handful of states to come up with a "consensus" on "evolving standards of decency." Prof. Orin Kerr puts paid to this idea fairly well. Kennedy then spends a few pages gnashing his teeth over the fact that just two days ago, the United States was alone in the world in allowing the juvenile death penalty: all hail international law and the UN Convention on the Rights of the Child. Nothing I can say to this is more appropriate than Scalia's dissent, on pages 19 and 20, which highlights just how Kennedy and his ilk pick and choose selectively those human rights which are matters of "civilized nations" and those rights on which they're happy to let the U.S. stand alone.

(Best quote on the international law aspect comes from Will Baude: "But I must say that looking to treaties that the U.S. has refused to sign borders on genuine chutzpah.")

A legal analysis of the case would be pointless: there is no "neutral principle" anywhere within the majority opinion that gives it predictive value in a legal sense. How can you tell when a "national concensus" is forming if five states can form it? When will "international opinion" play a role in evaluating our statutes? And as Scalia points out, if the court honestly believed its view on the need for bright-line rules and the immaturity of minors, then its abortion jurisprudence wouldn't require judicial review for minors who wish to have abortions without parental consent.

But I'm being churlish. Why do we need consistency here? We're making law!

No, analysis of Roper is much more interesting as what it is: a political opinion. Again, Professor Kerr highlights the new strategy this gives to death penalty opponents:

One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as "objective indicia of consensus" that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

In the same vein, Waddling Thunder points out that death penalty opponents who also have some respect for federalism may now not wish to overturn the death penalty in their state, lest it be interpreted as part of an "evolving consensus."

The truly pernicious thing about this decision, however, is that it is final, a victory cemented in stone. Suppose, for instance, that tomorrow Justice Kennedy were to suffer a freak hot tub and granola accident that misaligned his chakras such that he no longer felt able divine the moral consciousness of our society. When he steps down and is replaced by... let us say, for the sake of argument, Robert Bork, how will a case ever come to the court allowing Roper to be reversed? And, if it does, how will indicia of a "evolving concensus" be presented? Perhaps enough upstart states pass laws allowing 16-year-old executions--each of which is struck down--as to overwhelm Kennedy's analysis? Or perhaps we should just sit back and see if the international concensus dissolves? After all, those nations upon which Kennedy relies don't have our limitations: they can withdraw from the UNCRC, but we cannot withdraw from the Supreme Court.

I'm sure those who see this as a moral victory are undisturbed by the one-way rachet that's evolved in cases like Lawrence and Roper. So let me disturb them a bit. One's liking of a rachet is directly proportional to who holds the handle. Now consider this: George Bush has three and a half years left in office, the current Supremes are only getting older, and there's no assurance that the Democrats win in 2008. Nominations are a comin', and Justice Kennedy has just upped the stakes.

When the next Supreme Court nomination comes before the Senate, why should Republicans reject the "nuclear option"? If control of the Supreme Court allows an administration to cement its policy opinions long after the administration is gone, why not pack the court with young, highly conservative justices? Better yet, why not pack them with justices whose jurisprudence is more conservatively "pragmatic" and less bounded by ideas like originalism that might constrain them in inconvenient cases? With the stakes this high--the possibility of cementing a conservative bias into constitutional law for a generation--why show restraint?

When people ask why I support the Federal Marriage Amendment, it's this kind of ruling that springs to mind. Say what you will about "enshrining hatred into the Constitution", it does say one thing: change too much through the courts, and the people will constrain your power. It encourages citizens to debate and convince their fellow citizens, not merely place their faith in lawyers and the legally-educated.

In the meantime, let's remember what this case was about:

Petitioner, Christopher Simmons, was born on April 26, 1976. On September 10, 1993, when he was approximately seventeen-years and five-months old, petitioner was arrested for the murder of Shirley Crook. Following a botched robbery attempt, petitioner kidnapped Ms. Crook, bound and gagged her. Petitioner walked Ms. Crook down a railroad trestle, bound her more, and pushed her, while still alive, over the trestle and into the Meramec River. Prior to the robbery, petitioner stated to his accomplice that they could commit a robbery and murder and get away with it because they were juveniles.

(State ex rel. Simmons v. Roper, 112 S.W.3d 397, 419)

Forget what I said about Kennedy's jurisprudence having no predictive value. Immature as a 17 year 5 month male might be, he wasn't that far off the mark.

February 07, 2005

The Professional Freedom of the Academic, or The Secret People of Colorado, Who Have Not Spoken Yet

It's notable that in the discussion of the fate of Ward Churchill, a University of Colorado professor who believes that those who died in the Twin Towers were "little Eichmanns" deserving their deaths, no easily-traceable left-right distinction exists. Indeed, while they vary in the degrees that they excoriate his views, none of the following blogging profs support Churchill's removal:

  • Eugene Volokh: "His article reveals him to be a depraved person"... but "[i]f the Ward Churchills of the world are fired for their speech, disgusting as it is, that would be a perfect precedent for left-wing faculties and administrations to fire right-wing professors for much less offensive statements."
  • Professor Bainbridge: "[T]he man is an ass..." but "I take a rather expansive view of the First Amendment. As one of those rare conservatives in the academy.... [I]t is in my self-interest to insist that tenure and academic freedom must be protected."
  • Glenn Reynolds: Echoing Volokh, but commenting on the "hothouse" in the left-wing academy that can produce Churchills.
  • Prof. Kevin Jon Heller of the Yin Blog: Noting that "To say [Churchill's statement] is a stupid comment is an understatement." Nevertheless, Churchill is "a tenured professor and one of the most important scholars of Native American history and politics in the US, if not the world," and "[Republicans] simply want to make an example of a scholar who has consistently criticized the US government's genocidal treatment of Native Americans." (His post mainly criticizes Republicans for attacking academic freedom.)
  • Prof. Brian Leiter: Asks "Will Academic Freedom Survive at the University of Colorado?" (and responds that it probably will, as Churchill is unlikely to get fired)

On the other hand, most of those attacking academic freedom come from outside the academy. (To pick only two links. Writing on the Summers controversy, Judge Posner makes comments critical of the idea of academic freedom, but he's not directly addressed Churchill.) To those familiar with my general attitude towards self-selecting professionalism, there will be no surprise in finding that I side with the latter. Respect between scholars and a wide degree of tolerance in academic discourse undoubtedly contributes to the generation and dissemination of knowledge. But those of us outside the academy--or even those of us who are merely students--should wonder why a principle must be so unwavering that it shields one who glories in the death of his countrymen.

(For the moment, leave aside the First Amendment/state action problems of firing him. I'm speaking here of the normative argument against academic freedom absolutism. Suffice it to say that were the conceptual barrier breached, the First Amendment problems are workable.)

For Conservatives, This Is No Aegis
While I can see the case of the conservative professors, best put by Volokh, one would hope that academics have enough faith in their fellows to distinguish between Churchill's ranting and a legitimate dispute about views. What makes the rant in question intolerable is not that the author makes equivalences between American actions that may have caused death in the Middle East, or questions the root causes of 9/11. What makes it intolerable is its hateful dismissal of the dead, individuals that Churchill has never met and is singularly unqualified to judge. Even if the subject of the discourse is within scholarly debate (no matter how I may disagree with it), certainly the content of the rant is unbecoming a servant of the state.

But of course, the attitude that brings one to "academic freedom" is not one of service to the state, it's an attitude of professionalism. Just as in the legal profession many of the protections the profession guarantees the public have an uncanny way of enriching lawyers, so in professional academia professional norms have a tendency to ensure a comfortable position for academics.

In the meantime, if this academic freedom is so good for conservatives, why do so few conservatives actually enjoy that freedom? After all, one must actually become tenured before one enjoys Ward Churchill's liberty. Is it really better for conservatives that while a few are sheltered within the ivory towers, the rest of conservatism must muster its forces outside the castle walls? (Indeed, as much as I distrust this Ohio provision, I can't say I'm surprised by it, and agree, it should be considered a shot across the bow.)

This is not to say that academics should be dismissed for their views, particularly their views within their academic speciality. And indeed, academic dialogue can and should get heated. But what good does it do the scholarly community to say that there are no limits to what can be said without sanction? After all, if the ostensible purpose for academic freedom is that it benefits the public, isn't there some interest in convincing the public that they're receiving value?

Walls Protect the Academy, But They Beg For Siege
Here, of course, lies the rub. Whatever the intrinsic value of knowledge, most of those who support universities focus upon their instrumental benefits: college education helps in getting a job, providing for doctors and other skilled professionals, or developing nifty new bits of technology. These goals aren't particularly furthered through subsidies towards those who would demonize the dead. Indeed, humanities departments--which tend to be much more politically polarized--do not always inspire such universal good feeling.

Far from protecting conservative academics, such tolerance for the Churchills of the world may end up harming them. Given the vast difference in political affiliation between the majority of academics and the population at large, every sputtering about "little Eichmanns" may cause those who speak without protection of academic freedom to wonder why they are subsidizing protection for those who are antithetical to their views. (Indeed, consider the rather patronizing tone of some academic bloggers, especially towards "red state" citizens.) But if the academy does shrink, under the current paradigm one doubts this will favor the right.

Good reason thus exists for the University of Colorado to find some way to deal with Churchill, and for conservatives to support them. Certainly there are constitutional arguments (firing Churchill might well amount to "state action"), and there are the self-imposed constraints of tenure and his contract. As much as some will quote Voltaire and his defense of free speech, the immediate counterargument is that merely because Churchill can speak does not mean that his speech must be paid for.

To the extent that the calls for Churchill's removal are political, they are the very type of politics to which one should listen: a movement founded in a deep and visceral feeling that something wrong is being defended by a group who claim a privilege for the benefit of all. The taxpayers of Colorado may easily decide that if the University cannot eliminate that which is a discredit to the state and the institution, the state does not need quite so much university after all.

January 25, 2005

Writing Contest Announcement

The Pacific Legal Foundation sent me an email last week asking me to hand on this contest announcement to their readers. I'm a bit late in getting the word out, but in case you're interested:

Pacific Legal Foundation is awarding $9,500 in its Sixth Annual Program for Judicial Awareness Writing Competition. This year's competition includes three essay questions, regarding the applicability of the Supreme Court's "rough proportionality" takings standard; whether the GDF Realty Investments v. Norton decision can be reconciled with the Court's modern Commerce Clause jurisprudence; and whether the concept of "regulatory givings" is consisten with the purpose and function of the Takings Clause. More information is available at our blog.

(announcement edited slightly for context)

January 21, 2005

Symposium on Sentencing

I would be remiss if I didn't mention that starting today and continuing tomorrow, the Law Review has been holding a symposium on sentencing. The Federalist Society's blog has been doing some liveblogging of the event, including the keynote speech by Judge William H. Pryor, Jr. Between law review work, my note, and a splitting headache, I missed today's events, but thankfully my classmate PG (also of De Novo) covered things.

January 12, 2005

In Search of Facts

Whether The American Constitution Society seeks "to revitalize and transform the legal debate, to counter the narrow conservative vision of American law that lacks appropriate regard for the ways in which the law affects people's lives" or is in fact the least necessary organization in legal education, the Columbia chapter has had a blog since October, and I've singularly failed to mention it. They use Blogger, but if they had an RSS feed I'd be linking to them.

Today, however, there's a column by "Liz" (full disclosure--I have no idea who this is) that's gotten me a bit confused, and so I'm going to "fisk" it. However, unlike your normal fisking, I'm going to start up front by saying I don't really know enough about genetics to make heads or tails of this. This isn't an argument. The questions asked below aren't rhetorical, they're real, and if any of my readers have some medical/scientific knowledge, please fill me in.

Continue reading "In Search of Facts" »

December 05, 2004

Y'know, because I have free time

So, I'll admit, I'm intrigued. Henry Waxman comes out with a real "Minority Report": a paper by the "Special Investigative Division" of the Minority Staff of the Committee on Government Reform, basically alleging that there are serious scientific errors in federally-funded Abstinence Based Education (ABE) programs. Both Heidi Bond and Amber Taylor write mocking, critical pieces based on this report. (Neither of them mention its rather partisan origin.) But most intriguingly, they both take the kind of risk that immediately pricks my ears up: relying on highly partisan source material without going back to the original sources.

Amber gets particularly upset about a story in a rather ridiculous little textbook called Choosing the Best Soulmate. (See UPDATE) Lest one think I'm actually for ABE, let me declare my skepticism here: given how little I think of most state-provided services, I'm not about to have a lot of enthusiasm for a textbook that purports to tell high school students how to find a soulmate. My guidance counselor wasn't much help in picking out a university: with due respect to the excellent faculty of my high school, they can stay far away from my love life.

Nevertheless, Amber's becomes annoyed at a paraphrase of a story found in CTBS. She cites the report:

One book in the “Choosing the Best” series presents a story about a knight who saves a princess from a dragon. The next time the dragon arrives, the princess advises the knight to kill the dragon with a noose, and the following time with poison, both of which work but leave the knight feeling “ashamed.” The knight eventually decides to marry a village maiden, but did so “only after making sure she knew nothing about nooses or poison.” The curriculum concludes:
Moral of the story: Occasiona l suggestions and assistance may be alright, but too much of it will lessen a man’s confidence or even turn him away from his princess.

Heidi, on the other hand, is annoyed by a table. Again, she cites the report:
In a chart of the top five women’s and men’s basic needs, the curriculum lists “sexual fulfillment” and “physical attractiveness” as two of the top five “needs” in the men’s section. “Affection,” “Conversation,” “Honesty and Openness,” and “Family Commitment” are listed only as women’s needs.

Now, both of their critiques are rightfully mocking assuming that the report is accurate. On the other hand, a cursory look through the report shows that it's hardly a dispassionate, objective study. Waxman wasn't interested in writing a piece that was fair. (Nor, incidentally, would one expect to see something that came out of the Majority's version of a "Special Investigative Division" to be fair. Washington is a place with little respect for the facts.) I'm not sure that this assumption is warranted.

I've spent some time today looking into the background of the report, and learning some of the reasonable criticisms of it. This is difficult, of course, because partisans on both sides heavily invested in using questionable data to buttress their claims, and both sides are heavily adept at spinning. And there's a couple of areas seemingly uncritiqued on the blogosphere that I wanted to address. So I started writing a piece, but found that I couldn't finish it. Essentially, there's no way to evaluate claims like the two above without actually getting a copy of the original material, reading it, and seeing if Waxman's critique is correct.

So I've sent off to both publishers, and a couple of New York state organizations that use the materials, asking for scans or photocopies of the relevant sections. It's not that much work, and should turn up some interesting data. It turns out that some of the books are actually being purchased (I have no idea if they're used) in the school system where I went to high school, so if any of my old high-school friends, or even better, one of my old teachers, has any of the following, please get in touch:

Choosing the Best Soulmate, by Choosing the Best Publishing, LLC, page 51 (or, preferably, 50-53). It might be noted that this book post-dates the latest round of SPRANS grants, so hasn't really received federal funding.

WAIT Training, Abstinence and Relationship Training Center, page 199 (or, preferably, 198-200).

In the meantime, it's worth taking a look at the websites. Any site with that many kids grinning in an "I'm not having sex, and I'm happy and healthy, damn it" manner is deeply, deeply spooky. It brought back my worst memories of "Healthy Teen" handouts and the various other paraphenalia of middle- and high-school health classes. Is there any government grant we can give these people such that they can afford to get their marketing done by somewhere other than Stepford, Inc?

(Update: Someone has written asking how I know that the CTBS textbook is "rather ridiculous." I'm afraid that what I meant here was not as clear as what I said. As is clear, I've not read the textbook yet, merely the website advertising it. However, given my memories of quite a few "health" or "sex ed" textbooks, I can't think of one that wasn't rather ridiculous: they had a tendency to talk down to students, gloss over important distinctions... come to think of it, most of the things Waxman is griping about. And they mostly had freakishly-happy looking teens on them. I really didn't enjoy my Health classes back in middle- and high-school, and I'm afraid it came through here.)

Then again, unless the Waxman Report makes the entire Knight/Dragon story up out of whole cloth, I'm at least willing to give it this criticism: what in heaven's name is a book targeted at junior and seniors doing using such crap metaphorical fantasy stories in order to make its point? No student is ever likely to be a knight nor a dragon, unless Hollywood becomes suddenly prescient. Leave aside whatever it says about gender roles, why is this considered effective presentation in the first place?

December 01, 2004

Epstein v. Moglen, Steel Cage Deathmatch Edition

OK, maybe not world-wrestling material, but the Columbia Federalist Society recently hosted a debate on Intel v. Hamidi. You can watch it on Realplayer here if you weren't able to get ringside seats.

November 30, 2004

The Third Circuit of UnSolomonic Wisdom, or I'm With Althouse on This One

The Third Circuit just struck down the Solomon Amendment, the law which stated that any law school not allowing military recruiters would not receive federal funding. I think the two justices in the majority were a bit high on the cutesy value of their decision. Prof. Althouse pulls out the most risible bit of the decision:

Just as the Boy Scouts believed that "homosexual conduct is inconsistent with the Scout Oath," the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that "homosexuals do not provide a role model consistent with the expectations of Scouting families," id., the law schools maintain that military recruiters engaging in exclusionary hiring "do not provide a role model consistent with the expectations of," id., their students and the legal community. Just as the Boy Scouts endeavored to "inculcate [youth] with the Boy Scouts' values--both expressively and by example," the law schools endeavor to "inculcate" their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. And just as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior."

(emphasis added) The Third Circuit judges are off their trolley if they actually believe this last sentence. Let me tell you from experience, there's nary a notice out of Career Services here that doesn't shout loud and clear--in ALL CAPITALS, in the case of our on-line recruiting site last year--that Columbia doesn't think that this is acceptable behavior. We received an email from our Dean last year pointing this out explicitly. And of course, anti-Solomon signs put up by student groups outnumbered pro-Solomon posters by about thirty-thousand reams to zero. If the Third Circuit thinks that Solomon was somehow gagging some of the most expressive people in America, it has a highly inflated view of government power. And anyone who thinks that Columbia, Solomon or no, supports even a shadow of Don't Ask, Don't Tell is playing the willful ignorance game. That last sentence is jurisprudence as a bad joke.

But Althouse makes a more important point, and one which has bothered me ever since I read the decision. Why is a law school like the Boy Scouts? The Boy Scouts exist as a private organization to foster certain civic and moral ideals. But that's it: there is no Scout badge that is the requirement for professional accreditation, nor does the state support Unauthorized Practice of Traditional Morality statutes. And if you want to practice a different set of values, there's always the possibility of setting up an organization to rival the Scouts.

None of this is true with regards to law schools. However "private" an institution like Columbia might be, it still earns its bread and butter off of what is nearly a state-sponsored monopoly: most states still require law school to practice law, and that school will normally have to meet the standards of the ABA. If you want to go to an ABA-law school, it cannot descriminate on the basis of sexual orientation. (See The American Bar Association, Standards and Rules of Procedure for Approval of Law Schools, Standard 210.) Unlike the Boy Scouts, you can't just go out and set up your own law school by different standards, at least if you want your students to have easy access to the profession.

The Third Circuit has presented law schools as a monolithic block of opinion: after all, the Solomon Amendment is inconsistent with "their students and the legal community." (Any JAG attorneys--presumably members of the legal community--religious lawyers or scholars, or anyone else who may be pro-Solomon, we can safely presume, don't count.) And I suppose that given the recent studies showing the overwhelmingly liberal tendencies of faculty in higher education, perhaps they're not entirely unjustified. But if any opinions are being stifled by the Third Circuit, its those of the minority of students who do back the Solomon Law, or merely don't care enough about it to find it worth losing access to military recruiters. After all, those students can't go join a law school which backs their own views--whysoever they may hold them--so long as the ABA holds sway. In a very real sense, they are actually powerless to go elsewhere.

Instead the Third Circuit goes along with the idea that law schools are being forced to express something. They're not--like the Boy Scouts were--being forced to elevate pro-Solomon scholars to their leadership. They're not even being told when recruiters come they must be allowed on campus without comment: indeed, the schools use every form of disapproval short of special WARNING: SUSPECTED HOMOPHOBE t-shirts. (And now that I've raised the idea, it'll probably be used next year.) They're merely saying that recruiters must be given access. Of course, there are students who, for whatever reason, think that the Solomon Amendment might not be such a bad idea. But if they do exist, they'd better shut up about it. Don't you know? Their expectations are not part of the law school.

November 26, 2004

First Up Against the Wall When the Revolution Comes

OK, so I'm not blogging much over this weekend: any time that I have is either being devoted to Property and my Clinic, or visiting my family. But Matthew Homann, the sterling fellow who runs The Non-Billable Hour, asked me to contribute to one of his Five by Five discussion panels last week, and he's just put the results online. Besides my own thoughts, there's Jeremy Blachman, Mr. Poon, Buffalo Wings & Vodka, and Ambivalent Imbroglio. Grab a cup of coffee, because we seem to have had a lot to say. If you're interested in the best twenty-five changes to law school that no one's every going to make, you could do a lot worse.

Or if that's too serious for the day, look at the recipe for Turducken, quite possibly the greatest subsidy to cardiologists ever devised. (UPDATE AND WARNING: If you're a vegetarian or your name is Heidi Bond, do not click the previous link. Thanks to my brother for pointing out Black Table's 'How to Do Idiotic Things' page.)

November 06, 2004

Things You Might Not Know About the Scopes Trial

Much as I love Inherit the Wind (both the old Spencer Tracy version and the 1998 television remake with Jason Robards, I can't help but realize that no drama ever captures the full scope of the reality underlying it. Truth is rarely so noble as fiction, much as we might wish it otherwise.

With that in mind, this post by Jim Lindgren of the Volokh Conspiracy reminds us that not every issue is as black and white as a good old movie. It's worth taking a look at just what was written in the book at issue. Reminds one of Tom's party conversation in The Great Gatsby.

September 22, 2004

Leiter Fantasy

It's almost silly, critiquing Brian Leiter after Professor Althouse has already given him such a thorough and well-deserved drubbing. But he's at it again.

Leiter likes to critique his online opponents--with terms like "moral cretins and self-important poseurs"--for failures of reason or reasoning. And yet on one subject, he seems to need no more proof than mere assertion, no more reason than the flimsy scrims that will satisfy his desires. That subject is the idea that President Bush is going to reinstate the draft.

I've already chronicled the absurdity of his assertion that Bush would do this through a bill entirely sponsored by Democrats. But now look at what Leiter has posted as "a good summary of the facts." A Common Dreams piece by Howard Dean, in which black is white and up is down. Dean seems to be anticipating sensible criticism and giving nonsensical replies:

President Bush will be forced to decide whether we can continue the current course in Iraq, which will clearly require the reinstatement of the draft. The Pentagon has objected to a draft but, the President has ignored other Pentagon recommendations in the past.

That's logic? The President has ignored recommendations in the past, so he'll ignore this one? True, he may ignore this one, but that's a possibility, a mere prognostication, not an argument. And given that reinstating a draft is political suicide, militarily unwise, and has no payoff for Bush at any point, it's a rather farfetched example of Deans--and Leiter's--skill at political haruspicy. Those livers must really be a mess.

(update: worth noting that Leiter doesn't quote the above. The piece he quotes, however, is similarly tenuous. Basically it states that our military is overstretched, and thus there must be a draft forthcoming. There is no discussion of other options, present solutions, or events that might change on the ground. Which of course, there wouldn't be, because it's a hit-piece designed to impress a certain conclusion upon the reader, not a 'summary of the facts.')

I will never understand Leiter's ability to hold a readership based upon articles and arguments like this. It's tempting to just challenge him to put his money where his mouth is, to lay a bet on Bush starting up the draft in 2005. After all, Leiter obviously believes this to be so true he can support it with arguments that border upon the fatuous. Wonder what I'd have to offer to get him to wager his blog?
(A response to Leiter's comeback is in the extended entry.)

Continue reading "Leiter Fantasy" »

September 21, 2004

Finally, some legal analysis

Some of you might have been wondering when I'd ever touch on subjects legal here again. Well, how's this: you get both law and sex in the same post.

Will Baude and Peter Northup are both debating the wisdom of a proposal by Professors Ian Ayres and Katherine Baker. Basically, the two professors want to reduce STD transmission and acquaintance rape:

This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant with a preponderance of the evidence. . . .

Baude spends quite a lot of time discussing (or edging around) sexual positions and the difficulty of establishing consent. Northup counters with this eminently reasonable idea:
We are therefore only dealing with cases where only one person has consented (if both had, we wouldn't be having a trial), and the only question is which one. The preponderance of the evidence standard means that if the woman can establish that the probability she consented is <50%, the probability the man consented must be >=50%, conditional on someone consenting. Thus showing that you probably didn't consent immunizes you from prosecution for RSC. Hence, in all the cases we are concerned about, there is essentially no risk of the statute backfiring and deterring victims from coming forward--or at least, a much lower risk of backfiring than the current risk of emotional/reputational damage from participating in a criminal sexual assault trial.

Which is true, as far as it goes. My trouble with the proposal is that it wants to impose a 'preponderance of the evidence' standard upon the defendant. He must prove, beyond a preponderance of the evidence, that consent was given not to use a condom. Ayres and Baker's support for this seems to me to be flaccid... if you'll excuse the pun.

Their policy argument basically runs thus:

The affirmative defense afforded defendants is amply supported as a matter of public policy. First, as discussed above, this defense gives women who are the victims of non-consensual sex more freedom to come forward and report the crime to police. Second, the difficulty of proving non-consent beyond a reasonable doubt makes the re-allocation of the burden more appropriate. Indeed, the state of Washington already allocates the burden of presenting and proving the issue of consent to the defendant in (far more serious) rape cases. Third, putting the burden of proving non-consent on the prosecution in cases involving unprotected first encounter sex would encode in the law a presumption that women willingly put their physical and emotional health at extreme risk. It would assume that women act recklessly unless the prosecution can prove otherwise.

(citations omitted) This is subject to a number of objections. First, the Professors mention only in a footnote that for the crime of rape, Washington requires proof of consent as an affirmative defense, but requires proof of forcible compulsion. This is hardly the same as criminalizing conduct where the sex itself was consensual, but not the condom usage. (Because if the sex itself weren't consensual, then the crime would be rape.)

But more important is the Professors' third assertion, that putting the burden of proof on the prosecution--to prove a lack of consent beyond reasonable doubt--somehow encodes a presumption of recklessness to women. Well, no. Actually, it just places a presumption of recklessness on a lot of sex acts, and that's probably a reasonable assumption. Let's put it this way: do you really believe that of all the initial acts of condomless sex in the country--which the Professors rightly point out is risky--the predominant number of them are acts of coercion? I'd at least want some statistical backing for this, and it would have to be pretty solid. Because otherwise, the presumption that women will put themselves at risk if the right payoffs are there--be they matrimonial potential or merely good sex--would seem to be a pretty good presumption. But Professors Ayres and Baker have replaced the Reasonable Man standard with one of the Eminently Sensible Woman.

Worse, the Professors' solution seems to be an end-run around Patterson v. New York (432 U.S. 197), which places the burden of proof on the prosecution to prove all elements of the offense beyond a reasonable doubt. They make a rather tepid effort to distinguish this by stating that what they're criminalizing is first time unprotected sex, not non-consensual sex:

We think there little doubt [the proposed statute is constitutional] for one simple reason: Our statute does not criminalize what rape statutes criminalize. Our statute criminalizes unprotected sex. Rape statutes criminalize nonconsensual sex. . . .It would be perfectly possible to be guilty of rape, but not guilty under our statute.

But is it? Let me go out on a limb here and say that this is the affirmative defense that eats the crime. I think it's safe to say that the vast majority of first-time sexual encounters that do not involve protection are consensual on both sides. By adding the affirmative defense, the the proposed law makes the real crime the lack of consent, not the condomless activity. Otherwise, you'd criminalize the vast proportion of it. [1]

Here, the Professors run smack into Justice White's Patterson opinion, because for that the prosecution must bear the burden of proof beyond a reasonable doubt. The professors show their true colors a few paragraphs later:

We have included a defense of consent both because, somewhat counterintuitively, it makes it more likely that acquaintance rape will be prosecuted, and because consent qualifies the perceived egregiousness of the defendant’s behavior.

But of course, if the authors are being honest, it will not make it any more likely that acquaintance rape will be prosecuted. Rather, it makes it likely that "reckless sexual conduct" will be prosecuted--because that's the crime that's going to be charged. The authors wish to use that net to catch quite a few rapists which they feel are being unpunished. Which is fair enough, but precisely the kind of procedural jiggery-pokery that Patterson sets out to prevent.

(update) The second justification for the affirmative defense turns upon the purely bizarre. Read the last bit of that sentence again: consent qualifies the perceived egregiousness of the defendant’s behavior. But does it? If the crime is really reckless sexual behavior, then if the 'victim' of the crime consented, they are by definition another defendant. They too engaged in consensual reckless sex, although they share the same defense. Somehow, two people engaging in reckless conduct likely to bring them into contact with STDs--the ostensible purpose for the law--are somehow less culpable?

In any event, you can't fault the Professors for putting forward a provocative article. But in the real world, I think their statute gets struck down pretty quickly.

Update: As I keep considering this proposal, the unique nature of sex and the uniquely one-sided nature of the articles assumptions make me wonder how it would fit in with the rest of criminal law. For instance, if both parties set out to commit reckless sexual conduct, even with them both consenting, can they be charged with conspiracy, even if they might not be guilty of the underlying charge? I'll admit, conspiracy was never my strong suit.

[1]: And if it is possible for one to be guilty of reckless sexual conduct without being guilty of rape, it's difficult to see how: these would be cases in which... what? The woman said, "Yes, honey, but only with a condom... no... oh, well, ok yes"? Simply put, the mind boggles. I can see how it would be easier to prove the facts for RCA than for rape, but under any given set of findings that would support a RCA conviction, I can't think of how you wouldn't get some kind of sexual assault.

August 14, 2004

Keyes to the Kingdom

I find I never really have to check IrishLaw. I always know that she's posted something interesting because it's reduced Chris Geidner to fits of apoplexy. He's sort of my canary in the Mines of Moritz Law School, if you will. (More on McGreevey later.)

Of note recently, she came out in support of Alan Keyes (the new Illinois Republican Senate candidate, because we couldn't draft Ditka) speaking on abortion, in which he voiced his disapproval of abortion even in cases of rape or incest. Well, actually, she disagreed with what Will Baude said about Keyes:

Well, that is an argument. It's a terrible one, but it is an argument.

Abortion is not designed to punish the aborted fetus ("killed baby," if that terminology is more to your liking)-- it's designed, in the case of rape and non-consensual incest, to restore a wronged person to her "whole" state. Now if Mr. Keyes means that innocent people (if indeed a fetus is one) should never ever have costs, especially very large costs, imposed upon them by anybody else in the interests of justice, that is an interesting position (though it probably has to be asserted rather than argued).

To which IrishLaw responded to the rather obvious logical weaknesses in that little rebuttal. Who cares if abortion is not designed to punish an aborted fetus? So long as it actually does inflict harm upon the fetus, and one considers the fetus to be a living individual as Keyes does, the intention with which it is done is irrelevant. And of course, while the idea that we should inflict death upon an innocent in order to avoid harm to a third party... well, perhaps it has to be asserted rather than argued, but it's certainly not foreign to our justice system. While one can attack the assumption upon which Keyes' logic rests--that a fetus is a person--the conclusions which follow that assumption are not a terrible argument. [1]

Of more interest is Baude's response to IrishLaw, clarifying his view on whether he would support an abortion even if he believed such a fetus were alive:

Actually: As a consequence of Michael Green's Ethics course last spring, I have decided that I tentatively would support abortion, in the case of rape...even if a fetus is to be treated as a human being. That's because I take a very broad view about what measures of self-defense one should be allowed to use to protect oneself against unwanted invaders.

Now here we have an echo of that "fetal invasion" riff that rising Columbia 1Ls will get introduced to if they have my former Prof. Perspectives. And I hope they will find it the same unsatisfying confusion of the metaphorical and the literal that I did.

It's difficult to tell exactly what Baude is saying here because he puts so little detail into it, but it seems that a man who has shown no fondness for the idea of original sin is nevertheless enamored of an idea of original volition. Remember that we are granting Keyes the idea that the fetus is an individual and a person. Mr. Baude is now considering that fetus to be not only a person but an invader. And yet how does something without volition invade? How does something which never existed outside the womb somehow force its way into it?

What is actually happening here is that a right to self-defense is being invoked because it's more sympathetic than a right to 'bodily autonomy,' particularly if that right is called upon to justify the elimination of another individual existence. But a fetus is not an attacker: it does not in the general course of things consciously seek to destroy or even harm its mother. It is not an invader, not even in a case of rape: it is merely the result of an invasion. If one posits--as Baude must to state that IrishLaw 'got it wrong'--that the embryo or fetus is human being, then Baude is stating that it is just to punish an innocent being with death not even as a preventative for further psychological or mental harm to the mother, but to "to restore a wronged person to her "whole" state." Such is the restorative justice of the sacrificial lamb, and is not so clear in ethics as Mr. Baude would try to make it.

[1]: One might, I suppose, accuse Keyes of lexical inaccuracy: "I've often asked people: So we are supposed to punish an innocent child because his parents have committed an offense like incest, or his father an offense like rape? Would you want to be punished for the deeds of your parents?" The word "punish," in all but its more colloquial terms, implies the infliction of harm for the sake of an offense. To the extent that Baude is making that distinction, it seems rather trivial. "So are we supposed to make suffer an innocent child because his parents have committed an offense?" loses none of the moral authority Keyes is summoning, even if his original is technically inaccurate from the viewpoint of a penologist.

August 12, 2004

Ignoring Persuasive Authority

In a very interesting post at De Novo, PG writes regarding Amanda Strasser's eagerness to attend her sectarian law school. I'm sure she didn't mean the comment to have all the meaning I'm about to give it, but one of her phrases struck me:

However, apparently the only way to get an ethically-integrated legal education is to attend sectarian law schools. Unfortunately, I don't see the Bible -- or Torah, or Koran -- as a persuasive authority, so such schools will have little place for me.

(emphasis mine)

For the rising 1Ls who are reading this, a very rough differentiation between persuasive and binding authority. In our system, a holding in a case has binding authority if it is issued by a court superior to the court considering a case. For instance, most if not all of the rulings of the Supreme Court are binding upon all lower federal courts, and the rulings of the California Supreme Court will be binding upon lower California courts. (This is a bit rough and eliding over exceptions.)

But persuasive authority is much looser. A court may consider the decisions of just about any court to be persuasive authority. It merely feels that the decision of its fellow court to be wise, appropriate, or... well, persuasive.

Now, as I said, I suspect that PG was using persuasive authority in a purely poetic sense. Nevertheless, I sometimes wonder why some of the more militantly atheist or agnostic spend so little time actually considering religious thinking--why it doesn't count as 'persuasive authority.' (Not, incidentally, saying that PG is militantly agnostic.) After all, I share PG's agnosticism, but nevertheless spend a fair amount of time reading religious texts, or books about religion. (Indeed, my readers are probably sick of references to Chesterton, C.S. Lewis, or Dante.)

Even supposing one doesn't believe in a Supreme Being--or in the case of my particular brand of agnosticism, believe strongly that the existence of god is actually unknowable--these are books that say a lot about how societies organized themselves, and what some very, very insightful people thought about how humanity works, and how it should work. Take, for instance, one issue that PG raises, regarding Biblical Dispute Resolution, citing Matthew 18:15-17. Now, Biblical Dispute Resolution is a much bigger topic than the simple exegesis of three lines of biblical text, but boiling them down to their essence, they say: if you've got a problem, go talk it out with the person first; then if that doesn't work, go with a few fellow friends as witness, and talk again; and then finally, take the matter to the church. Only afterwards treat him as a heathen. (And actually, I have no idea what that last means: does it mean take him to court, or employ some extrajudicial remedy? Here my knowledge of history and scripture falls apart.)

It's not bad advice, in many ways. Whilst the comments section of PG's post immediately points out some flaws--it's not wise if you think the guy you're going to talk to is dangerous, violent, or otherwise vindictive--if you interpret it with a bit of common sense and not as an immutable instruction, it just puts forward a good basis for dealing with fellow citizens. Attempting to mediate, without invoking the law, in cases of dispute avoids not only stress upon the legal system, but a great deal of anxiety and negativity. A humble request for justice will often get one much more than well-written brief, especially since the first doesn't require paying a lawyer. As the scripture itself says, "if he shall hear thee, thou hast gained thy brother."

The comments section makes a few quibbles, mostly easily disposed of. How would this work between members of different faiths? (But of course, that's easily surmountable: in many situations individuals are willing to have disputes resolved by leaders of other faiths, if they feel said leaders are honest and impartial. Indeed, I can name you at least one priest and two rabbis I wouldn't mind sitting as arbiter for me.) How would it resolve the same-sex marriage dispute? (PG glides straight over the idea that perhaps this shouldn't be decided by our governmental courts, or the idea that this gets decided in legislatures.) No form of dispute resolution covers every style of case, nor does any completely avoid recourse to the courts. But none of these remove the main point: if one doesn't interpret Matthew 18 as an exhorted commandment, it's pretty good instructions for ethical and moral behavior.

None of which says that the Bible should be law. Law functions differently: for one thing, it's the prescription and proscription of the use of force by society against its constituent members. But take, for instance, the immortal McDonald's Coffee Debate which has spouted again over at the Clerk's. (It's even inspired it's own self-referential satire, amusing in itself.) Most of the argument boils down between the Clerk's very good description of the positive law--what product liability actually is--and others arguing differing normative positions as to what the law should be. Without taking sides in that heated debate, it's worth noting that moral authority from any number of religions might be invoked with persuasive normative force. Ditto for suits against tobacco or fast food companies. Whatever the law actually is, it doesn't exist in isolation, and its ethics shouldn't either.

Most of the attempts to do so--to invoke some kind of completely areligious moral order--betray a hostility towards religion that is both unwarranted and most often uninformed. After all, because I'm an agnostic and believe that the existence of God is unknowable, I have a great freedom. The entirety of religious thinking, the thoughts and beliefs of all of mankind's history, are laid out before me to learn from and incorporate. Certainly, I should look at them critically--some of the areligious forget that looking critically at one's faith is normally an obligation of that faith--but they're there to allow me to be persuaded. Avoiding that should not be an article of my own faith.

There's hope for legislatures yet

And in legal news today, the California Supreme Court declared that Gavin Newsome, the mayor of San Francisco, didn't actually have the power to declare a law unconstitutional. Of course, whether California will follow Massachusetts down the path of matrimonial kritarchy is yet to be seen, but at least this little bit of anarchy's been stopped.

Hat tip to Chris for the pointer. Guess I've not been following the news lately.

June 27, 2004

Honest Question: Are Fingernail and Hair Living?

The NYT today carries an editorial that confuses me on several scriptural points, but mostly confounds my knowledge of biology:

Some, deprived of the Onan text, say that abortion is forbidden by the scriptural commandment "Thou shalt not kill." But that commandment does not cover all human life. My hair and fingernails, while growing, are alive with my own human life. Semen and ova have human life even before their juncture. They continue to have it after mingling — for example, the fertilized ovum that does not lodge itself in the wall of the womb. Yet no attempt is made to retrieve such "dead" detritus and give it decent burial.

Ignore the obvious problems with the statement: a fertilized ovum that doesn't lodge itself in the wall of the uterus hasn't been killed in any but the most strained of senses. The article's filled with rather curious assertions. But my understanding was that hair and fingernails were actually not alive: that they were dead tissue. Am I wrong here? (Biology is not my strong suit.)

June 25, 2004

There is being charitable. Then there is simply being dishonest.

An update on the unfortunate comments of The Honorable Guido Calabresi. It appears that the judge has issued an apology to the 2nd Circuit. But the story doesn't end there. Not if you are under the misguided impression that the New York Times is anything like an honest paper.

The article linked to above is from the NYT website, which carries the coverage via their AP wire. But now look at how that story is altered when it gets into the NYT's New York Region section.

Conspicuously missing from the Times article:

Calabresi went on to say the public should expel Bush from office to cleanse the democratic system. ``That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy,'' Calabresi was quoted saying.

(emphasis mine)

On the other hand, this paragraph is a Times exclusive, as far as I can tell:

Judge Walker [chief judge of the appeals court], who by coincidence is President Bush's cousin, did not suggest there would be any further action against Judge Calabresi.

(emphasis yet again mine)

Now, for anyone who knew a damn thing about this affair, the scandal was that Calabresi called for Bush's removal from office: the comparison to Hitler was just a sideline. That, however, gets not a mention from the Fading Lady's writer, who makes it sound like the entire apology is for a Hitler comparison. On the other hand, She can't resist a quick intimation that maybe this is all some form of nepotistic tomfoolery. One more reason to read the Washington Post...

(links via Howard Bashman via The Clerk

More Substantive Criticism of Sunstein

Professor Sunstein, guest-blogging over at the Volokh Conspiracy, is trying to differentiate between constitutional requirements, policies, and what he calls "constitutive commitments." The result is a bit of a muddle:

Constitutive commitments have a special place in the sense that they're widely accepted and can't be eliminated without a fundamental change in national understandings. These rights are "constitutive" in the sense that they help to create, or to constitute, a society's basic values. They are also commitments, in the sense that they have a degree of stability over time. A violation would amount to a kind of breach - a violation of a trust.

Current examples include the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; the right to protection through some kind of antitrust law. As with constitutional provisions, we disagree about what, specifically, these rights entail; but there isn't much national disagreement about the rights themselves. (At least not at the moment.)

Randy Barnett takes issue with the concept in great detail, and I'll let you read his piece. From my point of view, the entire thing suffers from overdefinition.

Sunstein is careful to separate these 'commitments' from any formal type of law. But in that case, it's difficult to understand how such 'constitutive commitments' are any different from a political more, a custom, or even--in the case of FDR, since Sunstein is talking about his 'Second Bill of Rights'--a political agenda. Perhaps it's merely a matter of degree: such a 'commitment' merely represents an agenda that would be difficult to change, perhaps because it's exceptionally popular. But even that doesn't ring with the tone of his argument. And then he let's you see a flash of what sits behind the curtain:

We could learn a lot about a nation's history if we explored what falls in the category of constitutional rights, constitutive commitments, and mere policies -- and even more if we identified migrations over time. Maybe some of the commitments just mentioned will turn into mere policies. Sometimes policies are rapidly converted into constitutive commitments (consider the 1964 Civil Rights Act). Sometimes constitutive commitments end up getting constitutional status (the right to sexual privacy is, to some extent, an example, with the line of cases from Griswold v. Connecticut to Lawrence v. Texas).

A little bit of analysis of that paragraph yields some pretty entertaining results. After all, we're now talking about the difference between 'commitments' which have been adopted or endorsed by no one, and 'mere' policies. These policies have been adopted according to a process (at least grudgingly) agreed to by the entire society, embodied in a Constitution, but nevertheless, they rate that dismissive 'mere.'

On the other hand, look at this 'right to sexual privacy,' a constitutive commitment that vast segments of the nation haven't committed to, not even in a legislative form. What makes it a commitment? The fact that there "isn't much disagreement about the rights themselves," apparently, although the ongoing debates on homosexuality, abortion, and gender would seem to put a lie to that idea.

True, were it put to a vote, there'd probably be a democratic concensus behind the ideas embodied in Roe or Lawrence. (Though in Roe's case, the fact that there probably is one argues for overturning it.) But in which case, such 'commitments' aren't anything of the sort--they're just broad concensuses which do have strong oppositions. So why would you need this term? What does it distinguish?

Well, two things, really. First, these are 'constitutive,' a word only a fragment away from 'constitutional,' and thus give a feeling of being grounded, basic, stable, and--nicely--right-thinking. These are the opinions of those make up the bedrock of our nation, it seems. Secondly, they're 'commitments': something which implies an agreement to which one really should ascribe. After all, one can break a commitment to ones wife, to one's children, to society, and now these can be constitutive. Thus, those who dissent against such ideas are not merely an opposition of differing views. No, now they have the flavor of an oathbreaker, an infidel, one who rebels against the constitutive agreements of his society.

Which brings us to the last objection: Sunstein is stressing a term which places a premium upon power and communication. It's elites with access to media, power, and influence who will be able to declare these 'commitments,' and there is no formal system for restraining them. After all, Lawrence is a decision in its infancy, but it's a commitment; Bowers, it appears, was not. Nor was this 'commitment' to sexual freedom strong enough engage the political process, or else Lawrence would not have been necessary. Oddly, 'mere' policies seem more difficult to implement than things that Sunstein would consider a 'violation of trust.'

In the end, there's already good words for the hodge-podge of concepts that Sunstein is tying together: mores and customs; concensus; plurality viewpoints. They simply don't have connotations that allow one to gently, gently rebuke those who disagree with you.

June 24, 2004

A Further Question

Scheherazade asks, appropos of her Five by Five entry, what five things bloggers would change about the practice of law, if they could. Others have responded.

It's a great thought experiment. My question, however, is a bit more down to earth: what five things will you change about the practice of law? Because it's how these things are made concrete by individuals that matters.

I'm going to think about it. Maybe by the end of this summer I'll have come up with my five oaths.

June 21, 2004

Y'know, If I Weren't Already Involved

...I'd be seriously, seriously thinking about trying to marry this woman. (Don't worry, she's got more sense than to say yes.) Sheherazade Fowler manages to consistently post some of the most brilliant stuff about the legal profession. I'm happy to be working in Tokyo over the summer--it seems a more sane legal environment than New York--but when I worry about the future it's just wonderful to see Sherry keeping some perspective on things.

Over on The[Non]billable Hour, she and a number of other invitees are being asked to list what they'd change about the legal profession.

Hear, hear! Simply one of the most brilliant:

Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm.

Read all of the entries in the series--it's food for thought, especially for those of us starting out into this system. And for you Rising 1Ls out there--if you're looking for a mentor, you could do worse.

June 06, 2004

Sic Transit Gloria Sony

Finally, a post that has something to do with law. At least sort of, and it's a long way in, but bear with me.

I've just gotten back from Akihabara. I forgot how big the electronics district of Tokyo actually is, and much of it has changed. What hasn't is the fact that there are literally hundreds of shops there selling almost exactly the same set of goods.

What shocked me was that one of my co-worker's observations last week was correct: there really wasn't a 'must buy' Sony product. And while I'm hardly the first to notice that Sony's diversification from hardware into media and entertainment has killed its edge with lifestyle products, it really hit home today.

For most observers (I read it first in the Economist) the story goes something like this: Sony used to make really hip gadgets that everyone had to have, and that redefined our lifestyle: portable stereos, boom boxes, and most significantly, the walkman. But then, in order to expand its market share, it started into media, and now the digital rights business (which wants to restrict anything that could copy data) in in conflict with its hardware side.

You can debate it around the edges, but it's a fairly solid story. And there's nothing that makes me more convinced than looking at the Librie (link run through Babelfish for my non-Japanese audience), a product that would do everything I'd dearly want it to, if only Sony would sell its content wing.

As an e-book reader, the Librie has a brilliant e-ink technology. Sure, it won't look half so good two years from now, but trust me, right now it looks as close to paper as you'll get in an electronic format. And unlike Sony's new answer to the I-Pod, it looks like the engineers actually questioned what users wanted and provided it: an interface that's usable whilst standing on the train, a paper-back sized reading area, and about as cunning a dictionary lookup function as you can get without a touchscreen.

I'm tempted to buy it. It would do what I want: provide an easy and portable way to take Japanese books with me, together with a dictionary feature that would cut down the time it takes to read them. For under $400, I shouldn't have had any second thoughts at all.

Oh yes, except for Sony's content gurus.

You see, Sony is committed to its OpenMG solution for digital rights management. I've been reading about it today at a number of Japanese websites, and it appears that the same strategy underlies their music, data, and video solutions. Despite its name, OpenMG seems to be 'open' in the same way that Microsoft is 'dedicated to open source solutions.' After a good half-hour of trying, I can't find software that will let me publish a document into BBeB (Sony's E-book format) or add a custom dictionary to the machine.

There's no technical reason this isn't feasible. It's simply that Sony owns a lot of content, and book publishers have been loathe to make content available in a format that's easily copyable. On the one hand, I can see there point: unlike music or videos, books are relatively bandwidth-light, and once digital, it would be easy to distribute them on the sly.

On the other hand, the device's usefulness to me is correspondingly reduced: imagine how nifty it would be if I could shift PDFs from my computer to my Librie. Particularly with difficult-to-read documents, this kind of tool would be a real charmer. And just imagine the boost that Sony would get if its document format became ubiquitous: people might be willing to exchange documents between, say, lawyer and client via memory-sticks. (As it is, they're basically a Sony technology.) Actually, you don't have to imagine the boost: just think how much mileage Adobe gets out of Acrobat.

More than that, I have to worry about what happens if this experiment of Sony's fails. At the moment, I'm limited to the Ebooks I can buy at Timebook Town. If for some reason--say the e-book equivalent of MP3--this format doesn't go over very well, I've got a $400 lemon.

It's still tempting. At the end of the day, it's the kind of tech I've wanted to have for ages. But if any of my readers know anyone at Sony, please, please, please tell them to divest their content business. It's just a distraction.

As for the promised legal topic: I've said for quite a while now that the way in which we handle copyright needs to be changed. At the moment, a number of artists and authors get very, very rich, and many stay in penury, but who really profits from the system are distributors: record labels, publishers, those who make sure that the limited shelf space we have for records and movies, the limited paper we have to print books, is used for more or less good stuff. As we move into a digital world, though, these roles become disintermediated. In an era in which the internet makes direct publishing a possibility, and every form of information reduces more or less seemlessly to digital data, the gatekeepers are no longer needed.

I don't know what such a system would look like, yet. Maybe writing would change such that editors would work for freelance, and authors would pay them to make something marketable. I don't know. What I do know is that the system as it stands is keeping new technologies from developing, technologies that make our lives fuller, better, and easier. When copyright law is no longer fulfilling that purpose, it's time to change.

June 05, 2004

No, no, no, there's no such thing as an 'activist' judge

Read the Clerk on Judge Gertner. I'd pay good money to see a debate between him and Chris on this one. Whatever one may think about her being right on the result, read all the way to the end: the Clerk seems to have her pinned to the mat with the law on this one:

However, it appears that Judge Gertner simply ignored Massachusetts law in this case. On May 18, 2004, some ten days before Judge Gertner issued her opinion, the Supreme Judicial Court of Massachusetts found that, under the state's law, a false accusation of homosexuality is actionable as defamation. Callahan v. First Congregational Church of Haverhill, 808 N.E.2d 301, 304, 314 n.19 (Mass. 2004). The fact that the Supreme Judicial Court of Massachusetts references cases that predate Lawrence and Goodridge in support of this contention demonstrates that Judge's Gertner's conviction that those cases alter the defamation calculus is not shared by the state's high court. See id. at 314 & n.19 (citing Gray v. Press Communications, LLC, 775 A.2d 678, 683-84 (N.J. 2001), which collects other cases). It could be that Judge Gertner just failed to note the recent Massachusetts decision, of course, but her opinion gives no indication that she ever looked. On this specific topic she notes only cases from "outside this jurisdiction" without ever stating that none existed from within and then discards them on the basis of Lawrence and Goodridge. Morever, the judge's specific language simply indicates that her own policy preferences are what is at work rather than her understanding of Massacusetts's law (e.g., "I reject the offensive implication of plaintiffs' argument . . . .").

May 25, 2004

Nude Dancing, Venom and Vitriol

Amanda Butler and Will Baude have been going back and forth a bit about what constitutes 'expression,' and specifically whether nude dancing should be seen as such. I'm not going to add much to the debate. From a non-legal perspective, I side with Amanda: just on a gut-level, the idea that 'freedom of speech' entails bringing one's milkshake to the yard is a stretch of titanic proportions. On the other hand, I also think substantive due process is pretty much a joke: a legal rule that all lawyers should know--it's the law, after all--but intellectually indefensible to all but the most committed realist. Being on the opposite side of most commentators, you may thus feel free to disregard my constitutional mutterings.

But whatever you think of Supreme Court jurisprudence--and there's nothing like a good Con Law course to make you think less of it--you should read the nude dancing cases. They contain some of the most meretricious logic, the most vitriolic dissents, and the most entertaining rhetoric. In particular, you should read City of Erie v. Pap's AM, 529 U.S. 277. It's here that O'Connor once again makes constitutional law out of whole cloth, announcing her expansion of a "secondary effects" test to justify a state requirement that nude dancers wear pasties. (Briefly, that the state can restrict speech rights if the ordinance would tend to reduce the 'secondary effects' of that speech, in this case prostitution, crime, STDs, what have you.) In the closest thing to common sense you'll read in any nude dancing case--in which the phrase 'erotic expression' places stripping on a level no customer of Pap's would ever give it--Stevens has a brilliant dissent (at 299-300):

The Court's mishandling of our secondary effects cases is not limited to its approval of a total ban. It compounds that error by dramatically reducing the degree to which the State's interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct.

In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Ante, at 20. To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.

How true. Reading the main opinion, it does rather seem like O'Connor believes pasties and pimps have roughly the same relationship as garlic and vampires. It's quotes like that which let you get through Con Law.

Anyway, I'm off to Grand Rapids for some pre-Tokyo shopping--I promise I'll give you more worthwhile updates when I return.

May 20, 2004

God Save the Clerk

My entry on kritarchy spawned a lot of commentary, including a number of people insisting that I must be out of my head, because I was fundamentally arguing against judicial review. Typical of the genre was:

That's our political process at work. Sorry you don't like it. If you think it really, really stinks tho, you're free in this country to gather the support of a super-majority & change things.

I was going to write a rather long entry explaining that one can support the idea of judicial review, but believe that it should be exercised in a more prudential fashion, reflecting the competencies of the institutions of legislatures and judiciaries in settling claims. Chief among my points would have been the observation that Brown didn't integrate very many schools, but the 1964 Civil Rights Bill did; and that Roe v. Wade hasn't ended the debate the way legislative settlement has in Britain. Essentially, I was going to point out that the discussion we were having was a rather complex legal argument, not just a tenth-grade civics lesson.

But you see, I've got the write-on competition to finish today, which means I really shouldn't spend the time. (At least, if I want to stand even a slim chance of getting on law review.) Thankfully, I see that the Curmudgeonly Clerk has made my argument for me:

However, when arguable and ambiguous rights such as those at issue in decisions like Lawrence (the homosexual sodomy Supreme Court case) or Goodridge (the Massachusetts gay marriage case) are under consideration, employing the words "tyranny" or "judicial review" as a rallying cry might make rhetorical sense, but it does not really address the matter at hand. Critics of these decisions are not arguing for anything like tyranny, nor are they denying judicial review any place whatever. And libertarians do the debate a genuine disservice when they fail to even acknowledge that the countermajoritarian difficulty has real salience when the Court announces new substantive rights on slim textual pretext.

Those who would stake out such an ambitious role for the judiciary have a substantial burden of persuasion to carry. Although it has long been with us, the notion of judicial supremacy, which is what Milton and libertarians advocate rather than simple review, has not been the predominant conception of the federal courts until quite recently. See Larry Kramer, We the People: Who Has the Last Word on the Constitution?, Boston Review, Feb./Mar. 2004. What I find particularly lacking about the libertarian arguments presently circulating is that they seem not grapple with this issue in a serious fashion. In addition, while keenly aware of the shortcomings of majoritarianism, they seem to be blissfully unaware of the dangers of imbuing a single, insular, and rather small institution with such awesome power and incontestable authority on the most inflammatory political subjects.

Read the whole thing. Seriously, the Clerk does this better than I could had I a week to put it together. The idea of trying for a post-graduation clerkship is looking better and better.

Note, however, that after this bloody write on is done, you'll be getting some better commentary from me, including:
*Things for up-coming 1Ls to read over the summer, assuming they're itching for it
*The pros and cons of Columbia's "Perspectives in Legal Thought" course
*A long post on preparations for going to Japan

The Amazing Ms. Lithwick

I share the Clerk's disdain for Dahlia Lithwick, possibly the most overrated legal commentator ever to put pen to paper. Particularly annoying is her use of rhetorical devices that my undergrad professors, let alone my law school professors, would laugh at:

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.

But even accepting that this was a 'persistent complaint of conservative commentators' (it's a massively trivializing generalization of a legitimate objection to broad judicial review), Lithwick's 'prescription' would only hold true if the opponents of gay marriage were judges.

The conservative complaint--properly written--generally runs along these lines: the judiciary should not ignore possible future outcomes, but should realize that as an institution it is competent at applying settled law, and be highly reticent to make new law when the outcomes of such a decision might be debatable. This would be because conservatives in general consider the legislatures to be more competent institutions for such things. (As, indeed, the Democrats did in the 1930s.)

Consideration of slippery slopes are properly a matter for consideration. (It's notable that she quotes Volokh as one who argues for taking slippery slopes seriously, but doesn't link to the article where he finds a slippery slope that leads to gay marriage.) They're matters of consideration for legislatures, commentators, and the public in general. Yes, they should be subjected to analysis, and some of the slippery-slope arguments being made are ridiculous. But the fact that Lithwick can't see the difference between the judiciary, a legislature, and a commentator rather proves the point that actual conservatives (as opposed to the hobgoblins she's dreamed up) are trying to make.

April 26, 2004

Something in the bucket...

As I've mentioned before, I don't really like marches. They tend to jumble up messages and become nothing more than incoherent imagery. They raise tempers without raising the level of debate. As I've been watching Chris take on Irishlaw bicker over an image from the "March for Women's Lives" in Washington, it's merely strengthened my general distaste for such 'action.'

I've only linked to the image here because (a) it's almost certainly subject to Reuter's copyright, and (b) it's somewhat distasteful. To describe it briefly, a man stands defiant in the midst of the march, holding up an image of a bloody fetus on a poster with the hyperbolic "ABORTION IS GENOCIDE." Around him, three women appear to be taunting him or dancing around him, holding posters of their own or showing off their t-shirts. The photographer captures a sense of antipathy and confrontation that evokes a sense of reasoned horribleness.

It's images like that which make me waver in my politically pro-choice stance. Unlike IrishLaw, I can see practical policy reasons for leaving the choice to carry a life to pregnancy in the hands of a woman. But at the end of every abortion, there's something that ends up in the bucket. We can bicker about whether that something is a 'human life' before or after a viable birth, but it's a potential, a something different from a tumor or a rotted tooth. Under different circumstances, it might be a subject of love and warmth, intelligence and kindness. And there it is, bloody.

I'm pro-choice, and I'm willing to accept that fact. I have no respect for those who picket abortion clinics or harass frail and nervous women after they've made or are making their choices. But there is also a cost to this policy--that something in the bucket--and I don't ever want to forget that fact.

I'm sure the counterdemonstrator is there to cause a disturbance: that's his intended role. Doubtless he's done his share of aggravation, and kicked up what trouble he can. Put him in front of a clinic, and I'm not likely to love an image of what he'd be doing. But his other purpose is to remind those of us who are pro-choice exactly what it is we're choosing: that we're making decisons about life and liberty, freedom and responsiblity. I can see ignoring him. I can even see pausing respectfully to observe him. What I can't condone is the taunting, the amusement, the confrontation, the dancing apparent in the picture. Because that image he's holding is what's being chosen by those marchers as a matter of policy: that is their end. Whatever rational reasons we may give ourselves to allow it, it's a horror not to be celebrated.

In the comments section of Chris's post, he takes me to task for describing the women as filled with "Distasteful hysteria, the triumph of identity politics over any reasonable moral principle." But really, I'm granting them the benefit of the doubt: that they're inspired by the heat of the conflict, women embroiled in a 'women's rights' march, and not by a genuine conviction that the image before them is forceless, costless or even laudable. Otherwise the marchers face that picture shouting, "Look upon our works, ye mighty, and rejoice!"

I'll stand by that statement of hysteria as one of hope, simply because if the women in that image are not hysterical, then they are horrifying.

March 16, 2004

"from his mother’s womb Untimely ripped"

I'm a C-section baby, born a month premature in a particularly silly breech-birth with the umbilical cord busily trying to strange me. Besides proving that I was uncoordinated even prior to birth, it's one reason I've been following the Utah case of a woman charged with first-degree murder for allegedly refusing to undergo a Caesarean with some interest. According to prosecutors her refusal to submit to the procedure was purely aesthetic.

Continue reading ""from his mother’s womb Untimely ripped"" »

February 18, 2004

Tremendous Findlaw Article

Wow. A truly impressive Findlaw piece from Professor Dorf analyzing the arguments against the Federal Marriage Amendment. While I disagree with him on the idea that the proposed amendment would make civil unions impossible to an appropriately creative legislature, he does a fine job of knocking down the straw man arguments being proposed elsewhere and boiling the argument down to where it lies: the FMA is wrong if you think same-sex marriage is right. Conversely, though he doesn't state it, I'd say the FMA is right if you think same-sex marriage is wrong.

Read the piece, but the three major arguments he defangs are:

  • The FMA is inconsistent with States Rights
  • Constitutional Amendments should not be used to shrink individual rights
  • This isn't the kind of thing you do by Amendment

My comments on some of the lesser points of the article are below, but really, they're not important, and mostly for my benefit. (This is a diary, after all.) It's a good article. You should read it.

Continue reading "Tremendous Findlaw Article" »

February 13, 2004

Missing the Point

Over at Crooked Timber, Kieran Healy is talking about what conservatives think, without talking to any real conservatives. He's dismissing the complaint that conservatives are underrepresented in academia, and how this 'challenges' our 'assumptions':

The trouble is that conservatives, by and large, tend to believe that people get what they deserve in life and that labor markets — whether for food service workers, corporate consultants, assistant professors or any other occupation — shake out fairly. When confronted with evidence of systematic racial or gender inequality, for example, they’ll go to considerable effort to argue that it’s differences in natural talent, acquired skills or personal preferences that are driving the outcome.

Which is, of course, a joke. Conservatives do believe something similar: that over time, in a free market, such biases will tend to even out in the aggregate. After all, if Mister Evil and I both own factories, and he discriminates against minority workers, I can hire better people at a lower price, and I'll drive him out of business. This takes time, but that's the basic mechanism.

Academia isn't like that, and Kieran's smart enough to know that no 'conservative' with half a brain believes that the market for corporate consultants works in any measure like that for academics. For one thing, find me a guy at PriceWaterhouse or Accenture who's got tenure. Universities don't compete with one another in the same way that the big consultancies do, nor do they compete for dollars in the same way. [1] The public teat of government alters incentives, to say the least: otherwise, why would all these law professors be incensed by the Solomon amendment. Some reasons for liberal academia (preference of academics for non-competitive environments, for instance, or for conservatives to go into higher-paying industry jobs), and some of these imbalances may indeed be fading over time as conservatives would expect. (Hence, the rise of the University of Chicago.) It's far from clear that a conservative with half a brain faces the 'challenge' Healy's putting forward.

This is the reason I very rarely read Crooked Timber, and instead prefer En Banc. Far fewer of the latter's arguments are structured like this:

1. I believe X.
2. (Conservatives/Republicans/whatever) believe (some version of X which is obviously untrue and hideously oversimplified).
3. I have no need to include quotes from actual conservatives, or indeed attack a single person with identifiable views rather than some vast amorphous blob that I can describe as I wish.
4. I am therefore correct. QED.

I try to avoid that style of argument (unless it's necessary for humor--but then I don't expect to be taken seriously), primarily because if my estimate of my opponent's view can be taken apart by a five-year-old child (see number 12), it doesn't make me look all that good.

[1] But don't just take my word for it: even leftish sci-fi authors agree with me. (Sort of off topic, but the ways in which academia, and particularly researchers, differ from the free market is a big topic of Bruce Sterling's Distraction, which I finished up last week.)

February 02, 2004

There are Coy Summer Associates?

As a still-unemployed 1L, I got a wry chuckle out of this parody of To His Coy Mistress. Though I think the rhyme could use a little work. (From Notes from the Legal Underground.)

January 31, 2004

Class Action Madness

OK, I've done my Civ Pro course. It had a large class-action component. And yet I'm reading over an email from Verizon Wireless (my cell phone provider) telling me that I'm a member of a class that will now get a variety of coupons for a number of things I don't really need, that won't save me any/much money on overpriced or unneeded services, in compensation for acts that they are not admitting they did which I don't understand why I was injured by.

I tried reading the email they sent, honestly. Much as Verizon doesn't inspire passionate customer loyalty in me, I don't see how anything alleged in the email hurt me, certainly not to the value of the vouchers offered. Either I'm too dumb to be a law student, or the class action system is mad.

December 17, 2003

Guaranteed to Make the Clerk's Blood Boil

Linked off of National Review, Trial Lawyers Inc. attempts to compare trial lawyers with major growth industries:

“Trial Lawyers, Inc.” behaves like the biggest of businesses, as it generates cash from traditional profit centers (like asbestos, tobacco and insurance), explores potential growth markets (like lead paint, mold and regulated industries), and develops new products (like suits against the fast-food industry).

I'm sure it overstates its case (sites with small-cap typefaces aren't known for their discretion), and I'm sure the Curmudgeonly Clerk will get around to debunking the most excessive bits of it when he gets a moment.

Still, the site puts forward an important qui custodiet ipsos custodes argument that I often feel gets overlooked by lawyers. Certainly law is not an industry, but its training and practice encourages restraints on trade that would not be countenanced in any corporate field. Training in law grants many both power and access to power that is denied to those outside law's embrace.

Every lawyer who cheered when the Supreme Court struck at the 'appearance of corruption' in politics through campaign finance reform should pause and wonder exactly what impression their $200,000 pay packets give to the community upon whom they work their wonders? I have to suppress a little shudder whenever I hear my classmates, a blawger, or an attorney critique the idea of 'self-regulation' in industry. What a cold day in Hell it will be when lawyers themselves acquiesce to an independent regulatory committee which, for instance, sets its fees, its opportunities, and its employment options.

December 12, 2003

Rhetoric and Reality

Chris over at En Banc points to this article about how Halliburton has been probed for overbilling. I can't tell if he thinks it's damning or not; certainly Howard Dean does:

"We've recently learned what many Americans have suspected for a long time -- special-interest contributor Halliburton is overcharging the American taxpayers," said former Vermont governor Howard Dean, a leading Democratic presidential contender. "Now this president is preventing entire nations from bidding on contracts in Iraq so that his campaign contributors can continue to overcharge the American taxpayers."
Ignore for a moment the fact that it's inconsistent of Dean to be all for 'buy American' if you're a steel manufacturer, but not support a similar policy for massive government contracts in Iraq. Even pass by the obvious question of why the EU, and particularly France, should get an economic windfall from a policy they bitterly opposed, absent some evidence it will be particularly useful. What are these accusations of dire overbilling? Apparently passing on the costs of a third-party contract for oil through Kuwait, and a communications error:
Halliburton's problem with the contract, a Pentagon official said, was that it failed to adequately evaluate the costs and operations of its Kuwaiti subcontractor. On the contract to operate mess halls, the official said that Halliburton told the Pentagon its subcontractor price would be $220 million. But auditors examining Halliburton's operations found that at that time, the company already had awarded a subcontract under which the cost was actually $67 million lower than that.

"You'd have to be pretty stupid" to do this on purpose, the official said, implying that it was an easy discrepancy to catch. He said he believes this was "a clear, obvious, miscommunication error" that resulted from a "disconnect" between the company's operations in the Mideast and its contracting office at its Houston headquarters.

At least that 'error in communication' is the kind of thing that happens in contractor/subcontractor situations, and why you audit. (Indeed, this has some relevance to my Contracts exam, in which contractor relationships are making common appearance.) Unless Dean has more information than the Washington Post, he's ascribing malice to what is most likely simple error.

Here's a prediction: the results of the audit will show no intent to defraud, but instead either simple errors or (in the case of the oil overbilling) a case of restrictive conditions in government contracts increasing requirements costs.

Here's another: if the prediction above is wrong, I'll publish an entry linking back to this indicating my error. However, Howard Dean will never hold himself accountable for an accusation of fraud. Nor will most Deaniacs. Indeed, finding no fraud will merely be more proof of greater 'corruption.'

December 05, 2003

Hacking Hatch

It appears that a Republican staffer hacked into the files of Democratic committee members in order to leak confidential documents on the Democrat's judicial confirmation strategies.

The majority of my training in systems administration came from the time I spent working in the U.S. Senate, so I'm watching this with interest. None of the stories I've found so far have the technical details of how this was done, so I can't sensibly comment. All I can say is that the sysadmins in the Senate were normally working hard at a difficult job, and I'd not be surprised if someone made a network share accessible that they shouldn't have.

(Yes, that wouldn't excuse a staffer who leaked the memos instead of alerting the SA that security was compromised. And it might have been deliberate 'hacking,' in the sense of an actual stolen password or trojan horse or something. I don't see it as likely, and my immediate if uninformed guess would be that someone took advantage of a barn door left open.)

If this happened because some non-partisan SA was negligent, my heart really goes out to him...

UPDATE: An astute commentator pointed me to this Opinion Journal article.

A statement put out last week by Mr. Hatch's office says that the accused staffer "improperly accessed at least some of the documents referenced in the media reports." That accusation bears scrutiny in light of how the committee's computer system is organized: Until Nov. 16, all Judiciary staffers used the same computer server and had access to a shared drive, a system put in place when Sen. Leahy took over as chairman in 2001 and hired his own IT staff.

The Leahy techies neglected to put up a firewall between the GOP and Democratic staff, making it possible for all staffers to read everything posted on the shared drive. No one hacked into anyone's private files. These are, in effect, Leahy leaks.

So why is the hapless staffer being hounded? And why is no one reporting the much bigger story of the memos?

Now this I buy. I don't know much about Senate committee IT staffing, but it sounds a lot more plausible. The term 'firewall' seems rather odd there, implying it might have been one server and two networks, but this sounds a lot more like a garden variety leak: someone left information in a ludicrous place, and someone else (acting unethically) gave it to a third party to publish. And I'm betting some poor SA takes the blame at some point.

As for the Opinion Journalist's question about why no one is paying attention to the 'bigger question' of the memos? It's not that big a deal. The fact that a Democratic staffer might have stated "most of Bush's nominees are nazis" is not great news, though it's tacky. (One does wonder if the staffer who wrote that will get similar castigation to Trent Lott.) The memos themselves are a pretty damning indication that Washington politics are crass, and delaying a nomination in order to specifically affect the outcome of a court case doesn't pass the stink test. But I don't think there's anything in the memos that surprises me. (For what it's worth, you can find the memos here.)

But then again, if the 'hacking' amounts to someone cutting and pasting files off a badly-secured server, I doubt this goes down in the annals of the great leaks of the Senate, either.

November 30, 2003

A Cynical View of Law Firm Hiring Practice

This is, admittedly, a non-scientific, non-academic approach, but I want to pull together the various stories, impressions, and tall tales of the law firm hiring process, and see if I can make a few tentative predictions. I've been inspired by lectures from career services, my upcoming exams, and a brief glance at my current debt level, so this might be a little less optimistic than normal.

1900-1950: Although legal education remained the norm, some firms would still hire and train under an apprenticeship system. Indeed, Supreme Court Justice Robert Jackson (for whom the current Chief Justice clerked) was trained in that fashion. A student's performance in law school, however, remains determinative of his career prospects.

1995: For some time, rebellious theorists have questioned whether a third year of law school is necessary. 1L grades are determinative of students career prospects. Some students spend their summer after 1L year pursuing non-law interests. Whatever the theorists think, 3L year is still mandatory as either a restraint of trade or ritual formality.

2003: At least one admitted untrained theorist [1] wonders if the second year of law school is unnecessary. First semester 1L grades are determinative of job prospects for post-1L summers. 1L grades and 1L summer placements sort out 2L summer placements, and law firms choose from among 2L summer placements. 3L year remains necessary.

Which leads to my predictions:

2010: Enterprising law firms realize that a pedagogical system which does the vast majority of its ranking function in the first 16.5% of a three year course is probably testing extraneous factors--who's learned how the test system works in the first semester, instead of correcting exam-strategies after a dry run, for instance. Firms therefore begin asking for LSAT results and application essays. LSAC IPOs to great fanfare; BarBri exam courses end. 3L year remains as a restraint of trade or ritual formality.

The further future is indeterminate, but I predict one of two possible courses:

2040: Genetic testing has advanced, allowing law firms to test newborn babies for legal aptitude. After SATs, LSATs, IQ tests, or 1L exams, firms finally have a competitive measure in which 'test prep' is not a factor in success. (BarBri, however, begins offering hopeful parents Guides to Successful Legal Conception: What Are the Firm Test 'Positions'?) 1L year now a relaxed post-college sabattical. 3L year remains as a ritual formality.


2040: Rising numbers of applicants, broader grade curves, and more compressed time schedules lead law firms to conclude that using 3rd grade aptitude tests have the same problems as SATs, LSATs, or 1L exams when Kaplan enters the test prep market in a marketing alliance with Barney. Realizing that they're doing most of the black-letter law education themselves, law firms complete their circle by hiring legal apprentices based upon a holistic interview process. Very faint peals of laughter are heard over the grave of Justice Robert Jackson...

[1] Yours truly.

November 29, 2003

Two More Bits of Procrastination

Spent fifteen minutes wandering Lexis in between chapters of contracts outline. The two gems I found?

Entertainment for Hours
A Compendium of Clever and Amusing Law Review Writings: An Idiosyncratic Bibliography of Miscellany with in Kind Annotations Intended as a Humorous Diversion for the Gentle Reader, Baker, 51 Drake L. Rev. 105.

The title says it all. Any six of the articles here should waste away hours of study time.

Enough to Make the Most Diehard Marxist Love Richard Posner
No, really. I'm serious. Whatever you think you thought of Posner, read Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343. OK, he's nakedly partisan for his hometown Chicago manual over that interloper from Harvard, but after your 1L memos, this should be music to your ears:

The time that law students and lawyers spend mastering and applying the manifold rules of the Bluebook is time taken away from other lawyerly activities, mainly from thinking about what they are writing. It is so hard to get the citation forms right that the writer or editor who has done so is apt to feel that he has acquitted himself of a difficult task and should be allowed to rest his brain. Less attention can be given writing and rewriting because so much is devoted to forms most of which don't matter worth a straw to the reader. Instead of learning the Uniform Commercial Code the student learns the Uniform Citation Code, which is almost as long, and far more arbitrary.

Amen, brother.

Update: Using the first article and links therefrom, Will Baude has proven that Judge Easterbrook is a videogame fan. You can probably score some points with the esteemed judge by introducing him or his law clerks to the Multiple Arcade Machine Emulator (MAME).

November 28, 2003

Distraction and Deviance

Ah, Lexis. Source of many hours of legal procrastination. On the menu tonight? Suing the Devil: A Guide for Practitioners, by Charles Lablon, 86 Va. L. Rev. 103. (I'm trying to find a copy you can get to without Lexis, but for those of you in law or law school, it's there.) A taste?

"THESE are precarious times for plaintiffs' lawyers. With most of the asbestos manufacturers safely bankrupt, the tobacco companies looking for a settlement, and even the most gullible investors unable to lose money on Wall Street, there is a serious risk of a defendant shortage. To be sure, people continue to be cheated, harassed, and abused by corporate America in reassuring numbers, but recovering the costs of standard corporate malfeasance is just a job, not an adventure. It provides none of the opportunities for financial windfalls, moral indignation, and national television exposure that come from suing a really despicable defendant. It is somewhat surprising, therefore, that one notorious perpetrator of injury, misery, and wrongful conduct has remained curiously immune from the current onslaught of civil litigation. I am speaking, of course, about the Devil incarnate, Satan, Prince of Darkness.

I know that the concept of a lawsuit, preferably a class action, against the Devil strikes many lawyers as bizarre, perhaps even absurd. I completely understand such concerns. Obviously Satan is a formidable legal opponent. He is well financed, highly intelligent, very aggressive, and completely unscrupulous. I believe he has had formal legal training. Yet the point of this Essay is to show that in a world in which Philip Morris, Microsoft, and Rupert Murdoch are all targets of litigation, the Devil isn't really so tough. Moreover, while Satanic litigation does pose some unique jurisdictional and procedural difficulties, none of them, as I will subsequently demonstrate, poses an insurmountable obstacle to a successful lawsuit."

"Since that time, there have been virtually no reported instances of Satanic litigation. This may strike some of you as odd, since the Devil is obviously still heavily involved in commercial activity, and we all know how indispensable the threat of a lawsuit is to maintaining amicable business relations. If he has stopped resorting to the courts, how does Satan keep his business associates in line? After much consideration and research, I believe I have discovered the answer. I can state it in three words: alternative dispute resolution. It appears that the standard-form demonic contract, like the standard securities brokerage contract, now contains an arbitration clause. This explains not only why the Devil no longer resorts to litigation, but also why so many people and institutions these days seem summarily to be going to Hell.

Incidentally, the article cites the following case, great if you're reviewing Civil Procedure: United States ex rel. Mayo v. Satan & His Staff, 54 F.R.D. 282 (W.D. Penn 1971), in which plaintiff "alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff's downfall." The case is dismissed because: (a) the plaintiff can't gain personal jurisdiction over the defendant in this judicial district [1]; (b) "plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process"; and (c) failure to reveal a cause of action over which relief can be provided by the court [2]. The court also questions if the case is maintainable as a class action, since while it met the requirements for Rule 23 [3], the court did not want to guess whether the claimant would fairly protect the interest of the class.

[1] I think the federal judge thinks well of his district here. Personal jurisdiction can be maintained under a theory of general jurisdiction if the defendant has 'substantial and continuous' contacts with the forum state. I guess His Honor thinks that limits general jurisdiction for the Prince of Darkness to California, New York, and other such dens of iniquity?

[2] Obviously, the defendant didn't file a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted, but I can't find the rule that allows a court to dismiss a claim without a motion from the defendant. Anyone help me out here?

[3] The class is too numerous that joinder of all parties is impractical (and I would have thought this countered the personal jurisdiction problem); there are questions of law and fact common to the class; and claims of the representative party are common to claims of the class.

November 22, 2003

I can't miss this...

Tomorrow on This Week, Andrew Sullivan is going to be debating gay marriage. I'd buy tickets to a Sullivan/Will matchup, but I have no TV and I'm going to miss this one. If any of my Columbia readers have a tape, it's on WABC at 9 AM...

The Red Cross, AIDS, and LSAT Practice

I've been having a bit of an argument about statistics with guest blogger Beth Plocharczyk over at Crescat Sententia. The argument reminds me of one of those fancy reasoning questions on the LSAT, so I'll go into it here.

She's arguing that because it's easy to test for HIV-infected blood six-months post-infection, only the number of new HIV infections matters. She then states:

"According to the CDC, a full 33% of new HIV infections are in men and women engaging in heterosexual intercourse. (42% are from men sleeping with men, 10% from IV drug users). 54% of new HIV infections in the U.S. are in African-Americans. I don't see them stricken from the bone marrow donation eligibility list."

As you can see, her argument is that it is irrational for the Red Cross to pre-screen applicants by asking if they have had male homosexual contact, and to allow heterosexuals to donate blood or bone marrow while rejecting male homosexuals. (Or indeed, while allowing African Americans to donate.)

This may be so on other grounds--it's a policy debate I don't want to touch, frankly--but you cannot reach that conclusion based upon the statistics above. Indeed, doing so would be fundamentally 'irrational.'

I'll explain why tomorrow in the unlikely event that no one gets it, but in the meantime any of you studying for the LSAT are welcome to take a crack at it in the comments section.

November 19, 2003

The Imp of the Perverse Gets Married

God, I hate how this memo deadline means I don't have a chance to blog properly, and end up doing 'me too' posts.

Look here for Professor Volokh on the downside risk to the gay marriage movement of using the courts to determine what 'marriage' has to mean.

I've had a number of bets running with people over when gay marriage will become legal in the US in all 50 states. (For reasons I'll go into after the memo's done, I'm pretty certain it's inevitable.) I'd say within three years, have put money on six years, and the best bet I have outstanding is 12 years. But my reckoning counted on one thing: the Federal Marriage Amendment going to the states before the Supreme Court instituted gay marriage.

I think that, absent a judicial ruling to oppose it, the FMA would fail: the constitutional hurdles are too high, and passing an amendment is too much work. But if those pushing for the FMA can do so under a feeling of crisis--pass this amendment now, or the choice is taken away from you forever by nine guys in black robes--it's got a pretty decent shot. Once passed, it forecloses the judicial option.

On the other hand, if the court cases came after the FMA failed, and the Supremes waited a year before institutionalizing what, by that point, was inevitable... well, that was why I personally believed 2006 was a good target date.

I could be wrong, but I don't think so. At the very least, I'd no longer bet on 2006 for institutionalization of gay marriage nationwide, but 2009... I'd guess it at even money right now.

OK, I'll put that more coherently once this memo is finished.

November 18, 2003

And so it begins...

CNN Reports that Massachusetts just struck down a same sex marriage ban.

I'll be reading the case as soon as I find a copy. (Which means when I'm out of civil procedure.) Frequent readers know my position on the issue (turn all marriages into civil unions and remove marriage as a legal status), so at this point, it's just a matter of watching the battle rage.

Update: The slip opinion of the decision, which I found on the Massachusetts Supreme Court website.

November 17, 2003

Justices in Shoulder Pads

And it's Ginsberg, Ginsberg, she's running past the 30... the 20... slam!... no, she's down and the 15, O'Connor with the tackle...

Hmm. OK, it's not fantasy football, but Ambivalent Imbroglio points out this Supreme Court Fantasy League contest. Not sure if I'll try it, but the concept is entertaining.

(Ambivalent is quickly becoming my favorite blawgrolled liberal, especially now that MBA Experience has closed down.)

November 14, 2003

New T-Shirt Idea

Latest idea for a t-shirt. For 1L women, obviously.

Front: I'm a Rules Girl!*


November 11, 2003

What passes for 'nonpartisan'?

The Columbia Political Union today sent out an email linking to Filibuster, its weblog.

Simple pro-school patriotism demands that I linke to its website (if I can find/create an RSS feed), but what I find amusing is the disclaimer:

The Filibuster is the Columbia Political Review's weblog. The Political Review is the magazine of the Columbia Political Union, a non-partisan student organization seeking to enhance involvement in the political process and to foster political discourse. The CPU does not endorse the ideas contained herein; their worth is for our readers to determine. The Filibuster welcomes arguments, rebuttals, and denunciations...

Which is, I suppose, true as far as it goes. But given that a cursory study reveals a 'personal essay' with the tagline "Al Prescott-Couch exposes ignorance in a right-wing Christian Group," there's not an article in the current issue that gets close to being pro-Bush, and the weblog reads like the yin to The Corner's yang, it's a pretty tepid belief in 'non-partisanship,' and it would be a braver conservative than I that would try to storm its bastions.

But heck, it's a group blog at Columbia Law School, I think I'm honor-bound to love it, even though it shares Crestcat's disdain of comments.

Update: I've received an email calling me a 'hypocrit' for talking about a left-leaning weblog when I'm so right wing. Let me make it clear: I have no problem with a left-leaning weblog. Indeed, I love Ambivalent Imbroglio, and no one would consider him remotely right-wing. But I don't call myself non-partisan, and that's what I find pretty difficult to maintain.

Let me make this clear: this weblog is partisan. I'm partisan. I have some definite political beliefs, and I write about them. If you're of the left, you can think of me as the all-singing, all-dancing right-wing corporate whore. I club baby seals for breakfast, think Emily's List should have groceries on it, oppress ladies by holding open doors for them. I'm the man your momma warned you about, if your momma was Hilary Rodham Clinton. This site is partisan, and you have been warned

Then again, I allow comments, and you're always welcome to disagree.

October 08, 2003

The Abolition of Marriage

An incredibly cool paper on the advantages and disadvantages of eliminating marriage as a legal category: For and Against Marriage: A Revision. I'm only a short way into it so far, but I recommend it.

(Link from the The Legal Theory Blog)

October 07, 2003

My Name Is Not Daniel, My Faith Is Not That Strong

Until today, I didn't have anything really to add to the 'conservatives in academia' discussion on Volokh (here, here, or here) or The Curmudgeonly Clerk. But since I'm pretty much caught up with my reading (still the laughter in the gallery, please) I thought I'd go along to the 2003 Supreme Court Round Up held this evening.

In one sense, I got what I wanted: a short summary of the interesting Supreme Court cases of the 2003 term, and a very brief look at things to come. But the vast bulk of the evening was taken up with Gratz, Grutter, and Lawrence v. Texas. I took two sections of notes: what was said in a factual and informative manner, and notes for the general tenor of the meeting. I won't quote from the latter other than to say that there was nothing nice said about Scalia save for a backhanded compliment, Rehnquist was described as disingenuous twice, and all three of the above rulings were considered self-evidently correctly decided, save perhaps that they didn't go far enough. (Needless to say, nothing nasty was said about Kennedy or Ginsburg, though one can suspend disbelief about the latter and say that's because of her Columbia connection. You don't speak badly of Cardozo here, either.)

The academics present were smart, witty, and highly knowledgable: indeed, I'd gone specifically wanting to see one of them, since I'd be pleased if I ended up in one of her classes one day. But (and perhaps this is the signs of some naivety on my part) I'd imagined that in a formal panel put forward by Columbia Law School there might be a whisper of dissent between the four panelists. If there was, I missed it. Nor were any of the floor questions particularly challenging, though some did result in some explanation or elaboration of views already stated. If one might think that the dissent in Grutter or Lawrence has any steam at all, you'd not have known it from the discussion this evening.

This isn't what I was used to during my undergraduate days: panels were expected to have some disagreement (or, if that was absolutely impossible, to at the very least address the points of the opposition). David Bernstein from the Volokh Conspiracy was here last week, speaking about his new book, but I didn't see him because I read him quite a lot. As a guest of the Federalists, it looked like he'd be preaching to the choir: not, in my view, the best use of my time. But he'd have made a great addition to this panel.

What sprung to my mind by the end was, "Who are these people talking to?" Maybe there were a lot of closet conservatives in that room who remained silent, but I didn't see any of the usual 1L suspects I know. Is it really good policy to describe the term 'public interest law' as if it must by definition exclude conservatives? To hold quite emotive panels, without giving a voice to contrary views? Indeed, given the tenor of the questions, wouldn't it have made sense to ask for contrary or challenging questions--from the floor if nowhere else? I would have thought that at a university, such uniform agreement would be just as disturbing. Besides, if everyone in the room already agrees with you, why bother talking?

Which brings one to the obvious question: young man, why did you stay silent? To which I can only say, read the title above. One of the depressing things about Grutter is that ostensibly it's put in place to ensure that there is diversity not of race but of experience and viewpoint in academia, to which diversity of race is supposed to contribute. If that's the case, the panel was hardly a good sign.

Update: Thinking on it, there was a question I wanted to ask, and forgot. The panel skipped over a free-speech case, Nike v. Kasky, in which I have a very strong interest. (Samuelson on Kasky can be found for a good layman's summary.)

September 26, 2003

More Political Incivility

The The Curmudgeonly Clerk, Eugene Volokh, and just about everyone else has been commenting on the Young Conservatives of Texas at Southern Methodist University holding a bake sale as 'an act of free speech.' Basically, they charged different prices for the same goods depending on the buyer's race or gender (though they also admitted that, if pressed, they'd just have given away the sweets for free, since they were trying to make a point, not sell cookies).

The Curmudgeon does a good job skewering the SMU officials for shutting down the bake sale, and highlighting some of the hypocrisy that goes on in campus debate. But for the record, someone ought to point out that whatever the First Amendment, the actions of these students were rude, vulgar, and a cheap, sophmoric stunt. Like most 'non-verbal speech,' the differential pricing could have multiple interpretations and was almost certain to offend. It shouldn't have been shut down--but someone should have told their parents, because their parents should have taught them better.

September 22, 2003

Highly Humiliating

This is just ridiculous. I'm applying for a moot court program, for which I must submit only two things: a resume, and a sample of good, tightly-written argument.

Sadly, I can't find a single example that I've done in my professional life. I have statements of due diligence, website proposals, recommendations on enhancing the productivity of offices... but no good arguments.

That's what you get for being more interested in writing like P. J. O'Rourke, isn't it? Damn.

September 19, 2003

J. E. Dionne

Do you think that people like E. J. Dionne, folks for whom a Democrat never put a foot wrong, could stop talking about how the 9th Circuit's decision mirrors Bush v. Gore?

It doesn't. There's a difference between casting a ballot, and tabulating it, and the 9th Court's decision isn't 'hoisting conservative judges by their own petards.' It's just another example of the kind of 'interpretation' that judicial activists are famous for: turning a rule (and one that's declared 'non-precedential') into a standard, without any particular recognition of the difference.

September 12, 2003

Bring Back Bork

Yesterday, Justice Ginsburg was kind enough to do a question and answer session at Columbia Law School, an experience far more enjoyable than I expected. A particularly funny speaker, I'm now a bit upset that I'm going to miss the two panels marking her tenth anniversary on the Supreme Court.

One of the more interesting questions put to her was what she thinks about the current situation with federal court nominations in the Senate. The best line in a response seeming quite disapproving was that eventually a whistle would be blown and things would be restored to sanity. Like most on her side of the aisle, she pointed to Clinton's consultation of Senator Hatch during her own nomination. I find this a bit unsatisfying, in that most of Clinton's 'consultations' were consultations with a majority party, not merely consulting a petulant opposition.

In any event, I was thinking of the strike and counterstrike that led to this particular impasse, cogitating on Justice Ginsburgs words and Professor Solum's analysis of events, and thinking of what that 'blowing of the whistle' that would lead the process back to sanity would be. Overturn Roe v. Wade but pass legislation making abortion legal, thus taking the most polarizing decision off the tables? Try to shame the most partisan of the senators into comity? Raise Pat Moynihan from the grave so he can rebuke his current New York successors for lacking in good grace? But all of these responses weren't 'first move' options that Bush could make without significant external help. (I'm pretty certain Bush doesn't have the right contacts in the witch doctoring world to do the latter anyway.)

Then it hit me. When the next Supreme Court nomination comes open, bring back Bork.

When you trace the spiraling descent of cross-party relations on judicial nominees, Bork is inevitably mentioned as the first shot invoked in the battle. From Bork to Thomas, Thomas to Clinton's appointees, from there to the present process... Bork is inevitably the cassus belli.

The idea's got a couple of attractions. First of all, it all rests in President Bush's hands: it's a unilateral act, and this is a president who's shown a liking for those. He can couch it to the Senate in terms of a grand deal: if the Democrats agree to revise their stance on Bork, the Republicans will agree to a truce on future nominees from a Democratic president. Things will have come full circle.

Sure, there's going to be initial resistance, but Bush would also have made it difficult for the Republicans in the Senate to chicken out on him. How many senators have raised Bork as their standard when fighting for Gonzales or Thomas? How much honor is there for them to lose? Whereas some of the Democrats, realising how far this situation has gone and how much there is to lose, would be likely to capitulate, even if Charles Schumer becomes the irredentist faction.

I don't think it's a sure shot. Certainly when it comes to matters requiring strategic competence, there's no such thing as a sure thing for any Republican organization. But even if Bork were to lose again, it's likely to bring an end to the Confirmation Wars, if only from sheer attrition. Imagine how spectacularly ugly Bork II might be, how much face could be lost on both sides! One way to end a war is simply to make it unprofitable to go on any further.

And in the best of all possible worlds, the Senate comes to its senses and confirms him like a Ginsburg or a Breyer. Just think how good it would be for 'to be Borked' to lose its perjorative sense.

That's it, Bush, blow that whistle of sanity. The whistle called Bork.

September 04, 2003

MEChA: It's not just for anime geeks anymore

The Curmudgeonly Clerk has one of the best summaries of the ongoing Cruz Bustamante/MECha controversy. I'm going to have to take issue, though, with the fact that he's taking it seriously.

In a nutshell, the story centers on the Man Who Would Take on The Terminator having at one point belonged to an organization that, in crusty founding documents from the late, unlamented revolutionary '60's, talked about the 'liberation of the people of Aztlan' (basically, Aztec separatism), and had the amazingly racist 'slogan' Por La Raza rodo. Fuera de La Raza nada.' (Though there's some disagreement here, roughly translated "For the Race: everything. Outside the Race: nothing.")

Queue cries by the right that Bustamante belonged to a racist organization, that he should disavow MEChA's non-inclusive beliefs, and in general that this is all a big error of judgement. And queue various interpretations from the left on how the language doesn't mean what it means, it's not important, and it's not racist at all anyway.


In the interests of consistency, I'm going to have to back Bustamante on this one. Back when the entire Trent Lott debacle was going on, I made a point that his statements, taken in context, were no big deal: what a man says at a birthday party for an old friend who once ran for president is hardly dispositive of his political views. Arguing that it was racist 'in code' implied this kind of racist Machievillianism among Republicans that gives us far too much credit. Most of us can't string a sentence together coherently, much less 'encode' it with hidden racial hate speech so we can grinningly backslap each other in clear view of reporters.

Basically, if you thought Lott was a racist before the birthday, then damn, it was a racist statement. But if you didn't bring the baggage into the comment, it didn't have anything to do with race, but had a lot to do with party.

Similarly, the entire MEChA 'scandal' excites the hypersensitive right who expects the left to live up to the (thoroughly unrealistic) standards that the left demands of its victims. Finally, we've got a 'gotcha.' I mean, it's all in a document, it's all on websites, it's all thoroughly provable.

Except... c'mon. These are the founding documents of an organization that, if it's doing anything racist, is doing so in such a low-grade manner that it hadn't hit the radar screen prior to becoming a good excuse for Limbaughesque bile. Even casual inspection of the sites seems to indicate it mostly does 'good deeds' (at least as considered in left-wing campuses), 'consciousness raising,' and the other silly ephemera of campus politics. [1] If this is the KKK in latino wrapping, it's certainly a laid back and relaxed hate group. Can you commit a 'casual dislike crime' these days?

I'm certainly not an expert, but this tempest in a teacup looks to me like what was once a possibly radical '60's group has become... well, a nifty social club. I doubt if a tenth of its members could tell you what its founding documents are, much less quote them. Sure, maybe that whole 'Raza' thing should have been repealed (or maybe not), but is it really worth the effort?

Last night I went to the De Vinimus wine tasting here at Columbia, and I'd love to join the society. Now, with any luck, no one is going to point out at my eventual Supreme Court nomination that De Vinimus has historically discriminated against Antarctic vinters or advocated for growing Norwegian wines via slave labor. [2] I doubt they do these things, but I couldn't categorically swear that I've read their founding charters to make sure. (After eight glasses of wine at a good tasting, I'm not sure I'd be able to tell you if they did.) Given that, without further evidence that Bustamante is fronting for the succession of California, New Mexico, and Arizona, or trying to mandate Austrian-American indentured servitude, I'll give him the benefit of the doubt as an honorable politician.

What was done to Trent Lott was demeaning to sensible politics (although his responses were pretty talentless, as well), but it's no better when otherwise sensible conservatives decide we're going to indulge in foolish muckraking. We might not like Bustamante, but if this is the best evidence that he's biased racially, I'd shake his hand.

[1] Casual inspection of the Yale MEChA site also reveals it's bloated with gigantic images, slow to load, and in need of a redesign... but that's my old web hand talking.

[2] And if that's the worst my political opponents can site after three years of blogging, I've not had enough fun at law school.

Estrada Withdraws, Schumer Waxes, Cynicism Wins

It appears that Estrada has given up the fight for nomination. After the Lewinsky battles, I didn't think comity in the Senate could sink any lower. How I can underestimate Senator Schumer.

Professor Solum has given an analysis of what Estrada means for future confirmation battles. I'm afraid that to me he seems to come to a conclusion as grim as it is certain: that the federal courts are now fated to be the third political branch of government, and at that the most dangerous.

August 28, 2003

Judge Moore: Defender of Stare Decisis

The Yin Blog. The Legal Theory Blog. The Volokh Conspiracy. Today, Marci Hamilton. All of them, over the last few weeks have decided to blast Judge Moore for failing to remove his absurd monument to the 10 Commandments. With such a parade of heavy hitters against him, it makes it irresistable to try to defend the man, especially since he's doing such a poor job of defending himself.

While I actually think that an antipathy towards Christianity is behind at least some, if not all, of the general outcry against Judge Moore (though certainly not in the sources above), his key problem is the order of U.S. District Judge Myron Thompson to remove a 5,300 pound eyesore that seems to offend some very sensitive anti-religious sensibilities. Unless he can get past that, he's a goner.

Now Moore's key problem is he's a bombast, and more interested in being right than winning. So far he's made a number of fairly inconsistent and illogical arguments, mostly centering over state's rights issues. But imagine he were a Cardozo, a Learned Hand, or one of these other fellows accustommed to generating 'revolutions' in the law. In other words imagine he wanted to be clever and win, rather than garnering publicity. He might say this:

"Fellow Alabamians, fellow Americans: there has been a lot of talk lately about my failing to obey the order of a federal court to remove a monument to the Ten Commandments. It is with great regret that I have to announce that I cannot announce the order, as a matter of well settled law.

One of the backbones of our legal system is stare decisis, that a lower court must follow the precedent and example set by higher courts. In matters of the constitution, there is no court higher than the U.S. Supreme Court, and they have overturned the order of Judge Thompson.

The Ten Commandments are displayed prominently in the Supreme Court building itself, and of the great lawgivers immortalized in statue therein, the one of the oldest is Moses. I can't tell from the picture, but he seems to be holding the transcription for which he's best known.

Now, it's true that the Supreme Court denied certiorari in this case, however I choose to believe this is because they have established, by their very building, a precedent in fact. Their actions have spoken eloquently enough that no ruling was necessary. It would be violating my duty as a judge in upholding stare decisis for me to remove the monument, for by doing so I would be questioning the constitutionality of the United States Supreme Court, and I am not willing to take that step."

Why should he do it? Well:

  1. It certainly increases his chances of the Supreme Court paying attention, if only in order to take their words out of his mouth.
  2. It would show how silly this entire thing is. No one's trying to remove the Commandments from the Supremes.
  3. From my point of view, it's about time that Christian conservatives start working the 'legal realism' beat. If Justice Kennedy can find sodomy in the Fourteenth Ammendment, certainly Judge Moore can interpret the actions of the Supreme Court to speak as loudly as their words. And if we're ever going to get rid of legal realism, it needs to be less of a one-party process. Right now, it's a trend from which a (mostly secular) left has nothing to fear, because it will rarely be used against them. Here's a chance to stop that.
  4. It's narrow. Yes, in most cases I'd disapprove of a strategy like this, simply because it's making up the law as you're going along, 'pretending' that there's a tradition of stare decisis in action that doesn't exist. Then again, in how many cases can the structure of the Supreme Court building itself be used as an argument?
  5. It's clever, at least superficially, and would satisfy those who demand a little nodding wink with their judicial creationism and can't stomach claims of 'states rights.'

Just a thought before breakfast.

August 26, 2003

I'm never going to get any work done if I keep reading the prolific Volokh

I love the Volokh conspiracy, because even when I disagree with it, it's a funny read. Unfortunately, the article to which I linked shows a pretty common danger on blogs--arguing your opponent's point of view and then describing why the argument is so weak, having made a hash of their argument.

Volokh compares religious intolerance to intolerance of homosexuality, but in doing so I'm not sure he takes his opponent's arguments seriously. I was particularly thinking of his point regarding conduct and belief:

2. Conduct v. belief. Another reaction is that homosexuality is conduct, and therefore the proper subject of man's law, while belief is not properly governed by man's law. But Hinduism involves more than just disbelief in the Christian God, and belief in other gods; it also involves the conduct of creating graven images, and breaking the Sabbath. What's more, as I understand it, from a Protestant perspective, belief in God is at least as theologically important as conduct, and perhaps more so. The Ten Commandments, as we see, command belief as well as conduct. If the justification for outlawing homosexuality, or firing homosexual teachers, is simply that it violates God's law, then how does importing the conduct/belief distinction fit with such a justification?

But of course, this is a pretty limited statement of the difference between conduct and belief. First of all, most conservative Christians who make this distinction aren't outlawing homosexuality, but acts which practicing homosexuals would indulge in, and most, if not all, of those proponents of this belief would make such actions illegal between consenting adults of different sexes as well. Most of them would make the quite logical distinction between a practicing homosexual and someone who has such temptations but does not act upon them. ("Sinning in one's heart," however much one disliked Jimmy Carter, wasn't going to be made illegal by the religious right.)

His article doesn't explicitly state, but seems to rest upon the presumption that the branch of conservative Christians of whom he speaks (of which I am not one, by the way, having no big issue with homosexuality one way or the other, and not being particularly Christian) despise the idea of homosexuality but are perfectly willing to tolerate same-sex sodomy wheresoever they may find it. They're not--they have definite views on the importance and morality of certain sexual actions.

The distinction blurs simply because there are not that many heterosexuals who, in the normal course of their daily lives, announce loudly and in public that they engage in heterosexual sodomy, and for the most part, there's no way to prosecute a heterosexual who enjoys such acts but keeps the relationship private. On the other hand, two men who proudly declare themselves homosexual are not necessarily, but certainly suggestively, indicating that they engage in such acts. [1] But is anyone suggesting that the Jerry Falwells of this world wouldn't support prosecuting a man and a woman who explicitly stated they'd committed similar sexual actions? I can't imagine any of my old Christian Coalition friends from Washington objecting to a homosexual being allowed to be a teacher, but then simultaneously welcoming a female heterosexual teacher who admitted that she enjoyed any of the acts covered by Georgia's old sodomy statute.

In the end, sex isn't religion, and religion isn't sex, and I don't find it contentious that one can believe an act should be illegal because, from one's religious perspective, it's considered to be immoral.[2] I agree with him that many people are uncomfortable with the idea of discriminating against homosexuals partially because it goes against our ideas of religious toleration. But I'm also very wary about the simplistic charicatures of the religious right that tend to pop up in the blogosphere.

[1] I would think that most of Volokh's intended groups would have little problem with two men who lived together and never engaged in any sexual activity, at least legally, but the case is rare enough as to be difficult to tell.

[2] Volokh also slights the argument about toleration when he states that:

But I would hope that many people's attachment to religious freedom is deeper than just "Well, the Constitution requires it, so we have to reluctantly adhere to it." Religious freedom is often described as a broader ethical principle -- a principle that people should be tolerant of those of other religious groups, and should treat them equally (at least in allotting government jobs) even though they disagree with that religion.

Except, of course, that for many evangelicals this is explicitly not the case, whatever his 'hopes' for their attachments. Indeed, if you're an evangelical you pretty much by definition consider conversion a religious duty, and may not have a problem with that being enforced by law, per se. The principle behind the Establishment Clause can equally be seen as broadly pragmatic, instead of ethical--by not allowing the Federal government to establish a religion, every religious person is assured that their belief won't be outlawed, and that they may continue to evangelize. Volokh argument basically boils down to, "If you don't happen to be a strict evangelical, then the strict evangelical argument won't make sense to you." Which is true as far as it goes.

Update: There's been a lot of commentary on the original posting, including this at the Legal Theory Blog. Professor Solum quibbles (a bit more politely) with Volokh's view in similar ways to the above. I'll link to other comments as I find them.

August 24, 2003

I'm happy I don't go to Berkeley

Professor Volokh reports on yet another story of craziness at Berkeley. One student accuses a teacher of anti-Semitism, the other argues over-sensitivity, and no one at Berkeley is embarassed at being open-minded to the point of idiocy. To quote from the article:

Perhaps the "Protocols" was written by Jews and perhaps it was written by Russian secret police, said Kadhim, adding that he hasn't done the research to know for sure.

"This is not my expertise, this is not my Ph.D. I am not a scholar of everything. I know some people say it is a forgery and some people say it is not, but it not my job or duty to know the details," said Kadhim, 37, a graduate student in Arabic and Islamic studies [emphasis mine] and a former Iraqi resistance fighter in the curtailed 1991 uprising against Saddam Hussein.

"I never in my life thought I would be asked about the 'Protocols.' It's unfair to ask me to have a precise opinion on it. I always thought it was enough to know both sides and be open to change. It is not responsible to endorse one view or the other without the full information."

Isn't anybody at the university ashamed that someone who purports to be a graduate student in Arabic and Islamic studies is admitting to being so ignorant of the origins of a text that, elsewhere in the article, he admits to having been taught in school in Iraq? He never thought he would be asked in class about the Protocols of the Elders of Zion? When he's talking about Arab culture and one of the big hot-button issues in the last year has been the Egyptian decision to screen A Knight Without a Horse? What alternate world does this fellow live in?

But the more one looks into the incident, it's just disturbing on both sides. Kadhim's view of 'rational ignorance' is bad enough--teaching Arabic culture and not having a view on the Protocols would be like me teaching Japanese and not having heard of the Rape of Nanking. In a letter to Volokh he proclaims that "As you know, this issue of authenticity and the identity of the author -- or authors -- of the Protocols has not been settled between the Middle Eastern disputants (that is to say, no one said to the other, 'you are right.')." Maybe my own knowledge is incomplete, but I was pretty certain that outside of the Middle East (and it's not a Middle Eastern document, it just appeals to popular prejudices there) the matter was pretty well settled.

But Volokh presents both sides and the other side is pretty ugly too. His accuser, Susanna Klein, is hardly a model of intellectual tact and comity. You really can't take seriously someone who thinks it appropriate to spit in people's faces at a political rally.

All in all, it's just a depressing incident. One wishes that Berkeley's dean would write his teacher telling him to do some reading, and his student telling her to grow up. Berkeley campus life is never going to be lived according to Debrett's, and I understand that, but this is something that serious scholars, serious students, and those who truly care about political thinking should view with disgust.

August 22, 2003

Did you look behind the cushions?

I should know better than to blog while in a bad mood, so I'm not even going to touch on such matters as the Diversity Reception here at Columbia Law School. (No, I don't like diversity, as the term is generally used in such things, but you have probably had your fill of my Grutter posts.). Besides, while I may not like such things as a matter of policy, it's unrelated to anything at which I'm actually annoyed. But as long as I'm venting:

Today in Legal Methods, I found myself defending a very strict interpretation of the Federal Railroad Safety Appliances Act of 1893 (Section 2), which reads:

That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

Now, the Supreme Court, in Johnson v. Southern Pacific, announces what is undeniably true--that the legislators who wrote the bill undoubtedly meant for the text to have a comma after 'uncoupled', which would apply the 'without the necessity of men going between the ends of the cars' language to coupling as well as uncoupling. But as I see it, the intent of a legislature isn't read from what the individual legislators said they meant, but by what the legislature actually passed.

So I ended up making the point that by inserting the comma, the Supreme Court actually changed what the law meant, and I didn't think it was proper for them to do that. [1] True, it's very technical, and most members of Congress undoubtedly meant for it to be read as if the comma were there--but it wasn't.

Back at home, I had to start pondering why I felt such revulsion at a comma. Finally, I settled on the fact of that comma being a simple single step towards one of my real annoyances in constitutional law: the 'penumbras and emanations' that are found by 'realists,' particularly in the Due Process clause.

One day I'm going to write a stage play about the Supreme Court Justices, and it's going to have a section that includes this:

JUSTICE KENNEDY: Hmm... so, is there a right to homosexual intercourse? Let us look in the penumbras of the Constitution. Hmm... not there. In the emanations? In its pencil case? No. Let's see, where else? Have I checked behind the Constitution's couch cushions?... a lot of rights have seemed to fall between the cracks there...

I've been told that textualism is a pretty lonely road, especially in law school. Maybe I should just hope it's some kind of mental infection that will go away...

[1] I didn't get the chance to say that for the sake of that case, I don't think it mattered--while it didn't explicitly say, I somehow doubt that the cars that didn't couple automatically would come apart without need for a man to go between the cars.

August 20, 2003

He's Been Terminated

Man, I need to get to work, but I had to blog this.

Michael Dorf writes a hysterical column today on "Why Federal Law May Keep the Terminator off the Air Until After California's Recall Election." The basic jist is that due to an issue of FCC regulation, any broadcast TV channel showing an Arnie movie would have to give 'equivalent airtime' to each of his (one hundred thirty some and counting) political opponents. That would take about ten days.

I only take issue with one point:

One perhaps might argue otherwise. Granted, an airing of Kindergarten Cop, in which Schwarzenegger plays an affable undercover police officer, or Terminator 2, in which he portrays a benevolent cyborg sent from the future to save humanity, could boost his standings in the polls. But in the original Terminator, Arnold is an evil robot sent from the future to destroy humanity. Perhaps his electoral opponents would actually benefit from repeated showings of the film.

Actually, I'd put it the other way around: the original Terminator was a good film, the others were pretty lousy, especially the awful Kindergarten Cop. But by my argument, Arnie's latest role in T3 might beat the Labour Party's famous manifesto as 'the longest political suicide note in history.'

So now all we need is for someone in California to nominate the following for Governor:

  1. Jim Carey
  2. Barbara Streisand (should be easy to convince)
  3. The Red Hot Chili Peppers
  4. Yahoo Serious and Carrot Top (joint ticket)

Anyone else got some nominations? Congratulations to the FCC for having figured out how to constitutionally reintroduce a Hollywood blacklist! With any luck, by September all that will be showing on TV are news programs and Merchant Ivory flicks.

Back to Law and Politics

There's been a lot of commentary on Judge Moore's refusal to remove an absurdly heavy monument to the ten commandments from his courtroom (one convenient source is at the Yin Blog, but I think my entire blogroll has said something about it). I feel obliged to comment about it, since I'm a former resident of the great state of Alabama.

And all I'll say is that it's nuts like this who make Alabama the crazy and wonderful place that it is to live. I mean, we can get all bent out of shape about whether he's following the law, violating the Constitution, and all the other matters of great import. Or we can say, more reasonably, "This is Alabama. What do you expect?"

I mean, this is the state that's left a (patently unconstitutional) law on the books banning sex toys. It's a state in which the matter in controversy is a monument to the ten commandments weighing more than all the cars I've ever owned put together. I reserve a little soft spot in my heart for the place, if only because it gave me a good education whilst surrounding me with the quixotic, if not Chestertonian, company of people convinced they were doing right in the strangest of ways.

August 05, 2003

The Curmudgeon on File Sharing

The Curmudgeonly Clerk is worried that the internet populace is working on nullifying copyrights through file-sharing software, and that this kind of 'lawlessness' will be bad for the rights of property in general. I see his point, but I think he's missing a key distinction.

Copyrights are not like normal property rights. If I own a tractor, then that tractor sits there as a physical object. This isn't true if I own the rights to a piece of recorded music. I own the right not because of any physical restriction (there can only be one tractor made out of the same material) but because of a legal incentive put in place to promote the production and distribution of music. The 'property' is in this case created wholly by fiat of the law.

The current structure for music made sense in the day when the distribution of music was a serious cost. The amount of music had to be limited to what would be of 'quality' because there was only so many discs that could be pressed, only so much space in the record store. This is no longer true. While the production cost of music may not have gone down, the distribution cost may now be very close to zero, at least in many cases, thanks to digital technology and the internet.

Allowing the old system of copyrights may therefore produce economic inefficiency. First of all, the record labels may be extracting improper rents from the 'property' that they own. But more importantly, one of the technologies that should be allowing a broader range of music out into the market is being stymied. With this new form of distribution, there is less need for restricting the pipeline of new musicians, and so we should be getting a more diverse range of music, and fewer Brittneys.

Do most people know this? Well, I'd argue that instinctively they understand some of it. But even if they don't, they can see what I would consider higher than necessary rents being made on 'property' that exists only by legal fiat, and many of them are voting with their feet--or more accurately, with Kazaa. Indeed, the RIAA's new policy of suing some of the music industry's best customers will, I predict, go down like a lead balloon.

While I'm as capitalist as anyone, I'm becoming more and more convinced that the anti-copyright forces aren't going to have an appreciable effect on rights of property per se, and are merely watching the dying gasp of a distribution network that is no longer necessary and kept alive by the hand of government.

Oh, and in response to one scenario of the Clerks:

Of course, a similar argument might be made regarding books. After all, if I were to check out a book from the library, reproduce it in .pdf, and make it freely available over the Internet, I also would not have precluded anyone from the use of the work. One might make the same case for various software that is routinely traded over the Internet as well. (As an aside, it seems to me that the relentless focus on the RIAA in the file-sharing debate skews its content and the views of the merits. Software, for example, is also much traded, and focus on it might render the debate more sober and clear-headed.) So Professor Solum's distinction strikes me as being potentially very far-reaching.

The big difference between books and music is that there is a particular advantage to consumers by supporting the use of a non-digital medium. To the extent that turning a book into a .pdf might reduce the number of actual books printed, it makes sense to maintain this incentive. (Books are easier on the eye to read, more portable than a PDF, etc.)

With the exception of cover artwork (not spectacularly important to most music listeners) and vinyl fanatics (and vinyl music isn't really that subject to piracy, requiring a pretty hefty fab-plant as startup capital), the same can't be said of music. Distribution of music via mp3 is functionally the same as distributing the same track via CD--it's just economically more efficient.

I think his focus on software is also a bit misleading, in that there's an awful lot of 'benign neglect' of software piracy in the world. There's a reason that MS doesn't prosecute every household that pirates XP from an office machine, or Adobe punishes every student who uses a cracked copy of Photoshop, even though they have perfectly reasonable ways of tracking much of this. The widespread use of this software increases their returns from network externalities: that kid using cracked Photoshop isn't going to suggest to his eventual employer that, hey, switching to Paint Shop Pro is just as effective for 80% of tasks and is a hell of a lot cheaper.

In the end, public 'copynorms' seem to me well-suited to a rational perception of what the social benefits of enforcing copyright actually are. If you respect them with regards to books, you get libraries, bookstores with coffeeshops, and convenient ways of reading things without having to load up Windows. If you respect them with regards to software, you get more software--this is enough to encourage at least marginal compliance with the law. But if you respect the law with regards to music and the RIAA, you get a bundle of fat, happy music executives overseeing a distribution chain more restrictive than necessary; smaller artists with more difficulty distributing their wares and getting noticed; and enough concentration of control to guarantee that Britney Spears has enough money for her next few boob jobs. Funnily, that's a tough case to sell to an educated adult, much less a teenager.

Update: If you track the links back from Prof. Solum and the Curmudgeonly Clerk, you'll get to a very good commentary from Balasubramania's Mania, but this should give you a shortcut if you'd like it.

July 28, 2003

Particularly pertinent

And after the mess of Grutter v. Bollinger comes the first article I've seen on the topic of how one spots a minority.

Best line of the article? Definitely:

All of which raises the delightful prospect of an earnest college-admissions officer in the next racial-preferences court case explaining to the jury how he determined that Tiger Woods is not entitled to a plus because Tiger's black ancestry is cancelled out by his Asian genes.

This isn't an academic matter for me: my mother delights in telling how our family is (and can be proven to be) descended from members of two Native American tribes, and my father's from another member of one of them. I didn't claim that ethnicity when I applied to Michigan--I don't identify with that part of my 'heritage'--but what if I had? Anyone here think it would have been a farce if, instead of being wait-listed to U of M, I'd been admitted on basis of 'race?'

My first girlfriend back in high school was a white immigrant from South Africa, and she used to facetiously mark 'African American' on applications: she had, after all, been born in Africa. She used to refer to me as 'plain American' because my ancestors came from so many places it didn't make sense to count anymore. But here it's serious: what if she applies to the University of Michigan Law School next year?

One of these days, conservatives are just going to lose patience and start playing ugly. Next year we should sue on behalf of a German-American born in Peru but immigrated at age 16 claiming he's 'hispanic,' and ask the U of M to bring back old passbook-style systems to prove racial blood heritage. I don't look forward to it--it is, after all, pretty grim--but eventually someone's just going to pop and start playing the system.

Lawyers, Blogs, and Common Sense

Thanks to Martin for this article on lawyers blogging.

Of course, the issues involved are less complicated for a JD2B, but professional consequences are good reasons not to put anything too personal on a 'professional' site. Actually, the Curmudgeonly Clerk has a very good discussion of the ethics of law clerk blogs that you should read if you're interested and you've not looked already.

July 19, 2003

Attack of the Living Dead Special Prosecutors

Well, over at Findlaw it's attack of the living dead special prosecutors. Apparently: "If President Bush is truly the square shooter he portrays himself to be, he should appoint a special prosecutor to undertake an investigation."

And that'll happen on a cold day in hell. Even as the body count is ratcheting up, the hew and cry against the war and occupation is pretty much isolated to the frothing-at-the-mouth wing of the Democratic Party. Given that we Republicans drove ourselves near to self-destruction following the banner of the shamelessly salivating Clinton-haters, you would think the opposition would learn.

Oh, and don't bother looking to the article if you're hoping for a well-balanced evaluation of the facts. Yes, there's questions which should be asked, but Dean suggests that Congress was given false statements, and in six out of his eight points then rebuts points in the now-infamous State of the Union with concerns over such great matters as the difference between 'concludes' and 'estimates.' (Nevermind the fact that his sources for 'rebuttal' sat at the far-forgiving end of the spectrum, places like the International Atomic Energy Agency, as opposed to the Institute for Strategic Studies.)

The State of the Union was a speech, and meant to rouse the hearts and minds of the American people, not to be a lawyer's amicus. If there were facts that were 'misleading,' it certainly wouldn't be the first time it was done in war, nor only by Dean's cited Polk. I doubt Dean's prosecution would stand on the merits. But more important than the legal minutiae are the unescapable political facts, what should be called the Clinton Conclusion: the public does not like special prosecutions on subjects which, however illegal the actions investigated, do not go against their ethics.

After Lewinsky, it was impossible to doubt that President Clinton lied in court, but his popularity held because however lawful a prosecution might be, it was ugly. Similarly, it will be impossible to take up this cause without, implicitly, saying that one believes that the world would be better off with Hussein still in power.

Such prosecutions take time, and in that time the Corp of Engineers will have begun to restring the electricity and communications systems; an economy with reasonable fundamentals will begin to turn around; and with any luck a new and more impressive justice system will be in its formative stages. Bush's political career is already balanced on this particularly risky point, and if it fails, a special prosecution will be superfluous--Bush is doomed in his next election anyway.

And if it succeeds? Does Dean (or any sensible Democratic congressman, for that matter) seriously wish to begin a process in which the best witnesses may be former Iraqi citizens who, after testifying as to the haze around any 'fact' coming out of pre-war Iraq, will finish with the inevitable coda of Hussein's brutal treatment of his own people? Against this, does Dean truly wish to begin a debate over whether 'concludes' is misleadingly far from 'estimates?'

But perhaps Bush should merely appoint Dean to be special prosecutor? We already know the crux of his case, and while it will waste time and government resources, any such prosecution stands a good chance of ensuring his re-election. And between John W. Dean and Howard Dean, the Democratic Party might manage to beat the British Labour Party's 'longest suicide note in history,' at least if the length of the Starr report is anything to go by.

July 16, 2003

Nelson Rocks!

I'm pretty certain that as a disclaimer of liability this wouldn't be worth the paper it was printed on, even if it were on paper. But for a disclaimer with attitude, it's up there.

(Scroll to the bottom of the page.)

Protect and Serve?

I never really get on with Sherry Colb's articles over at I find she's generally willing to sacrifice a good argument for old dogma. Such is the case in her article today, The New York Racist Float Case.

The conduct in the case she mentions is deplorable, but I have to go along with the judge's decision: if the three men were off-duty, then tasteless as what they did was (and I have to wonder why the parade organisers allowed it), I can't see firing them not being a violation of 1st Ammendment rights.

What she advocates, though, is an incredibly broad interpretation of what free speech allows one to conclude:

One way of thinking about speech is as evidence of what a speaker is capable of doing. A public school math teacher who announces his strong belief that girls are stupid and unfit to study math cannot be expected to do a fair job of educating girls in mathematics, as his position requires him to do. A Humane Society employee who says that animals deserve to suffer cannot be trusted to provide nurturance and love to homeless animals. And a firefighter who finds humor in the lynching of a black man cannot be trusted to risk his own life to protect the lives of black men, women and children.

But is that truly the case? Is it not possible that a person can hold certain views, but because they hold those views and know them incompatible with their duties, perform their duties in any event? (Indeed, from what little reading I've done of legal ethics so far, aren't there points where lawyers are ethically obligated to act against their own personal beliefs, particularly in defending people they believe to be guilty?) A math teacher might make certain his techniques were more objective than his fellows, knowing his own prejudices; the fireman in question might risk more, knowing that his views will hold him to a higher level of accountability than otherwise. It would depend not only upon his speech, but upon the relative values he placed on honor, duty, his personal beliefs, and how much he values the opinions of those around him (and the negative consequences of those opinions). Indeed, by penalising employees merely for public speech, doesn't it deny superiors of opportunities to recognize that greater scrutiny is needed for certain individuals? [1]

I doubt that such ethical or honorable concerns are appropriate in this case (simply because someone who behaves in so undecorous a fashion on a public float probably isn't worried about dividing their public and private thoughts), but wouldn't it make more sense to advocate a heightened scrutiny upon the officers by, say, internal affairs (or even by journalists), and then firing them for something they've actually done in relation to their jobs? Wouldn't Ms. Colb be better off proving her assertion than just taking it for granted?

[1] For instance, if I were the superiors of the police officers in question, I'd be watching them like a hawk and suspending them at the first sign that they weren't doing their duty.

July 14, 2003

Homosexuals have an agenda... and probably business cards and a good powerpoint presentation to boot.

Out in the blogosphere there's been a lot of talk about Scalia's use of the phrase 'homosexual agenda' in Lawrence v. Texas, and whether it's a code word for all sorts of hatred.

I think people are getting a bit paranoid here. Yes, 'the homosexual agenda' is often used as a perjorative by folks like Helms. But what they're objecting to is not that a political group has an agenda, but the contents of the agenda itself.

If there is a gay rights movement, then it bloody well better have a homosexual (or gay rights, or homosexual rights) agenda. The Republicans have a Republican agenda, and while the Democrats will refer to it scathingly, it's not a dirty word. Conservatives (not always the same thing) have items on a 'conservative agenda,' and refer to it quite happily in the pages of National Review without wondering if we're comparing ourselves to communists. Having an agenda means you have aims and goals and is a good thing if you want to be a coherent entity. If the old management maxim is that 'a meeting without an agenda is a discussion,' then its political corollary should be 'a movement without an agenda is a mob.'

Is Scalia scathing of the 'homosexual agenda?' Well, certainly. Parts of that agenda include what Scalia would consider legislating through the court system, and it annoys him, especially since he's losing the argument. Does that make it (as Balkin contests above) the equivalent of calling Barney Frank 'Barney Fag?' Only if you're being hypersensitive to the point of ridiculousness.

July 10, 2003

Copyright norms and litigation costs

Over at the Legal Theory Blog is a particularly cool discussion of how legal costs affect the enforcement of copyright laws. Worth reading just to see the words 'in terrorem effect.'

July 03, 2003

'The Ghosts of Jamestown'

The aptly-named Adam Goodheart writes good-heartedly of colonial sodomites and the long history of anti-sodomy laws in the United States.

Because he's for the decision, he doesn't say vitriolically what his article makes perfectly clear: that Justice Kennedy writing for the majority in Lawrence v. Texas relied on some of the most meretricious junk history in order to prop up his ruling. Fair play, I've never liked anti-sodomy laws, and I don't care that somewhere, some gay folk are having sex. But the double-think required to go along with this past month's Supreme Court rulings is just too much. I can agree with the results of the decisions whilst still being ashamed of the manner in which they're justified.

June 25, 2003

"Critical Mass," or When Orwell Meets Oppenheimer

Well, I finished Grutter v. Bollinger, and it's hard to stay polite after going through it. After reading both decisions, I can't help but be disappointed at what are transparently two dressed-up compromises without the decency to admit they're masquerading as principles.

Justice O'Connor has played Napoleon. Not the French emperor, but the pig in Orwell's Animal Farm, whose most famous dictum is that "All animals are equal but some animals are more equal than others." The 'strict scrutiny' that the decision claims to require justifies every criticism that the dissenters in Gratz (for the most part the majority in Grutter) make regarding the punishment of 'openness.' Rather than simply decide that the 14th Ammendment permits some forms of discrimination (inviting the Congress to decide that it doesn't), or rule that such discrimination cannot be justified except in the most dire of circumstances, the majority embarks upon a 'third way' that would make Tony Blair green with envy. It does this by linguistically torturing words to the point to which they can no longer bear meaning. The majority opinion reserves its most lurid of definitional thumbscrews for two terms in particular: 'critical mass,' and 'compelling state interest.'

Continue reading ""Critical Mass," or When Orwell Meets Oppenheimer" »

June 23, 2003

Reading Gratz v. Bollinger

Well, like just about every other person with an interest in law, I've been reading Gratz v. Bollinger and Grutter v. Bollinger today. I've not had time to read the second yet, but my immediate reaction is, 'Wow. This is how to confuse the issue and satisfy nobody.'

Continue reading "Reading Gratz v. Bollinger" »

June 11, 2003

Sometimes I'm happy for copyright violations.

I probably shouldn't say that as someone who's trying to become a lawyer, and in general the free-marketeer in me thinks copyrights should be defended. But something odd came up today that's made me wonder.

Before I moved back here for the summer, I watched most of a Japanese anime called Revolutionary Girl Utena with some friends in Oxford. These were pirate downloads from the internet, not the 'official' products which sell for exorbitant amounts in the US and until recently couldn't be bought in the UK at all.

Now I've watched some of the licensed versions, and the thought I'm left with is, 'Thank God I saw the other copies.' Despite the horrible image quality, the subtitling was far better. I can only suppose this is because it was done by people enthusiastic about the task, rather than paid translators. In general, the pirate copies caught the sense and feel of the original, as well as having a stronger sense of drama. The licensed versions just have 'special features.'

So where does that leave the legally-minded? I'm happy that these translations exist--the 'fan-edited' versions of Cowboy Bebop are also better than what you can get on DVD. They give people an opportunity to enjoy something I think is quite special without having to learn Japanese themselves, or put up with sub-par translation. But they probably violate copyright law. [1]

The economist in me thinks the law should change with the times, and that those who used to be paid a great deal of money to choose what should be distributed in the audio-visual world when distribution was difficult are using the law to maintain their profits long after their usefulness has come and gone. (The recording industry was clearly in the right, and Napster was clearly taking the mick in its trial, so far as I can tell. But the idea that music file sharing will get rid of good music is ridiculous--by disintermediating the record distributors, music should become cheaper, more plentiful, and provide greater selection than Ms. Spears v. Ms. Aguilera.) But that seems to be a long time coming.

Until then, I'll find it difficult to reconcile the fact that what are, as translations, in their own right works of creativity and skill are actually violations of the law.

[1] Someone with a bit more knowledge than me would have to tell me whether it did in fact violate the law. To the best of my knowledge, the translation of these files was done before a 'licensed' translation had been performed. Who knows whether or not the product was translated before the rights to do so had been sold--I certainly don't. I somehow doubt it matters, as the visual aspect of what was copied probably broke the law. But I'm not going to state that as a definite.

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About time I read this...


Projects I've Been Involved With

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

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

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

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

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

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

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

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

Crescat Sententia
Hillary II
Politics and Principal/Agents

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

Surveying the revival
Birds of paradise

Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...
For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming

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

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

Letters of Marque
And there we are

Signing Off

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

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

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

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

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

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

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

Distractions for stressed law students

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

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