Unused and Probably Unusable

(Later-than-last post:) I win! Also, Powerblogs is the new place.

2005-08-04T13:19:00.000-04:00

A big thank you to Howard Bashman for choosing my entry in his contest to find the dumbest possible question to ask nominee Roberts at his confirmation hearings. I'm a winner! Or a loser! Depending on how you look at it!

A reminder that my new blog address is still http://unusedandunusable.powerblogs.com, and so please change your bookmarks/RSS feeds/ blogrolls/ names of your children to reflect this change.

And yes, I know Powerblogs sometimes acts weird and won't load; I'm looking into the problem, but trying again in five minutes should do it.

Howard's contest winner announcement is here, and my victory speech is here. Also, Chris is right: Righties should just Get Over It Already About the Gayness. We're not heterosexist, you are, and it's Not Our Problem if you see evil intentions behind every Bush, er, bush.

Thanks for the memories,

Eh N. (see you over at the new site at powerblogs!)

Change your bookmarks/ blogrolls/ RSS settings/ minds: New Address for U & PU

2005-07-29T15:01:00.000-04:00

Good news! I've got my new blawg address, and it's going to be

http://unusedandunusable.powerblogs.com

So update your blogrolls/ rolodexes/ bookmarks/ etc.!

Actually, this is not likely to be the last post to unused and unusable at blogspot; this page will remain here as living archive and as a backup in case powerblogs is temporarily unavailable.

However, new posting should occur over there as soon as I work the kinks out.

Feedback on appearance and usability - there should be none, Recall the Name of the Blog - is important to me. No, I don't really mean "utility," that'd be how "useful " the blog is to you, and I expect it isn't, mostly. But I want it to be able to be used, perused, abused, and amused by and through you, the readers. It's the difference between a book being literate (2nd meaning: the quality or condition of being knowledgeable in a particular subject or field; also see learned [2nd meaning; adjective, possessing profound or systematic knowledge; erudite]) as compared to being readable, ya know?

As an aside... not that I ever have those... I think the word "erudite" is much funnier when pronounced "air-you-ditty" than the way those stuffy prescriptivists would have us do it, don't you?

To sum up: new blawg address, this one will continue to exist but not as a going concern, please change your pointers and links to H tt p colon slash slash Unused and Unusable dot Powerblogs dot Com, at least as soon as it's up and running, and lemme know what you think.

Thanks to everyone who has commented or given me feedback. It wouldn't be worthwhile - indeed, it would not happen and would be extraordinarily frustrating and meaningless if it did - without you.

Eh N.
Sole Proprietor, U & PU Pty. Ltd.
Philadelphia

Thoughts on the Bar; forthcomng posts; a word of thanks.

2005-07-29T10:47:00.000-04:00

On the Bar exam

To those who have survived it: congratulations. In approximately 3-4 months (they're shooting for less than 90 days in Pennsylvania, despite a record-breaking largest-ever pool of applicants taking the test) you'll receive word (Pennsylvania applicants: look for the list in the Legal Intelligencer as well as the released list at pabarexam.org) that you are, or are not, allowed to practice law in your jurisdiction. Congratulations if you pass, and do not despair if you do not. Most people do pass, at least in Pennsylvania; check your local listings for specific information.

People do fail the Bar, and retake it, and most pass. You have seen the worst it's possible to get; you took the prep classes (I hope), you studied in misery and solitude and desperation, and you sat for the Bar. Doing it again is undesirable but far from uncommon.

On taking it itself, if you're wondering:
- Harder than you can probably imagine, the studying and preparation and sitting for a two-day multiple subject closed-book test of will
(unless you're a med student, in which case, this will all seem like whining)
- Easier than you picture, if you believe the hype. It is not the "hardest thing you've ever done."

Taking the SAT was hard. Taking the LSAT was hard. Going to law school was hard. The Bar is not hard. The Bar is a massive, difficult, unpleasant, soul-crushing task, but it is not *hard*. It's a "test of minimum competence." Follow the instructions, read the questions, prepare adequately beforehand, and you should pass if you are good at tests.

On the fact of relatively easier questions:
BAR/BRI warns its students that their scores are lower on the practice tests than they will be under testing conditions. This is because the Bar is easier than the practice tests.

The simple explanation is that the Bar examiners release bad questions, don't want or need them anymore, and that's what BAR/BRI and the others have to work with. You practice on the ones so poorly written, so badly planned, so unanswerable that they're available to the practice class folks. The Real Questions aren't that awful, that unfair.

Forthcoming Posts
I've been lax in posting lately, but I'm getting more used to the idea of regular, meaningful posting, and have some ideas in the back of my mind.

I plan to post about:

oaths. there was some good blog chatter in the blawgosphere about various pledges and oaths. I have a little more to add, and want to bring together those links in one space. I also had a great comment, thanks Anonymous #4, about the duties all attorneys should feel, the weight and responsibility of being "Esquire" in the post on that word. I have the sense that this is a theme I will return to: our duties, as well as our privileges, as lawyers.
Scalia. I keep promising this; it's coming, it's coming. It'll be my longest post yet, and it should be as cleanly written as possible so that it's at all readable.
Class actions. They're a funny old procedural mechanism, but they offer vast opportunities for abuse and redemption of the legal system. How are they used? What's wrong with them? What's right with them? What wrong decisions have been made about them? I don't know it all yet, but I want to explore some of these questions. On that note, anyone know of a decent blawg that focuses on Class Action matters? Overlawyered hits the negative every chance they get; Evan Schaeffer portrays the positive side in his kind of litigation. I want to be more general, and as balanced as is fairly possible.
Words, meaning, and language. We "do" words in the law; just as mathematics is the true language of science, words, English words, are "the language" of (American) law - except, as noted previously (the post on Esquire, among others) where it's foreign words, and except where science is the language the law must use, or where any other specialized subject matter with its own language must come in. Even where there's jargon, though, Law is made (and argued before and decided by) humans, who operate in ways that linguists (as well as, say, psychologists and sociologists) study. I'm interested in this last aspect. The brouhaha (love that word) over the use of the word niggardly (what an ugly-sounding word) for example: What does it mean to use that word, what impact on your effectiveness as an advocate or as a persuasive writer is there when people are focusing on it?
Roberts. He's been the focus of attention in politics and law for some weeks now. I've discussed him in comments on other blawgs, I've briefly described him, but I suspect that I have some organized things to say if I bring my thoughts to bear. And if I don't, this post won't happen.

As always, I welcome - indeed, beg for - comments about which way this blog should go. I've got some ideas, but this is primarily a communication tool rather than a traditional part of the Media. I can't have a conversation if noone else plays, even though there's no obligation to identify yourself in comments nor to check back to see if I've responded (or if anyone else has, for that matter).

And, for those of you who like to know this kind of thing, I'm moving to Powerblogs in the near future, thanks primarily to the suggestions of Mike of Crime & Federalism blog. Yes, I realize he's on Typepad. That's not the point. Thanks for the advice, Mike, and to everyone else (Sean Sirrine, the Volokh gang, others) who have given feedback or otherwise had useful posts recommending one or another of the various hosting services.

This blog will remain here as is, preserved, as an archive; I will be starting-over-with-links-both-ways on Powerblogs in the coming days and weeks. I hope you'll like the new Look of Unused & Probably Unusable.

Eh N.

WOTD: Esquire. Also: Fn. 4

2005-07-22T14:45:00.000-04:00

In honor of all my friends who are pre-Bar (but about to take it), post-Bar (yay, we made it), and pre-Law (man, are you in for it), we present the Word of the Day:

Esquire.

Not the magazine. Although that's an interesting point you make, indeed it is.

Here's my favorite discussion of the word I've yet seen, over at JD Jive.

Short summary of the above: Everyone's down on the Esquire thing, even though it's shorter than Attorney At Law and is thus useful in identifying recipients of correspondence as Lawyers (unbelievably useful, when it comes to discovery disputes or privilege questions years and years down the line), and besides "Counselor" is trendy but oddly meaningless, and "Doctor" isn't really available, since there's already multiple kinds of Doctor out there and we're not really any of them. And you should avoid using Esquire anyway lest people think you are an ass.

Not that there's a governing body that regulates Esquire-usage. But if you make someone think you're a lawyer when you're not, Bad Things Could Happen (google search for Unauthorized Practice of Law).

My favorite part of that favorite discussion: when the Brit points out that Over There, everyone is an Esquire, by common courtesy, say on the Cheques they get from the ~~Banque~~. ~~Banke~~. Bank. Whatever they say over there, in their Auld English. Or should that be Olde? Or Eldritch? The Queen's Tongue, in any case, and isn't that an ugly expression.

Speaking of Royal Tonguing, which we weren't, who here has confirmation or disprove...itation... of the famous story of why Spaniards from, say, Madrid use the infamous "thetheo," the lisp by which a perfectly good word like Zorro or Zapato (or Zapatista?) becomes Thorro, Thapato, and Thapatista, respectively. And no, it's not Thatpatithta. [see the update, below]

My informants tell me it's due to a historical king, one with a Lithp, whose courtiers and noblemen and other hangers-on imitated, and thus you had a top-down linguistic change, much as the upperclass in England imitated the King or Queen in order to seem or sound socially Higher. [again, see the update] Then as the change percolates down, the lower classes (whatever that may mean) pick it up, and then everyone does... unless the educated and elite changes again, in which case it may take time for that change to percolate down. If it ever does; some social groups - well, don't say stagnate, but let's say have extremely strong and well-grounded phonological features, such that you see stable survivors of long-gone vowel shifts or word changes in discrete and insular populations. [this part is all true, it's the Spanish history that's suspect - or wrong]

Ha! I said Discrete And Insular! So there we are, back in lawyerland, for that's a direct quote from Carolene Products' Famous Footnote Four, see e.g. Answers Dot Com and Balkin article, for general background, not to mention Jack Balkin's followup.

...and also Supreme Court History, halfway down (text search for footnote)

... heck, just see for yourself (google results). Or you could just read the case and see (it's footnote four).

[update: see the comments for some corrections of my Spanish knowledge, and some generally useful information]

Seeking: an anonymous blogger

2005-07-21T11:02:00.000-04:00

[bumped, because she's been located; see update at the bottom of the post]

I'm looking for an anonymous blogger.

What's that you say?

Why bless you, young sir/madam. Yes, that's true, I am in fact _an_ anonymous blogger. In fact, I'm even An Anonymous Lawyer, or an anonymous blawger. All true. Yes.

How true.

What's that?

Oh. Right. My point.

I'm not looking for me. I wake up in the morning, brush my teeth, comb my hair, stare into my beautiful eyes in the mirror, then put on my flowing cape emblazoned with "Eh. N." and my red boots and...

Right, my point.

I read a blog briefly, perhaps a month or two ago. She was an anonymous blogger, an anonymous lawyer, and she had a template that looked, believe it or not, just like this one. That means she used Blogger to blawg for free. She was a NY Associate at an Unnamed Firm, and she had some sort of clever blogging name, indicating her thoughtfulness or her acuity or her literary sense or her devilish charm; I forget entirely.

I made a mental note to visit the blog again in the future, see if she had kept it up, if further developments had occurred, that sort of thing. From reading the Stankowski Report, Anonymous Lawyer, Phantom Prof, and Coyote Law among others I have become fond of anonymous blawgs that are well-written.

Alas, Evan did not take note of her; she was, he pointed out, one of those bloggers without a blogroll. The point he makes, I think, is that unless one blogrolls, even if comments are open, one is not in any sense a part of the blawging community. Blawgging? Blogging, ergo blawgging? It looks too ugly with two g's after a w; I declare it to be blawging, analogous to scrawling or trawling.

One may, in point of fact, be a member of the blawging movement, or even a supporter of and avid reader of blawgs; but unless one maintains permanent links, shows who the community is (I just joined a legally inclined weblogs ring, look down the right side of my blog after the other links), one is On One's Own. I put up a link to Evan, and to Volokh and to Kleiman, as soon as I got rolling. After all, Who Am I, unless I tell people What I Read?

So: a call for a blawger- one in particular. Have you seen her? Are you her (she? no, her)? Is she still working at Unnamed BigLaw Firm in NYC, does she still have Boyfriend and Cat, is she still living in an apartment? I don't actually care about her personal life, I'm interested in her writing. Anonymous Associate, where are you? Come back. I want to link to you.

sincerely, Eh Nonymous

[update: Found her! Or rather, she found me. Thanks, "Lawgirl," aka Opinionista, of http://opinionistas.blogspot.com/. I'm not sure if an opinionista is one who has opinions, and if opinionistas.blogspot should therefore be read as Opinionista's Blog spot, but I do know this:

You post, frequently. You write at great length, with little decorum. You are blunt, hilarious, and your screeds about filthy partners, unconscionable billable hours, and zombie-like associates make for fun reading... from a distance. I wouldn't want to be in that apparently hellish environment, the occasional positive feedback or no; I'll stay right here on the Light Side of the Force. See, for example, the other Lawgirl at On Firm Ground, http://onfirmground.blogspot.com/, who is a 3rd year associate in a small firm.

Also: I notice that much like "anonymous" for blogging purposes, Lawgirls (and Lawgeeks and some variants) are pandemic in this part of the blogosphere. Are we so uncreative? Do we have so little to say with our chosen names? In my case, yes.

Eh N.]

Here's my guess about the President's announcement tonight: Clement's it.

2005-07-19T17:52:00.000-04:00

Court speculation centers on female judge.

Thanks to a link... nay, two links on Howard Bashman's How Appealing, I now feel confident that my prediction to him will prove accurate:

I predictify that Edith Clement, formerly of the Eastern District court in Louisiana and the Fifth Circuit Court of Appeals, educated at Univ. of Alabama and Tulane Law, former Law Clerk to Christenberry of the Eastern District of LA, white female (see her biography unless it's overloaded, in which case, try google cache...) and double-Bush appointee, will be our newest nominee for Associate Justice of the Supreme Court.

My said predictification in no way obliges me to use, recognize, or consume crow in the event my prediction is, much like my previous ones, dead wrong in the light of subsequent events.

However, as I told Howard, I don't think Edith H. Jones is confirmable, despite her eminent qualifications, and so I think the Other Edith it will be.

Anyone care to state that I'm right or wrong? Time stamps will be honest.

[update: According to ABC news, I'm already wrong, and it's not even 9 p.m. yet. http://abcnews.go.com/Politics/SupremeCourt/story?id=953790 "Source: Clement Not Bush's Choice for Supreme Court." Well, thanks a lot, Associated Press. You've helped preserve my perfect record for predictions, at zero. Well, if I still think Jones is unconfirmable, and Clement's not it, and Gonzales is unlikely, that leaves a few female/minority/esteemed conservative intellectual candidates, plus the rest of the country. Ones I'd like to see: Maybe McConnell, maybe Luttig, maybe Roberts, certainly a genuine female or minority candidate who is less hidebound or doctrinaire or rigid or wrong than Scalia. If Scalia is Bush's model for diversifying the bench, I'm throwing in the towel. However, I suspect Bush is thinking more along the lines of Gonzales (although as I've said he's unlikely to pick him, in my [worthless] opinion) or Judges Janice Rogers Jones or Priscilla Owen.

Which do think it will be, now that I've been proven wrong about who I thought it already was? Well, if you stick out your neck, I'll stick out mine. Or more likely, I'll "forget" to post until after the announcement, and then declare that I was predicting them (mentally) all along.]

Who's In, Who's Out, and Who's Down

2005-07-19T08:44:00.000-04:00

Let's start with the easy ones.

Down: General William Westmoreland, 91, WW2 hero and commander of U.S. forces in Viet Nam, at a retirement home in Charleston, South Carolina.

In: Dr. Lester M. Crawford, new permanent head of the Food and Drug Administration, after the Senate finally last night confirmed his nomination by President Bush, apparently by an "overwhelming" margin. I gather there was some controversy about the morning-after pill, and thus about abortion. This, folks, is where science and safety run head-on into immorality and social choices. That is, some folks make the social choice to hate women and hate sex, and they impose their immorality on the rest of us as best they can. The morning after pill is not abortion. It's contraception. Also, "life" does not "begin" at conception in any meaningful way. Life, as we now know, Begins at 30. (also see: "Life begins at 8:30"; "Life Begins at 50"; etc.)

Out: The New Harry Potter, wherein he is &-ed by the Half Blood Prince. Weekend box office for movies is not harmed (Willy Wonka), but apparently hundreds of thousands or even millions of people got started on the thick (several hundred pages shorter than at least one of its predecessors) book, as 8.9 million (ish) sales helped set a new record for mass buying.

Also Out: Larry Brown, sometime coach of the Philadelphia 76ers basketball team, may be done in Detroit as the Pistons "appear" to have finalized deals for his departure from the team.

Additionally Out: Andreas von Zitzewitz, who resigned from the board of Infineon Technologies in the last few days, is suspected of having accepted bribes or kickbacks in connection with a sports sponsorship deal.

Very, very Out: Eric R. Rudolph, unrepentent murderer and maimer of adult humans on behalf of unborn ones, was sentenced, unfortunately not to death. The bomber of the Birmingham, Ala. clinic, in an attack that left its director of nursing Emily Lyons half-blind and permanently damaged, made a fetching figure in the courtroom. The coward, sentenced to multiple life sentences already and with more to come for his attacks on abortion clinics, a gay club, and the 1996 Olympics in Atlanta, is a terrorist in the most literal sense. Rudolph, who thinks he knows what God wants, took God's Justice into his own hands and hurt 150 people, killing 2. The sinner, who believes his stance against abortion (don't protest it, work to minimize its effects, try to discourage it, or speak about it; instead, murder the people who enable it) was dictated by faith and by his God, will presumably rot for the rest of his life in prison, unless someone someday pardons this sleazeball. Mr. Rudolph's only redeeming act: informing law enforcement where his cached supply of more than 250 pounds of explosives was hidded in North Carolina, which allowed the safe disposal of the potential hazard to any other innocents who came near. For this act of cooperation, prosecutors had agreed not to seek the death penalty.

A few more words on Rudolph, and then I'll forget about him until the day he dies:

he was a serial bomber
he thought that abortion, which he likened to vomitoriums, should be opposed by deadly force, and was upset that "Those who attempt to save the lives of unborn children and who wish to promote a culture that respects life are now treated as fanatics, threats to American freedom." Because he respected life so much, you see.
he was a cop-killer
he owes over a million dollars in restitution to victims and families who will never receive anything from him

I am ashamed of you, Mr. Rudolph, but mostly I am glad that you are imprisoned now and will not be able to murder any more humans. Innocent, guilty, sinners or saved, all were imperiled by your bloodthirsty and inexcusable rampage.

A trademark comment! On a linguistics blog!

2005-07-18T13:39:00.000-04:00

Insults! Insults and slurs and slang and labels! And reclaimed labels!

I read with glee Geoff Nunberg's comments on the disastrous decision by the US PTO (patent and trademark office) to reject the federal trademark registration application by the well-known and well-established group DYKES ON BIKES, a San Francisco-based group of motorcycle afficionados who have participated in public events in that city (and have spawned imitators and fans and clubs across the country) for years. See "Adverbial License" over at Two Language Log Plaza (I joke; I don't know the proper mailing address for the purely hypothetical Language Log Plaza).

Geoff takes some richly deserved shots at the PTO, at clueless attorneys or judges who stray into the field of lexicography and semantics without proper circumspection (he singles out Judge Colleen Kollar-Kotelly for her decision in the suit involving the Washington Redskins; since I haven't read the case, I can express no opinion on the merits of her opinion).

The post is most worth reading because Geoff drops in some thoughtful questions for the reader, such as "What if the Family Research Council" got ownership of the Dykes on Bikes trade name, and tried to use it on t-shirts with profits going to their (anti-gay, anti-family, anti-research) agenda? Interesting indeed.

For more "cursing," see this post here.

Becker - Posner blog steps into the Gay Marriage debate - with reasoning

2005-07-18T12:12:00.000-04:00

Over at Becker - Posner blog there are a pair of posts, the one I linked to by Judge Posner called The Law and Economics of Gay Marriage - Posner and another by Prof. Becker called On Gay Marriage - Becker, available here.

The nice thing about the Posner one, at least, is that it argues as I have: marriage is an institution, one that is traditional in the sense of utterly malleable as society's needs and nature changes. It also makes the point (sensible, to me) that outrage based on unreasoned prejudice is potentially not something that society should weigh when making decisions that affect everyone, or that affect minorities in particular.

Outrage, Posner says, can't simply be ignored. Judges in particular should not court outrage by rushing out ahead of innovation by legislators. I happen to disagree; Brown v. Board was the right decision to make, even if as I have argued it was arguably wrongly reasoned. (Along that line, see Jack Balkin's blog about his new book, What Roe Should Have Said. Kudos to him for a pair of snappy book titles. These are edited by Balkin and include various "opinions" written by some very smart people. The Roe one in particular looks worth a look; it's got a scathing dissent, various fascinating concurrences, and lots of healthy debate (through opinions, not in the form of actual bickering). Put it on your list... after perhaps Harry Potter.)

So: Becker-Posner posts, worth reading. Balkin's book, also worth looking into. Also check out both blogs; they may any of them be wrong, but they're all very very smart about it.

Index: get your index here!

2005-07-16T13:59:00.000-04:00

Hey, sports fans. (Yes, that's my favorite cheerful form of address.)

I wanted to take the opportunity to point out a link you may not have spotted, down the right hand side of my blawg. Right under the words "Previous Posts" there's a link to My Index. It's reverse-chronological; unlike the monthly archives or this main page or the Previous Posts list, the Index has all of my (now 35) posts in one place. It also has a short parenthetical description or commentary for each one. If you wanted to find one particular post, you could try using the Blogger or Google searches, or hope you could find it using guess-and-check. Or, you could just check the index, and scroll on down.

At this time the index has only one post, the chronological list. At some point I may also collect my posts by category or type, and create additional posts at the Index. In that event, I will bump up the main list itself so it will always show up first.

Hot hot news: Return to Flight, and other ephemera

2005-07-13T14:00:00.000-04:00

What's happening Today, Right Now?

Space Shuttle Discovery is in its scheduled 3 hour hold before launch; as Countdown 101 will tell you, T-3 Hours and Holding typically lasts a couple hours, and during that scheduled hold the inertial measurement unit gets its preflight calibration, and the Merritt Island Launch Area (MILA for short) tracking antennae are aligned. This is the final series of holds; there's another important one at T-20 minutes, and yet another at T-9 minutes. Each one lasts at least a certain length of time, varying on outside conditions, specific circumstances, and technical decisions. Some of the earlier holds, such as the one at T-11 hours, which lasts 12-13 hours, last much longer than these last few.

In my only two experiences of waiting for T-0 liftoff, I was very frustrated by the tendency of the Shuttle Countdown Clock to inch downwards and then stop for scheduled or unscheduled holds. Both were for Shuttle Columbia's next-to-final launch; the first attempt was scrubbed due to a last-second (literally!) spike in a sensor reading in the hold; when the next window was attempted, lightning within 10 miles prevented the launch from ever getting closer than T-9 minutes, as I recall. They won't come out of that hold when there's a weather hold, is my understanding. I believe that the First Lady and First Daughter were present at the VIP viewing station at Cocoa Beach, like me, at that second attempt. I wound up watching the launch itself on a t.v. set at home.

The mission after that, Columbia was lost. [update: I mean, the next time Columbia flew. Columbia's next and final mission was STS-107. She was lost upon reentry with all hands aboard, see en.wikipedia.org/wiki/Space_shuttle_Columbia and en.wikipedia.org/wiki/Space_Shuttle_Columbia_disaster for the whole sad story of February 1, 2003; it was the second total loss of a shuttle in flight and also the second such loss in my own lifetime.]

[correction to the update: Man, I can't get anything right. As the two above Wikipedia links indicate, Columbia's next-to-last successfully completed mission was STS-93, commanded by Eileen Collins, which launched in July 1999. Its final completed mission lasted from March 1-12, 2002, mission STS-109. The final, incomplete mission was STS-107, Columbia's 28th mission. The mission numbers are not chronological because each mission represents the objectives and tasks of a specific mission planned out in advance; the actual order of missions launched depends on such factors as technology (the parts, supplies, tools and payloads must be assembled together) and logistical considerations (which misison is more urgent, how can the limited and even scarce resources of NASA best be used). Even with duplication, multiple shuttles, and many many millions of dollars, this is still a shoestring operation. Launching three shuttles simultaneously (all three in orbit at the same time) would almost certainly overwhelm NASA's capacity to monitor, communicate, and coordinate the missions. We are not yet a real spacegoing nation nor world. We're still exploring our own local neighborhood. I should break this out as a separate post on Space exploration, shouldn't I.]

Eileen Collins, the first female shuttle commander, was on board when I watched Columbia's two aborted launch attempts. She successfully commanded the mission that took the Chandra X-Ray Observatory to orbit. Now she is about to begin another mission as commander, aboard the Discovery as NASA makes its heralded Return to Flight. Google news is full of Discovery coverage; NASA has a real live countdown clock you can watch, holds and all, at Launch Coverage (the other clock, running down to estimated time of launch, is counting down to six hours as I write this).

In other news: Bernie Ebbers is getting sentenced today. You remember him? CEO of Worldcom, which was a bigger fraud than Enron?

Subsidiary rant:
You remember Enron? It led to the effective demise of Arthur Andersen LLP? You remember Arthur Andersen? They were criminally charged with knowingly shredding their client's incriminating documents?

You might recall that the Supreme Court overturned their conviction on the important technicality that the jury charge was worded in a way that may have - may have! - allowed the jury to convict even if they did not in fact believe that AA acted with a sufficiently culpable state of mind, under the statute.

Of course, if AA hadn't been charged, they'd have been sued out of existence by Enron stockholders, suing on their own losses and on behalf of the company that should have been prevented from committing the vast frauds which made it so apparently profitable, and so monumentally criminal. If AA had been charged appropriately, it would have been convicted and its life as a corporate entity probably terminated. If AA's jury had been asked, "Are you convinced, beyond a reasonable doubt, that Arthur Andersen or its responsible agents had a culpable state of mind when they ordered the document destruction," people would not today be talking about the firm being "overcharged" or about prosecutorial abuse of discretion.

End of subsidiary rant.

So: Bernie Ebbers. Already found guilty of perpetrating massive fraud - I mean, really massive. Do you know how big $1 billion is? Can you imagine a fraud that size? That's not WorldCom. WorldCom was an $11 billion fraud. ELEVEN. Anyway, the poor victimized former CEO will experience a book, perhaps thrown at him, later today.

In other news... Karl Rove: still free, despite probable cause, based on the media coverage I've read, that he committed a federal felony - or possibly treason during wartime. I'm not the prosecutor, of course, but if Fitzgerald (who is) knows something I don't, I'd love to hear it.

The Lefty Blogs are, of course, all over it. The Righty Blogs are, with some exceptions, pretending that this isn't happening. The same sort of thing, in other words, each time an event of dubious importance involves these persons of merely political importance, and there's a political benefit for one side and a political cost to the other. The partisans line up, beat each other up, and then nurse their grudges until the next political football comes along. I'm not much better, but at least I know I'm doing it.

In that same vein:

Excellent article the other day by Judge John Carroll, Professor of Law at Cumberland School of Law, Samford University, about the curse of the correct jury verdict.

This article deserves its own post. Unable or unwilling to provide said post, I hereby offer you the link. Scrushy case suffers the 'curse' by John Carroll, Monday 04 July, 2005, the Birmingham News.

Read this article! See if it applies to you. Are we all hurting the legal system, by playing along with the (stupid, stupid) media? Read the whole thing!

[update: the countdown clock is now at 1 hour 54 minutes and counting. Exciting! We're headed on toward the next scheduled hold, currently Go for launch. Try to catch it on t.v. if you can!]

[update to the update: Scrubbed, of course. Today's launch is postponed, and NASA's most officialest explanation is that the cause is "an issue with a low-level fuel cutoff sensor onboard the vehicle. The sensor protects an orbiter's main engines by triggering them to shut down in the event fuel runs unexpectedly low. Mission managers are currently assessing the problem. More information will be announced as it becomes available. " The non-official countdown clock proceeds towards 3:51 pm EDT July 13, but when it hits that, nothing happens. The official clock reads 0h 0m 0s (those're zeroes, for those inclined to read unintended sexualist slurs from hours, minutes, and seconds) with a note that "today's launch has been scrubbed." To me, that means "try again later, maybe tomorrow, at the soonest." As of an hour ago, all the news media still thought it was a go. Therefore, this post is timely. Woot! Relevance.]

Also updated: Bernard Ebbers, ex-CEO of WorldCom, has been sentenced to 25 years in prison for his role in the fraud that ruined the company he "built into a Telecommunications Giant before his fall from grace." The largest U.S. corporate bankruptcy in history is your legacy, Bernie. The federal judge, Barbara Jones of the Southern District of New York, told you that you "w[ere] clearly a leader of criminal activity in this case," as she sentenced you. Shame on you.

Placeholder 2: Things to write about in time

2005-07-09T21:37:00.000-04:00

Sneak peek! Inside view! Behind the scenes! Background information! A look ahead!

Placeholder Post 2: Post topics I'll be working on in the comings weeks and months.

adoption by homosexual, lesbian, multiple married persons. I'm in favor of families, against child abuse, and appalled by arguments over gay/lesbian/etc. parenting that fail to return to the primary rule of all child protection and custody and support law: the best interests of the child are paramount. If you want to sample my views before I articulate them, consult Loving v. Virginia (and the Massachusetts gay marriage decision, Goodridge v. Dep't. of Public Health), Lawrence and Garner v. Texas (not to be mistakenly called Lawrence v. Garner, as so many, including me, do) and two novels by Robert Heinlein: Friday, and The Moon is a Harsh Mistress (containing positive depictions of group marriage and line marriage respectively).
bad opinions, bad outcomes, bad rules. Wickard, Raich, and certain rules regarding juries, like the one barring juror testimony except about the presence of extraneous prejudicial influence on a jury.
Scalia, of course. Megapost is in the process of slow assembly. Includes such criticism as accusations of fair-weather federalism, and fair-weather textualism
class, power and money. taxation. property. how law is made, and for whom.
grand unifying theories. Of what? Well, wait and see.
stuff i'm a fan of: paradigms as meme (or memes as paradigm); topology as a concept; puns as artform; sociolinguistics in practice.
evidence-based medicine, and why we see so little EB practice in law.

Expressions of particular interest of, or of outright antagonism toward, or utter incomprehension regarding any of these topics, or any other, will probably spur writing on said topic. So leave a comment, and have a say in what you see.

I change my mind: I think Rehnquist will jump

2005-07-08T16:30:00.000-04:00

I commented recently that although "He may go today, he may go tomorrow, but I bet he'll wait until next week." From the buzz now online, I gather that my prediction, although well-founded, may be wrong.

Drudge, Fox News, and Novak all agree: it's possible that maybe conceivably Chief Justice Rehnquist is announcing his retirement today, after Bush touches down upon his return from the G8 summit.

Of course, the main thing we have to go on is rumors. Rumors, and innuendo. Our two main sources are rumors, and innuendo, and totally unfounded guesswork. Our three, three basic sources of information are rumors, innuendo, totally unfounded guesswork and hallucinogenic mushrooms.

Nobody expected the Rehnquist resignation!
/Monty Python

Calling London: hello, we love you.

2005-07-08T07:49:00.000-04:00

That's a reference each to the Doors and the Clash, not in that order, and that's enough flippancy.

In this time of tragedy, in the wake of the coordinated terrorist attack upon London's commuters (and residents and peace of mind), I can't do better than did Kip, Esq.:

Prime Minister Tony Blair, addressing Parliament, September 14, 2001:

Murder of British people in New York is no different in nature from their murder in the heart of Britain itself. In the most direct sense, therefore, we have not just an interest but an obligation to bring those responsible to account.
Our sympathies to the victims and their friends and loved ones. And our best wishes, and thanks, to all our allies in the War on Terror in London and throughout Britain.

Well said. The NYT editorial, the piece by Friedman (flat world, flat world) about this being an issue in desperate need of Muslim involvement on the other side of the problem, this isn't enough. Attacks in London are not even "like" attacks on our soil. This is our civilization, our ally, our friend, our relatives, our ancestor-nation, our oppressor, our culture, our world under attack. Just because one has political differences with one's family members (and sister-countries, and fellow citizens) doesn't mean that their murder is diminished.

Terror's bad, folks, bad as it gets. Our current executive may be my least favorite American President, but his resolve to fight against and publicly denounce terrorism are not factors in that calculus. Today, let there be no divisive politics, let there instead be sympathy and succor and rage and measured response and unanimity of opinion: we the people of America, of the West, of Earth oppose this.

In defense of Roberts

2005-07-06T19:29:00.000-04:00

I googled "Switch in Time" and you know? - even when I included Judge Pollak's name, the thing that popped out, Edward Lazarus' article praising Judge Pollak's reconsideration in the famous fingerprints case, see "Why judges rarely change their minds," was part of the problem.

There's a line of dialogue in a book that I like a lot, one that asks, "Was there ever anything that 'everyone knew' that ever turned out to be true?" [Incidentally: the response, in a hard-to-find short story titled "A Rose By Any Other Name," by sci-fi author Spider Robinson, ran along the lines of, "Ice is cold. Fire will burn you. Falls can kill you" and finished with the truism that "everyone knew to be true" that was in this case similarly true. (Don't bother me with dry ice or cool fire or safe falls; that's not the point). This is not one of those exceptions.]

Everyone knows that Roberts switched his vote, without further jurisprudential consideration, but based only the prudential consideration that Roosevelt was going to pack the Court and something had to be done. Everyone, in this case, is very wrong.

Judge Louis H. Pollak, acclaimed by the abovementioned E. Lazarus as one of the best federal judges in the country, explained why in a quietly delivered speech subsequently published at 145 U. Pa. L. Rev. 495 (1997). That's the 145th volume of the University of Pennsylvania Law review, article starting on page 495 to you non-lawyer types. Go check it out. I'll wait.

Now, if you can't go check it out (no subscription to the UPALREV or perhaps no hot & cold-running lexist/weslaw where you are), you should know this:

The speech, titled: PHILADELPHIA LAWYER: A CAUTIONARY TALE, contradicts what you are likely to have read about Owen Roberts. That is, you probably don't know of him at all, but if you'd heard the Switch in Time libel and believed it, this'll set you straight.

The cautionary tale (for such it is) has some high and low spots, as most lives will. The money quote is:

For almost sixty years Owen Roberts has been pilloried for the "Switch In
Time." I think that one who criticizes him--as I do--for the decisions
leading up to the "Switch" ought to acknowledge that the Justice deserves praise
for having had the gumption to change his mind.

Pollak says that Roberts was "right in Korematsu" - high praise, considering how monumentally, how awfully, how completely wrong the majority in that case (323 U.S. 214 (1944) - that is to say, the 323rd volume of U.S. Reports at page 214 and following, decided by the highest court of the jurisdiction, here the Supreme Court, in the year 1944) was - but had an undistinguished tenure on the High Court.

As a Philadelphia lawyer myself, who hopes to avoid becoming a cautionary tale, I leave you with Pollak's haunting conclusion to his section on the infamous Switch in Time/ court-packing episode, as he describes Roberts' writing, at Frankfurter's request, of an explanatory memorandum that demonstrated that his decision was in fact principled:

One can sense how grievously Roberts's later years on the Court must have
been shadowed by the "Switch In Time" calumny when one thinks about the loss
of dignity the Justice must have felt as he drafted that exculpatory memorandum.

Open Letter to Leo Stoller, Stealth (tm) Trademark holder

2005-07-05T07:48:00.000-04:00

Dear Mr. Stoller,

I was fascinated to read about your courageous efforts to prevent others from infringing on your registered mark, in the NYT and on Language Log, a linguistics blog. I think the post at http://itre.cis.upenn.edu/~myl/languagelog/archives/002286.html explains why your letter to the InterActivist Network was both advisable and linguistically frivolous.

After all, if you do not vigorously defend your perceived rights, they might be curtailed and diminished. Stealthy attempts to steal the fruits of your work should be countered with lawyers and a resolve of steel.The thing that makes me a bit sad, though, is that in Microprose's 1987 release "F19 Stealth Fighter," they brazenly used your word - in a context you never used it for, to my knowledge (stealth technology in the sense of radar-defeating military grade airplanes being a bit beyond the realm of air conditioners and insurance what-have-yous) - and made a huge hit. The game I discover was by famed game designer Sid Meier, and was released for the Commodore 64, 128, and later re-released under a different name when the designation of the real USAF stealth fighter became known, the F-117A (Nighthawk). I can't imagine why I grew up playing that game, and not on a Stoller-licensed F19 Stealth (tm) game. Perhaps because stealth is a generic adjective, not a proper trademark at all, in the field of hard-to-detect aircraft?

Still, this all makes me sad, and I wish you nothing but the best. Oh, and have you looked into the portable reference electrodes known as Stelth?

Flippantly yours, &cetera.
===================================

I tried sending the above to leo@rentamark.com, but I don't think it went through.

On confirmation: in theory. 4th of July commentary.

2005-07-04T10:39:00.000-04:00

Hi, sports fans.

I read in the NYT under Overview, an article titled "Senators Clash on Questioning a Court Nominee," By CARL HULSE and ADAM NAGOURNEY, Published: July 4, 2005... [link not provided because hey, if it's not going to be freely available, why link to the NYT?]

The Senators are staking out their positions.

Schumer says "All questions are legitimate." "What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time."

Sessions responds that (quote from article begins) the push for such detailed positions was highly objectionable and suggested that Democrats might be forming a strategy of trying to derail a nomination on the ground of withholding information. "You cannot ask a judge to prejudge a specific matter," Mr. Sessions said. (end article quote).

Now, these two Senators are talking right past each other.

The views of judges on matters of jurisprudence cannot possibly be beyond the reach of Senatorial inquiry. The prejudging of specific matters, it is fairly clear, is not one of the areas reached by Senators' questions. You can't ask, "If Bush v. Gore reoccurs in Florida state court in 2008, how would you vote then?" You can ask for analysis, criticism, or reaction about Bush v. Gore (2000), as you can of Brown v. Board, Roe v. Wade, and the nominee is free to answer or deflect the question ("I would vote to uphold the law of the land"/ "I cannot say without knowing more about the facts of the case in the controversy at hand" / "What do you really mean by your question, Senator? How can I answer in a way that doesn't blacklist me, because I personally disfavor abortion, based on my religious scruples...") as they see fit.

Mr. Session's observation is remarkably obvious: the Democrats are, indeed, positioning themselves to be able to properly bork (by which I mean, honorably reject a flawed candidate) a nominee who is not prepared to honestly answer questions in ways that stand up to scrutiny. As a sage philosopher once said, "Duh."

Judge Bork, with due respect to a smart man, was a raving loony. What decisions did he favor overturning? Not just Roe v. Wade, I mean what else? How far beyond the pale was that extremist? Bork was Borked, you may recall, by moderate Republicans, moderate Democrats, liberal Democrats, and, I fervently hope, everyone else in the Senate who knew that this jerk should never have been seriously considered, let alone nominated.

Bork's a self-made martyr, an uncooperative zealot who would not have been a good Justice. I'm willing to hear different, and I'd be willing to hear him speak his side or debate his position, but I'm tired of hearing about him as an example of, well, anything.

"The Democrats started it" - please. Fortas was probably disqualified by the ethical accusations - as should Clarence Thomas have been, his intellect aside - but the borking began long before Bork. And it wasn't "the Democrats" or "the Republicans," necessarily. Democratic nominees were blocked, black judges were rejected on the basis of race plus politics (Senator Helms, I'm thinking of you), and this is an old, old game. Look back to the acrimony in the 1790s. It's an American tradition.

In theory, I'd love to have the most able, brilliant, compassionate, deft, eloquent, fair (I'm done with the alphabetical list now) and generally outstanding Supreme Court nominee possible. In practice, we'll get whoever's highest on the President's list who is confirmable. May that approach as closely as possible the person whose qualifications I described.

Happy Fourth of July to you all, happy Filipino-American friendship day to readers in or from the Philippines, happy anniversary of Alice's Adventures in Wonderland by the Rev. Charles Lutwidge Dodgson (aka Lewis Carroll) - see also This Page at Wikipedia (July 4), This Day in History at the history channel, and of course my favorite Scope Systems (not to be confused with Snopes), with AnyDay in History, which for today's date (whatever it may be when you read this) is here. I'm not sure what Scopesys does, but they have a webpage here. They've been maintaining the AnyDay page for years and years, and so a shout out to them.

Happy Independence Day, America.

Blogs worth noting

2005-07-03T19:41:00.000-04:00

[updated and bumped]

Blog review #1

This post is a place to hold reviews of certain blogs. There may be older/better/more interesting blog, but I like the assignment: investigate a blog, consider it, weigh it, and blog about it. With an arbitrary ranking on a scale from 12 to W.

Magic Cookie (see, it pays to comment). A prelaw blog, tagging itself as "prelaw stories with a healthy dose of nonsense." The proprietor and main contributor, Chickenmagazine is a software-developer turned 1L heading to HLS. It's not uncommon to see Harvard student bloggers, see the previous Most Famous HLS student blogger (not that he's less known, but he's dealing with summertime and NYC and, perhaps, the Bar exam now), but I don't remember the last time I saw a blogger who hadn't even arrived there. Good luck!

The blog itself has lots of book reviews, musings on words, and reflections on entering law school. Godspeed, chickenmagazine.

Arbitrary ranking: M, although a vote of 17 was also considered.

Kip Esquire. A stitch in time saves nine, but haste makes waste. An excellent pairing of opposed aphorisms; I like, "Absence makes the heart grow fonder, but familiarity breeds contempt." Kip Esq. is a libertarian (he says so himself), and in his own words is "a lawyer who doesn't practice, an investment banker who does no deals, an academic who doesn't teach, and a policy wonk who belongs to no think tank. He's 38 and lives in NYC." I like the threaded nature of the posts; each one refers to the previous ones in its own category. A feature of powerblogs, I surmise. He also makes his blog categories easily searchable via a list on the right hand side; this is an excellent idea, again possibly a powerline thing, and I've seen such categorizing done slightly less well on, for example, Evan's blog and Jeremy's weblog. This is the best way to do it: on the front page, no-clicks to get to it, simple and clear descriptions. Good one.

I like Kip's insightful and occasionally biting posts on gay rights; his post here fairly drips with scorn for CA Atty. Gen. Bill Lockyer, and makes the excellent point, "Which do you think gays would prefer -- a prompt 'no' or a delayed 'yes'?" This makes quick work of the usual and utterly tired tripe about a prompt, but not necessarily favorable, response being owed. Thanks for the speedy service, too bad you screwed me, have a nice day? I think not.

I think Kip's post on the O'Connor resignation aftermath is fascinating. I can't believe anyone was stupid enough to suggest that O'Connor can't decide when she wants to step down (time of her choosing, when the Court's not in session - as has become standard practice) on the ground that it "strips the President of his power to make a recess appointment." The main reason this is idiocy is that her timing and phrasing (I step down, as soon as my replacement is confirmed) follows her duties to the Court and the country, and the President still _can_ make a recess appointment. He just can't do it until there's a vacancy to fill, and he apparently won't have a vacancy while the Senate is not in session. He doesn't lack the _power_, he's going to lack the _opportunity_. Kip's right, and the person who suggested it is, in my opinion, foolish. Good post, Kip, and I'll be checking back.

Arbitrary ranking: Q.

White Collar Crime Prof Blog (is it one adjective and four nouns? or one noun and four adjectives?). In any case, it's Peter J. Hanning and Ellen S. Podger's blawg, one of the members of the Law Prof Blog Network (I prefer the term Prawf, for lAW PR[o]F, but I suppose one could be too cutesy, couldn't one?), and they have a neat summary of the significant cases in which O'Connor's participation, and thus departure, are of note to White Collar Criminal Law afficionados. Court-watching is ever so much fun to us Judiciary Groupies, and so it's nice that Peter and Ellen are helping out with commentary that'll give us outsiders and observers more to chew on.

Arbitrary ranking: B+.

Crime and Federalism, starring Mike, Norm, and a parade of horribles. Court news and opinions are their bread and butter; federalism (meaning limited federal power, and preserving some state powers- like, the ones that are supposed to be in this our federal system) and crime are the subjects. This blog is always on the ball, thanks to the rapid-response efforts of the "recent law school graduate, and experienced criminal defense/civil rights attorney" (the aforementioned Mike and Norm) who co-blog at C & F.

Crime and Federalism has a great variety: recent decisions and why they matter; other legal developments in the news; discussions of judicial philosophy (one of my favorite topics, as you may gather); and occasionally, posts from the field with absolutely grabby titles (see, e.g. Is Masturbation relevant).

Mike and Norm are nice fellows, as we know from their generous and thoughtful comments to your host, and I look forward to reading them in the future.

Arbitrary ranking: C and F.

Ninomania. A fellow blogspotter. I stole his blawg title to make a point, in Ninomania this isn't. Ninomania is Prof. David Wagner's blog, out of the Regent Univ. School of Law, but it "does not reflect the views of Justice Scalia, who doesn't know me from Adam, or of Regent University, which does but is not such a schlemiel as to take responsibility for my views. " Funny stuff.

While I can't, as I may have indicated, sign onto the Ninomania agenda (whatever it might be... and can you imagine it not being sinister? :) ), I do appreciate the clever and informed commentary. See, for example, Kelo: O'Connormania, for an implicit admission that "Our Hero" is sometimes on the wrong side of a decision, and a paean to O'Connor's reasoning in that case, not to mention Thomas', which I have admired as well.

David's a bit of a non-liberal, but I'm sure that it would still be pleasant to chat with him; he's clearly a thoughtful guy. So long as he doesn't call me a member of the Death-Left, of course. What is that, anyway? I don't support capital punishment in practice at all, and very seldom even in theory; I think abortions should be disfavored- or at least not used instead of the other forms of contraception, which should be freely available and universally taught and encouraged in the public schools, starting early, at... well, after conception, anyway. Or rather, before it. You know what I mean (I hope). But, personally, I think the morning-after pill isn't abortion. Not even close. Contraception includes, in my mind, preventing implantation in the uterine wall. If you disagree with me on that... are you a doctor? Or are we talking pure faith here?

Arbitrary ranking: N.

To be posted as time permits:

Reviews of the other bloggers who have left comments.

[note: arbitrary really means it. If I were an administrative agency, I would _flunk_ APA § 706(2) review here.]

A letter to Oyez: O'Connor's legal philosophy

2005-07-01T18:01:00.000-04:00

(I said I hate crossposting, see my post regarding my Guest Post at Evan's blawg (available here), but this e-mail was too good not to put up for folks to read and/or respond to)

To: Oyez
Re: Sandra Day O'Connor biography, available at http://www.oyez.org/oyez/resource/legal_entity/102/biography

Hi,

I don't mean to bug you, you must be busy -

Reading the Oyez page on O'Connor's biography (nice, well done, interesting and informative), I was struck by your "difficult to define" language about her core legal philosophy. I know that this is received wisdom of the legal academy, but I can't help but find it wrong.

Just as Thomas's legal philosophy could be summed up in three short propositions:

1) the text governs. if the text is mistaken, stick with the text; it can be corrected. if the text is ambiguous, check the structure of the whole. If the prior understanding of the text is mistaken or ahistorical, correct it.

2) original intent governs, and if current practice or understanding is inconsistent with original intent, it should be overruled.

3) stare decisis should be applied to cases that are rightly decided, and not for cases which are not.

[#3 is like the modified agency deference standard, whereby an agency's correctly reasoned decision will be upheld and a wrongly reasoned one won't- which is to say, absolutely no deference whatsoever, but it makes them feel better if their decision is upheld.]

[#3 is also implicit in #1 and #2.]

Similarly, Justice O'Connor's precepts could be summarized in, I would guess, no more than three axioms.

One would be, Each case is to be decided under the facts and circumstances presented by the controversy itself.

Number two would be, Neither the expectations of society nor the impact upon all present and future parties may be disregarded by an honorable judge.

And number three might be something like, The clear words of text should govern, unless they are not clear due to the clearly expressed intent of the legislature, and neither superficially clear words nor expressed intent may overrule the demands, explicit and implicit, of the Constitution, as correctly understood.

Her views on the effect of consensus, national or international, are not, I would guess, part of the axioms, except insofar as they inform #3.

I hope this was interesting or useful.

Regards,

Eh Nonymous

[update: I notice from this article by Steve France that Sunstein had already commented on "the theory of no theory" that he called Minimalism, and praised O'Connor for holding it. I see also from that article that Posner warned that such so-called minimalism could lend cover for wedge decisions, such as in Romer v. Evans (now overruled). Now, I thought that most wedge-decision-producing cases were brought strategically as a way of accomplishing social change; I _want_ those to be decided minimally, but compassionately, and yet with attention to the structure and text of the Constitution, but also some leeriness of applying original intent, but also without going overboard for softheartedness for individuals, states, or the Federal Government, etc. etc.

I also note that Posner uses the Sounds-Good style of Judicial Pragmatism, see generally Howard's questions for Judge Posner in his 20 Questions series, "20 Questions for Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit," published in December, 2003. Pragmatism, as I say, sounds great, but I worry that a judge could be too pragmatic and lose sight of certain fundamental, and in my view irreplaceable, aspects of judging: doing the hard thing, forcing the powerful to lose just as the weak sometimes must, coming up with the distasteful but correct solution, and wrestling with the difficult. Judge Posner makes it look easy, and he's a very very bright man. I'm just not as confident as he is that he's always right. Still, he doesn't get reversed much. It's hard to reverse what you either can't argue with, or don't want to. So, point in his favor.]

O'Connor's out

2005-07-01T11:53:00.000-04:00

Justice Sandra Day O'Connor, having served for 24 years on the Supreme Court of the United States, resigned this morning, July 1, 2005, setting off a summer of controversy over President George W. Bush's nomination to replace her. Howard Bashman has collected news links at How Appealing; check SCOTUS blog and, well, every other form of media known to humanity for more.

Justice O'Connor's biography at findlaw, here, lists her prior positions, including Maricopa County (Phoenix, AZ) Superior Court, Arizona State Senator (including Senate Majority leader from '73 to '74). She was also a member of Order of the Coif and was on Stanford Law Review's editorial board.

She served as Assistant Attorney General for the state of Arizona, from 1965-69.

These positions gave her a rather different background than most of her colleagues on the bench; few were state court judges, and only two others were state attorneys general or assistant state AGs: David H. Souter, who was Attorney General of New Hampshire, as well as an Associate Justice of the NH Supreme Court; and Clarence Thomas, who was assistant AG of Missouri. Most importantly, she was a trial judge, giving her a very different experience from those of her fellow Justices who had been in the practice of law, taught law, been in government, or been appellate judges only before their elevation to the high court.

Justice O'Connor's joining of, and sometimes carefully circumscribed concurrences to, 5-4 majorities gave her a powerful position as the least predictable, most "swing" vote of the Court for many years. The law of the land might have been what the majority decided, but if only four votes stood for a broad proposition and O'Connor's qualified "yes" was the fifth, then her opinion was the holding of the case, the narrowest most limited statement of what the case stood for. [Note: No, I do *not* mean to write "for which the case stood." It's awkward, it's unnecessary, and it is in no wise more grammatical. The idea of outlawing propositions that dangle is a recent invention having no place in modern English language and routinely violated by all writers, from the worst to the very best. Any rule flouted the paragons of English writing, not just for effect but routinely, and with no loss of comprehension is not a rule at all, not even a suggestion. Analogously, see Language Log on obligatorily split infinitives, and again here.]

Since Justice O'Connor decided each case, she said, on the facts and circumstances of that controversy as it arose, rather than having absolute and fixed and unalterable opinions on The Law which would be applied without fail to the case before her, however unreasonable or cruel the outcome (cf. Clarence Thomas, a man of such rigid rectitude that he has almost never changed his mind at oral argument; a very brilliant man, but not one given to waffling), she was often likely to vote one way in one case and the reverse in the next. This gave her unpredictability, as noted above, but also opened her to accusations of inconsistency, particularly from Justice Scalia. Since O'Connor's pole star and guiding mantra was "decide each case on its facts, not on one's prejudices or on a set of facts not before us," she was in her own way just as principled, just as fixed as Justice Thomas. Predictability of results is no virtue when the outcomes are *bad*, I would argue. Justice Thomas does not concern himself as much with the moral values of positions, more on their legal justification. It is hard to fault him for doing so, but I admire Justice O'Connor's attention to and praise of judging with attention to morality. By this I most definitely do not mean the position of the Scalia dissent in Lawrence, which was a model of biased judging (in response, I can only suppose, to what he perceived as similarly unprincipled reasoning).

Judging that takes into account the effects on society is no more active than is judging with utter disregard for the outcomes. It is merely that the one can be attacked as unethical, while the other can certainly be criticized as immoral.

I welcome comments, as usual. Civilized ones only; rants will be punished by means so fiendish and violent I shudder to contemplate them.

Why I've got to stop reading Volokh Conspiracy

2005-06-30T21:59:00.000-04:00

No, not some new thriller by a Dan Brown knockoff, say perhaps Dan Brown. (aside - see Language Log, "Renowned author Dan Brown staggered through his formulaic opening sentence", which is a real hoot and will give you ammunition if you're a literary snob. Which you wouldn't have to be, to read this blawg, but it doesn't hurt)

I've got to stop visiting Volokh.com, because while I highly respect Eugene and Randy and Orin-not-Orrin, sometimes (whisper) conservatives (/w) post there. Not Juan the not-Volokh (jnov to friends), although his recent flamebattle with a certain liberal blogger drew some attention, see generally volokh and mr. leiter's web site, but other folks.

You know. The *conservatives*. Although they may not call themselves that.

Similarly, although Prof. Bainbridge is a really bright guy, and sure knows his wines better than I ever will, and although Ann Althouse is a lovely lady who clearly has the undying respect of Glenn Reynolds, I can't read them regularly. They're just so... so wrong. You know?

Not on everything. Not even on everything political. Only when their opinions, fueled by their intellects and experience, are... in my view... so utterly overwhelmed by prejudice against liberals, liberalism, liberty, and libras (i'm reaching here) that they just lash out. I'm almost doing the same thing, right now, in reverse. But I'm trying not to rant.

I write this non-rant because I am avoiding posting the rant I wrote against Mr. Zywicki, new trustee at Dartmouth (bully for him), in part because he didn't enable comments. I mean, not ranting about the comments-disabling itself, about something I was disabled from commenting on, both at Dartblog and at VC.

1. Trustee Rodgers, clearly a businessman, let loose with the brilliant comment that "If I ran this company like the government runs Social Security..." he'd be out of business. I may be paraphrasing. So be it. I wanted to leave a sarcastic but civil comment. But there were no comments allowed, in either place. So I started to write a letter to Mr. Zywicki (that name keeps getting harder to spell; can I call him Todd? Todd it is) that started out sarcastic and got worse and worse as it went along. So I shelved it.

Eh Nonymous' famous anonymous advice on e-mail e-tiquette, #1: Never e-mail angry. Corollary: don't comment while angry, don't blog angry. Shelve it, do what you'd do if given the phone while in a rage. Don't make the call. Would you want your peers to see you raging this way? Your mother? Let it cool off, save the draft, walk away, do something else. (Also see Bill Murray, Groundhog Day, to the Groundhog, Phil: "Don't drive angry.")

It's still saved, that angry draft. But why pick on Todd for something I disagree with that he didn't say, and merely quoted (perhaps approvingly)? It's not his fault I disagree with Todd's position, and think that the comment was a dumb one. It's more witty and wrong than dumb, anyway.

2. Todd comes out with something quoting a source to the effect that 70% of Americans wouldn't mind if we put up the 10 Commandments in Government buildings, essentially endorsing them. Because they wouldn't feel it was bad, not against their own touchstone of establishment, I suppose. What I should do is quote O'Connor, "we do not count heads" to determine the meaning of the Constitution, or something like that. I think that was what made Scalia snap back something about counting Heads of State in Europe over the death penalty, but that's not the point. The point is, she's right. I went off on a long rant about establishment and free exercise and Christian oppression of the rest of us, and monotheism and what it does and doesn't imply, and the statistic quoted above, and Scalia's statistic. On and on.

See rule #1, above. Upshot: I need to stop reading Volokh. Mostly tasty stuff, but the peppers are just too hot.

Possible correction: maybe I should spend less time reading things online.

... nah...

Blogging the Scorecard: Which was the "Best" Circuit?

2005-06-28T06:41:00.000-04:00

[post updated and bumped up]

The 11th and the 6th, according to the scorecard produced by Goldstein & Howe, appellate boutique to the stars - or to the star court of the Federal system, the Supreme one.

The new scorecard, available now in a glossy but B&W pdf format, will surely be misinterpreted to say a few things it doesn't.

The circuits with a 1-0 report (1 case taken and affirmed, 0 "other") will be reported as "in-tune" with the Supreme Court, may be cited as "not Bad," and will otherwise come in for undue praise. C'mon, folks. This was one out of one. The sample size overall is small; the Supreme Court has not heard 100 cases in a long time. But one for one? This is not statistically significant.

The circuits that did best- those with fewer than twice as many "other" results (reversals, remands with instruction, disposal by means other than affirmances; this includes the very cool and known-by-initials D-I-G result, "Dismissed as Improvidently Granted," apparently known as "DIGging a case" by those who know) as they have affirmances will be hailed and feted.

Okay, the 6th and 11th circuits are pretty sharp. I like citing to them, myself.

But the sure thing is that the 9th will be nailed, and the results taken for other purposes (arguing for a split, etc.) far beyond the actual significance of the cases. Why?

The Ninth was the "most reversed." It also was the "most granted" for review; lots of cases come out of the (large, very populous, legally cutting-edge) Ninth Circuit. It's got California, for goodness' sake. The Supreme Court "others" more than it affirms. Sometimes the court below just got it wrong; then reversal without an opinion may be merited.

Sometimes a lower court will have a disagreement with other courts; then somebody's got to lose if the Supreme Court comes down one way or the other. The Ninth Circuit's losses have included this sort of thing, a circuit split that has to be resolved _one_ way or another. Circuits that generate lots of cases can produce lots of splits with other circuits; I could show you the figures. If you have a populous circuit and a sparsely populated circuit, guess which one will produce the most cases in a year? Which one is the latest circuit-splitting decision therefore likely to come from?

Sometimes, of course, the Supreme Court takes the bit in its teeth. Look at Grokster, just come down. The Supreme Court is carving new terrain. It's not unpredictable, or unpredicted, but the Circuits don't predict. The Circuits do their level best to apply the law, as handed down from on high, to the facts before them. The Supreme Court is not a general error-checker, most of its jurisdiction is discretionary (they can almost always choose to take a case or not, thanks to Congress' choices in setting its appellate and cert. jurisdiction).

Sometimes the Supreme Court makes new law. That is, it either fills in an area of common law previously undecided, or tackles a gnawing question of Constitutional law never before addressed, or it revisits an old but wrong decision.

When that happens, the Circuits tend to be "other"ed. Not affirmed, mostly reversed and told that the rules of the game have changed.

So what do we do with the Ninth?

Well, whether we split it or not, we should give them an award.

How about, "Most innovative"?

[update: There's a corrected scorecard now up, see the post titled Statistics, dated 3:31 p.m. at SCOTUS blog. It now shows the 11th and 6th, as I said, doing very well, with the 7th and Federal Circuits holding an undeserved tie for first place due to a 1-1 record. Also of interest in that post, links to the voting relationships, and the remaining numbers. The true "in-tune" Circuits are the 11th and 6th, with a 5-5 and 4-7 record respectively. Highly impressive; your opinions or at least judgments have been persuasive or ahead of the curve. To the 2nd and 10th Circuits, which had all of their appealed judgments reversed, vacated, or otherwise not affirmed, better luck next time. 0-2 and 0-3 are not really very bad; this is mostly luck of the draw we're talking here.]

For earlier coverage, see their First Draft of End-of-Term statistics. In the original statistics post, they gave credit to the Contributor who compiled the thing. That information is now missing. Offered: a reward to whoever knows who that was, if they post or email her name here. We wish to honor her with burnt sacrifice. The reward is that this blawg will show the fink, I mean winner, great honor and esteem, and possibly write a glowing review of them/their blog.]

Tom Cruise is a punchline

2005-06-27T23:34:00.000-04:00

We've seen it coming for some time now. This month, our favorite wacky sports agent, bartender, pimp (seen Risky Business?), fighter jock, secret agent, navy lawyer, and Scientologist kook said: "There is no such thing as a chemical imbalance."

Outstanding. He "knows the history of psychiatry" and he can tell it's a pseudo science. Rilly truly, Tom? You know all that? I know the history of Scientology, which you may or may not, O destroyer of accents: www.xenu.net, also known as Operation Clambake, studytech.org, www.lermanet.com, and oh so many others. Scientology is a fraud and a scam and lie and a multilevel marketing scheme. It's not that L. Ron Hubbard was a science fiction author; as you might have gathered, I'm a fan of some of those. No, it's that Elron (as he's known, dang his flabby black heart to heck) invented a religion on purpose, filled it with lies and nonsense, and then hid the fact to the true believers he suckered in. He even told everyone that was his goal; see the links above.

Anyway, here's my fervent wish for Tom. If he believes that the cleansing/healing/ pseudoscientific fixes that the Scientologists did to him (for big bucks, I would guess) permanently protect him from alleged chemical imbalances... prove it.

Let Tom Cruise be injected with a chemical, in a double blind test. One hypodermic contains a serotonin reuptake inhibitor, or better yet an upper. Another one, a downer. If he says that he feels the same afterwards as he did before, great. He's proven that he's either a liar or actually immune to chemical imbalances - we can check that, with a simple blood test. Although an MRI or some such might help too.

Or if he insists that it's just street drugs "messing him up," not really a biological effect caused by known agents that act on the chemical basis for human cognition and emotion... then ignore him. He's an idiot.

If you see a t-shirt that says "Free Katie!" I recommend you buy it. So long as the proceeds go to the Katie Holmes Legal Defense Fund for vulnerable and hoodwinked young women.

Time to overrule Brown

2005-06-27T20:54:00.000-04:00

Inflammatory enough title?

Brown should go. It was a huge decision, unfortunately watered down by the pathetic phrase in Brown II, "all deliberate speed," combined with the understandable but totally unacceptable campaign of massive resistance based in the South and grounded entirely on hatred of blacks - no matter what anyone else ever tells you, the South did not resist out of love - and note that segregation, discrimination, and racial hatred are not purely artifacts of the South, although I do not currently see any State Constitutions outside the South that still have relics of slavery in their provisions... Alabama, I'm looking at you now...

End of digression. Brown.

Time for it to go.

Why?

Because it was decided poorly, that's why. Just as Roe v. Wade suffers today not because the public isn't in favor of it- most Americans do not want what the American Taliban wants (make it illegal for a raped 13-year old to abort her four-months-gone fetus, because she didn't ask her rapist-stepfather for permission first - or even, make it illegal for her to do it without informing him, which would be as good as a death sentence for her, she knows, because of his prior threats... the American Taliban doesn't just hate women, children, and the poor. It hates people, and sex. Especially people who have sex) ... most Americans support the right of a competent woman to choose, in consultation with a doctor, whether to terminate, for example, unwanted pregnancies (or unwilling ones, in the case of rape, particularly incestuous rape), or pregnancies which will threaten her life, or pregnancies where the child is known to be acephalic, and thus have no hope ever of leading any life worth living.

But Brown, see... Brown still looks good, some ways. Not to Justice Thomas, of course, a favorite topic of mine. So what's the matter with Brown?

Look at the book "What Brown Should have Said" and read what they wrote. Look at the first opinion itself. Seriously, go look. I'll post links later if someone reminds me to.

Brown said, "separate educational facilities are inherently unequal." Brown v. Board of Education of Topeka, KS, 347 U.S. 483, 495 (1954). This may have seemed true at the time.

But the truth is, "unequal educational facilities are inherently separate." The rich will always go a long way to avoid a bad school, and the poor and immobile will always be stuck with one, until we make equal education the hallmark and touchstone of equality law. Equal participation. Equal books. Less reliance on local property taxes for local schools (it lets the rich - and that's most often the rich whites, not that this is a _race_ problem alone, it's also a class problem - buy their way to better local schools, and thus a better entree to society), and more statewide and federal money. If parents want to buy their kids better opportunities, let them lobby and fundraise for improved schools for all public school kids.

So make the schools equal, and white flight can end. Make equal social opportunities available, and watch racism dry up as a weed without water or light.

Brown's wrong because a well-funded, well-supported all-Black school is a fine thing, and so is an all-white under certain circumstances. Here I'm thinking places like Minnesota or South Dakota, where it's not just a paucity of ethnic minorities [as defined by nationwide demographics], but that even certain flavors of white Christians are rare, because it's such a homogeous place. Segregation's not the problem, inequality is. If everyplace had equal facilities, who'd care if a particular group wanted to go off and live alone?

Reasons why segregation is still a problem in a future post - when I feel like it.

Why Scrapple Face isn't worth reading

2005-06-27T20:50:00.000-04:00

Of course, a line like that asks for explanation.

ScrappleFace had potential. It has a following. That's why I'm not linking to it. Why bother? Type scrapple into google and hit I'm Feeling Lucky. Unless something has changed, you're already there.

Scrapple (for short, I'll call it) still has some edge. I liked one article they did, not two months ago.

But willingness to say horrible things is not enough; humor takes more than that. The Onion has tried to learn this, but years and years and years of repetition have made it hard for the Onion to do best what it used to do: being absolutely, horrifyingly, gut-wrenchingly funny.

Scrapple's problem is simple: bias is funny to a point, and then it stops being funny.

Scrapple was hard-hitting and honest when it took a moment out to mourn Terri Schiavo. Misplaced, I think, because real live people with fully functioning cortexes are being killed all the time, sometimes even by our government, sometimes even unjustly. Terri has been dead for a long, long time. Her body finally shut down, when her long-suffering husband got final permission from the micromanaging state of Florida and his dead wife's meddling (but perhaps well-intentioned and loving) family ... sort of... in that they declined, after years of litigation and multiple repeated denials from the courts, to take the law into their own hands and kidnap the corpse of Terri Schiavo....

But Scrapple's not funny when it's just wailing on liberals, for no reason. Why? Because they contradict themselves.

Check this out.

LEAK: Durbin apology draft differs from final version. Link's here. Now, certain conservatives bemoaned Sen. Durbin's scathing critique of American torture, which likened the practices that FBI observers wrote about to Nazi concentration camps and Stalin's gulags. Sort of. I mean, he actually quoted the observers' reports, and then said, essentially, "Wouldn't you believe it, if I told you that this had come out of those other repositories of horror, those sources of inhumanity and murder and torture?" This was bad stuff, folks. Not frat pranks, not light stuff. This is when people go into cells and never come out again, when they die because of stress positions that constrict their bodies and allow blood clots to travel to their hearts, when they are permanently damaged forever if the interrogator doesn't like them. This is very, very bad stuff, in case you aren't aware of what's been reported.

Now, Dick Durbin talked about all this stuff out loud, and said it was bad. Conservatives, and again I stress only some of them, interpreted this talking and criticism as bad. It put our troops at risk, they said. Why, read Scrapple:

Durbin: "I'm also sorry if anything I said in any way cast a negative light on our fine men and women in the military."First Draft: "I might as well be on staff at Al Jazeera. What a windfall I produced for the recruiting department at Al Qaeda. At least an improvised explosive device can only harm in one place at a time. My words endangered our troops everywhere, all at once. My apology may mend political fences, but it can't heal lacerations and burns."

Now, a less cynical person might point out that it wasn't Dicky boy's words that endangered the troops, it was the torturer's. But, let's take Scrapple at their words. Durbin endangered the troops, by talking about the torture our folks committed.

Just a little further back in the archives, we find this:

Clinton: Gitmo Horror Could Spark Muslim Brutality
by Scott Ott
(2005-06-20) -- Former President Bill Clinton today said that if the scandal-plagued terrorist detention facility at Guantánamo Bay isn't "cleaned up or closed down" then insurgents in Iraq may resort to killing Iraqis, and could even begin attacking U.S. troops.

Now, call me a fish if I'm wrong, but isn't this Scott Ott, famed proprieter and writer for Scrapple, mocking Bill Clinton for his comments about the repercussions from the torture at Guantanamo? This little piece, available at this link, takes the former President to task for arguing that our troops might be endangered by our little torture operation.

"If the United States gets a reputation in the Muslim world of mistreating terrorist prisoners," said Mr. Clinton, "It could unleash what sociologists call 'the righteous brutality of the oppressed' among the normally-peaceful followers of Islam."

Now, call me hypocritical, but I think Scrapple's wrong. I think that our legal and political and military leaders have made a dreadful error in condoning and permitting and encouraging and directing torture. I think they have cost us, not in credibility or prestige, but in American lives. Who would you be more willing to kidnap and murder: the Swiss, or the Nazis? Well, look at us: we're not the Swiss anymore. We are not all of us Nazis, but we no longer are the country that doesn't torture. Heck, we can't even be the country that admits to torture. We're the country that gets caught doing torture, tries to hush it up, lies about it, smears the people who talk about it, and then waxes nationalist about the whole problem. God save us.

But, contrariwise, I also think Scrapple is wrong. We should be talking about torture, and we should be condemning it, because publicizing the details cannot be as bad as not publicizing the details to condemn them.

Slacktivist, as usual, has some excellent points on this whole theme (Image is Everything, Jun. 22, 2005, and the inspiration for my post as well).

Ninomania this isn't

2005-06-27T19:17:00.000-04:00

Hey there, sports fans.

As a direct and proximate result of scanning the decisions in this past March's big Supreme Court decision on the ADEA (age discrimination in employment act) and whether it authorizes so-called 'disparate impact claims' (it does, but that didn't help the plaintiffs; their complaint was held not to state a claim for such disparate impact discrimination), I have come to a further conclusion:

I like the way Thomas votes a lot of the time, because he's principled. In Smith v. City of Jackson, Miss., 125 S.Ct. 1536, ___US ____, (Mar. 30, 2005), which split 5-3 [edit: sort of, see below in brackets] (one justice recused, the Chief), Justice Scalia ~~sided with the majority,~~ [edit: Justice Scalia wrote the primary concurrence, which gave the parts he joined, but which the other Justices did not, the force of law with a 5-3 majority; blog policy will be to visibly correct errors while preserving them for posterity, and inserting corrections in brackets or bold or both as needed], not because he really agreed that these uppity plaintiff types should be able to state a claim for disparate impact (he doesn't buy it) but because he'd rather defer.

Justice Scalia is a big fan of deference. How can we have "small government," meaning apparently a small, inactive judiciary, if we don't let government get away with whatever it wants? [A brief pause while I consider the artistry and depth of what I just wrote]

Anyhoo, if an agency wants to violate constitutional rights, you can guess that Scalia will tromp on it, unless he happens to think that the right doesn't or shouldn't exist. So we see the Executive department getting curtailed when it argues that certain things within its purview are entirely beyond the jurisdiction of any federal court to even hear, and we see the Supreme Court politely disagreeing. Scalia would not be a likely vote in favor of a given terrorist suspect, but he has no love for utterly untrammeled Executive authority. Point for him.

But in Smith, as I just said, Scalia found a "classic case for agency deference," in this case to the E.E.O.C.

Back to Thomas (you remember I started with him). He didn't write ~~the dissent~~ the second concurrence in that case, or at least it's not his name on it; he joined O'Connor's dissent, along with Justice Kennedy. It's a marvelous opinion and I urge you all to read it.

In this opinion, which I remind you Thomas is joining, the ~~dissent~~ opinion (per O'Connor) slams Scalia for being a pushover. Do I exaggerate?

See for yourself (text thanks to findlaw; case summary available at oyez and from nat'l school bd. ass'n). The dissent [I give up: I'm going to stop putting strikethroughs where I wrote 'dissent'; please take it as given that all participating Justices concurred in the result] in part B of its section III quotes Scalia's "classic case for" line, and replies, "I disagree." Pow! - another judicial bench-slap, as A3G might write.

Deference is fine, but there's a time and a place for it:
When an agency interpretation of a statute is reasonable (can't be irrational, etc.) and when statutory language is ambiguous (can't be clearly contrary to the interpretation), and the agency must have authority to interpret that statute. For my money, Scalia's all too ready to lay down anytime an agency interpretation is one he can sign onto. Other justices are more skeptical; they'll overrule even a plausible-sounding interpretation when it's actually wrong, or when it's contrary to what they see as the clear meaning of the statute (always up for grabs) or when they think the agency's interpretation is not really an authorized one.

Me, I support some particular agency actions, hate others, and often wish for stricter judicial scrutiny of what I believe are pretextual reasons for such action, particularly post-hoc reasons. If government can't explain what it's doing, and why it should be doing it, and the action is not in fact authorized, I can't imagine why we should let it do it. "Making stuff up after the fact" is well and good for mankind in general ("Man is not a rational animal, he is a rationalizing animal." - Heinlein) but is a no-good way to run a country.

Summary:
Another Thomas vote against a Scalia position, another piece of evidence he's no push-over, no puppet, no intellectual midget, no right-wing bot, no clone of anyone else on the court. Thomas votes them as he sees them.

A salute to O'Connor for a nice piece of legislative analysis, and a tip of the hat in respect to Thomas, one of the Brightest Supreme Court Justices You'll Ever Meet, and the youngest on the bench. No insult to other, older, and also very very bright justices intended, of course.

And that's the way it is.

[comment on the edit: I shall feel free to correct typos, errors of style, my own word choice, and errors of prudence and/or civility without necessarily preserving them; I shall note when I make substantive changes; please speak up in the comments or by email to unused and unusable (all one word) at gmail if you see changes necessary for accuracy or fairness.]

[further update: I note that, based on an old district court's reading, I am persuaded that at at least at one point, it was evident that Congress intended to allow liability under the ADEA because of its two-tiered structure for damages. "Congress clearly intended to create a two-tiered liability system in the ADEA. Thurston, 469 U.S. at ----, 105 S.Ct. at 624-25. Acts which are intentional are subjected to double damages. If the ADEA reached only to intentional acts, all violations would be subjected to double damages and there would be no two-tiered system." E.E.O.C. v.Gov. Mifflin Sch. Dist, 623 F. Supp. 734 (E.D. Pa. 1985). Now, I'd have to go back and actually read the Smith majority to figure out if that's what persuaded them, but the district court opinion seems slam-dunk to me, read the whole thing if you have access to it.

Remaining mystery: what was the majority's reasoning? For the answer... read the whole thing.]

Depressed? Why, his dog had died.

2005-06-23T18:15:00.000-04:00

Via Howard Bashman, I read in this California Supreme Court opinion (available, for now, here), People v. Joseph Kenneth Sorden, Super Ct. No. SC050781, that the defendant tried to defend a prosecution for willful failure to re-register annually as a sex offender by claiming depression.

Now, I'm of mixed feelings about lifetime registration requirements; I wonder if sometimes they're overbroad. This fella, guilty though he was adjudicated back in 1983, still goes through life with this around his neck. He served his time. He hasn't, as far as I can tell, been a repeat offender.

In any case: the defense involved, among other things, a proffer of evidence that:

His mother had cancer;
the mother of his son, in order to terminate his visitation rights, had falsely accused him of being abusive to the boy;
he had broken up with his girlfriend; and
his dog had died.

Now, I feel additionally sorry for the guy, he had a rough few weeks, it looks like. Since registration is to take place within five days of his birthday, and he neglected to do it until almost two weeks after that- almost Christmastime- when he says he "woke up and was stunned that he had failed to do it" - he was definitely late. But look at what happened!

This man is a country song waiting to happen!

Apologies to the defendant, his victim, the state of California, and my readers, who don't deserve this kind of abuse.

One for the casebooks: Promised a 100 Grand, gets a candy bar

2005-06-23T18:04:00.000-04:00

Link via Fark.com.

http://abcnews.go.com/US/wireStory?id=874653

A lady listens to a radio station for two hours, wins first prize by being the tenth caller, and then when she comes in to claim her "100 grand" she is first turned away, then later told that the prize was not $100,000 U.S., but a candy bar, approximate value $1 (my estimate). Maybe $2.

Now, the wording quoted in the abc news story,

a contest to "win 100 grand."

is entirely consistent with the possibility that she was actually lied to, not misled.

My favorite quote of the story, though, is this:

Later, he offered her $5,000, Gill said.

"I said I wanted $95,000 more," she said. "Nobody would watch and listen for two hours for a candy bar.

Ah, but someone would listen for two hours for $5,000. In fact, that's right gracious of him, if he didn't owe her anything (a matter for the parties and/or a court and/or a jury to decide).

I notice the story says stations have been fined for "false, misleading or deceptive" contests and prizes "and that stations must conduct contests as advertised. Stations in two other states have been fined for contests that told listeners they'd won cash prizes without specifying they were in Italian or Turkish lira, not U.S. dollars."

So it's good that someone is paying attention to this dastardly fleecing of America- oh, wait, no, by this dastardly advertising stunt that harms practically no-one.

The harm in this case: the woman had promised her children, 1, 5, and 11 that they'd get a minivan, a house with a yard, etc. etc. Her dreams were dashed. But at least she had dreams of ~~winning~~ having won $100k for essentially nothing, for almost a day.

Wahoo! Allapattah came down the right way!

2005-06-23T10:35:00.000-04:00

According to the invaluable SCOTUS Blog, not to be confused with a blog about John Duns Scotus, q.v., the consolidated cases of Exxon Corp. v. Allapattah Services (04-70) and Ortega v. Star-Kist Foods (04-79) were just decided:

If one member of a class satisfies the amount in controversy requirement (currently in excess of $75,000 for diversity jurisdiction) then the class is deemed to satisfy the amount, even if the claims of others are for less, in some cases far less, than $75,000.

This result is plainly right.

If you have, for example, fourteen people with injuries of $74,000, they might not be able to get into federal court on diversity unless they can aggregate the claims.

If, in contrast, you have ninety thousand people with claims that vary from $10 on up to $150,000, it doesn't make any sense to be able to get justice for those with claims from $75,000.01 on up in a class action, while excluding those with claims just under $75,000. Class actions, when permitted by law, are supposed to ease the burden on plaintiffs and defendants alike by allowing claims to be decided together, in a single trial or series of trials, rather than by depending on piecemeal and widely dispersed actions. There's potentially no federal forum for a person with an injury of $100, or $60,000, unless you can get in together with someone who was injured more than you were.

I'm willing to hear dissenting views. Overlawyered and class action defense counsel, I'm looking at you.

Scalia for Pope

2005-06-20T07:51:00.000-04:00

Just in case nobody had ever said it before, I want to be on record.

Typing the words Scalia for Chief Justice into google produces lots of results. 227,000, to be precise. Of course, that wasn't a phrase in quotes. Still, it brought back both news results and other webpages.

Typing in the quoted phrase "Scalia for pope" produced 0 ghits. Language Log may have helped popularize "ghits" for google hits; Mark Liberman ascribes the coinage to Trevor, who blogs at Oreneta.com using a blog name that defies easy categorization by me, see for yourself, but I don't know what to think. I just use the coinage. (followup: I think Mark is wrong, since a brief review of search results at the oreneta blog produces further attribution to other persons. Whatever)

My rationale is Scalia's own stated (joking) preference, reported in the WashPo by Charles Lane in an article on the Chief Justice's most recent clerk reunion. For what it's worth, I too would prefer that he be the Pope than be Chief Justice. Then his evident dislike for homosexuals, fornicators, and illict drug-users could be put into policy directly, rather than smuggled in through originalist readings, plain text readings, arguments from stare decisis and history (they hated gays in the 1770s! Oh, wait, they didn't, since homosexuality didn't exist in its current form, culturally speaking), and naked power grabs that contravene federalism, the structure of our republic, and the Constitution.

Unfortunately, his dislike for filthy hippies and flag-burners would necessarily go to the back burner. Not only can you not rule against them as Pope (he was forced by his conscience to rule in favor of flag burners, he says. But not those medical marijuana users!), you might even have to forgive them, bless them, and love them as fellow creations of God. Rather than, say, let them be put to death.

Sorry, I'm a bit disgruntled.

Also, hello to Language Log readers who might have followed the link from this LL post.

Anti-Gay activists, God Love them.

2005-06-19T08:02:00.002-04:00

After reading the 6/19/2005 NYT Magazine article on gay marriage opposition ("What's Their Real Problem With Gay Marriage? (It's the Gay Part)" by Russell Shorto, temporarily available at http://www.nytimes.com/2005/06/19/magazine/19ANTIGAY.html?pagewanted=all, free registration req'd, I'm going to have to find a way to abbreviate that), I had to respond.

First of all, the article's title is clearly right (never say clearly, you're always wrong when you do). Gay Marriage Opponents are, almost without exception, Gay Opponents. It's not that their marriage is threatened, or their society, or their sanity, by others' marriage. Their etceteras are threatened, in their view, by the acceptance and permissive attitudes towards gays that foster this evil, sinful, God-damned lifestyle. It's a choice, remember, no matter how stupid that position sounds. Hate the sinner, love the sin- wait, that's not how they say it. Oh, right, it's supposed to be hate the sin, love the sinner. Well, these folks hate the sin, and they don't much like the sinners who insist they're not sinning at all. Why, it's prideful, arguing that they know for theirselves what God created them to be, how they should love, who they should marry, and so on. They should burn in hell, the queers, think these imaginary bigots I'm picturing.

I know people who will, with a straight face (pun intended, sort of) that the "dignity of the institution of marriage- straight marriage" is indeed at risk. I suppose you could believe it. Society's being threatened by these undermining anarchic free-love non-monogamous queers, and here are some of them now... looking to get married and settle down and raise kids...

The Kids issue I will take up at another time.

For now, let's go in depth on a quote from the article.

A quote from a pastor, one Brian Racer, whose own instruction and whose adherents are featured:

''The Hebrew words for male and female are actually the words for the male and female genital parts,'' he told me. ''The male is the piercer; the female is the pierced. That is the way God designed it. It's unfortunate that homosexuals have taken the moniker 'gay,' because their lifestyle and its consequences are anything but. Look what has happened in the decades since the sexual revolution and acceptance of the gay lifestyle as normal. Viruses have mutated. S.T.D.'s have spread. It shows that when we try to change the natural course of things, what comes out of that is not joy or gayness.''

Now, Mr. Racer is, it's evident to me, a smart man, a thoughtful man, eager to look for God's word to support what he's learned is moral. He's consulting language- I guess- to realize something about the implicit point of view of the ancient Hebrews, and, again I guess, what God thought that meant about their appropriate sexual and marriage habits. Maybe he's confused his Biblical literalism with his linguistic literalism. Does he believe women are c___s and men are p____s? [rude words removed for the sensitive; if you know what I'm saying, you won't care, and if you don't, please presume they are very rude words] Well, maybe he's not so reductive. But he does love to toss in things he's heard, read, and thought.

What else does he say? Again, that bolded passage: when we try to change the natural course of things, what comes out of that is not joy. Now, this may surprise you, as it did me. I have lots of reasons.

I thought this gentleman was some other flavor, but he sounds like one of the medicine-rejecting Christians. Christian Scientists, Jehovah's Witnesses: these are the folks who reject vaccines or live-saving treatments. After all, it's all in the hands of the Lord, and if you become sick, it's a prime sign that you're supposed to die. [I once rode in a car driven by a woman who prayed loudly to saints to protect her as she turned, changed lanes, and interacted with surrounding traffic. It was a deeply frightening experience. "Trust yourself! Use the Force! Be assertive! Stop praying out loud!" I wanted to scream.] Even if, by using human knowledge and tools, and human free will, you could be cured and live longer and do more good on Earth. After all, the motto of despairing fatalistic anti-science no-free-willers is, "Screw you humans, I'm with God, and His Will is what matters." I'm perhaps interpreting here. Maybe his statement was narrower, and had only to do with marriage.
Just in case I'm wrong though: He may also be against humans building dams; must check this. How about wild apes using tools, or termites doing their excavations, or birds building nests? Natural? Can any human innovation be "to the greater glory of God"?
Maybe he's actually talking about marriage alone, as the article might lead you to believe. In that case, he means: when we [don't marry in the way I read the Bible to instruct us to], what comes out of that is not joy.

Now, this third point is much more interesting.

My favorite first argument of rebuttal is, where the hell were these people when the women were getting equality?

I think Kos (Markos Moulitsas Zuniga, of international blogger fame as Daily Kos) is a left wing wacko- good people, in other words, for the most part, but watch out for the backswing- but he also lets other folks post, and so you get impressive pieces of writing like this: The Reality of the Institution of Marriage by ejpoeta.

Now, the above mini-article is less than correct, because it's too shallow. It says, for example, "Then there was the honeymoon. Its original intent was not romantic. The groom would wisk his bride off to a hidden location to ensure her pregnant [sic] before her family should find them. " Now, this is, as I said, less than correct.

The honeymoon is not about kidnapping from the bride's family. It probably does indeed encourage impregnating the new wife, but it is symbolic too. It's about the husband taking his new property/sex partner/partner in equality (take your pick) away from all other biological and romantic competitors, and getting a shot at passing on his genes. Also, there's the aspect of tying down the love relationship, forcing the new couple closer together, and starting on a long voyage together which involves intimacy as well as cohabitation. The explanation about "before her family could find them" has no basis in biology or history; the family wants her to reproduce, biologically speaking. The family is not competing with the new groom. Other males would be.

That said, the article is right: marriage today is not anything like marriage of yore, because society has changed. Had to, must have, did. Property rights come and go, so do trendy covenant marriage customs, but the role of women (the idea of the role of women) in society is not what it once was. Will never be again.

Given that we have thus departed from what fundamentalists would have us believe is the latest word of God on proper marriage, I can't imagine what they're thinking in telling us that changing society is going to make us unhappy.

They want the gays to stop gaying (they can be gay, just don't act gay or have gay sex; also, stop fornicating, you straights) and to go back in the closet, or be cured. They want women to assume their proper place in the home and in society and in the world. They think it's due to gayness, not lack of proper education, that S.T.D.s are as rampant as they are. They think that viruses are spread by sin rather than by poor hygienic practices.

They want committed asexual gays (Never heard or imagined they exist? Well, imagine with me) to live forever unmarried, because marriage is for straights who make their own kids, or possibly adopt, never for gays. What if they infected the children with Gay? Oops, I said I would save the post on adoption til later.

The article should hopefully wake up some moderates. They're not after the gays who want to marry. It's a metaphorical and ideological war, with their scriptural authority (terrible though it is, and I'll address that in a post sometime too) on one side, and with most of the rest of us, and gays, and Elton John, and Rosie, and Queer Eye, and condoms in high schools, and premarital sex, and adoption by gay parents, and happy sex-positive life on the other. Also, if I may guess, God is not on their side. He may not be on My side, but he sure as sin is not on the side of those who ignore the words of Jesus, whether or not Christianity is at all True.

Again, I refer to Slacktivist and the words of John summarizing his teachings, here.

"And that's the way it is." - Norm Macdonald, SNL Weekend Update.

On Boar's Teeth

2005-06-17T08:17:00.000-04:00

Or tusks, which is what really at issue, not teeth. It's hen's teeth I was thinking of.

Where was I?

Oh, right. Via, How(ard) Appealing, a link to the Seattle Times' report of an ugly little three-sided dispute, with a dentist, his former assistant who was traumatized by a practical joke he played on her by photographing her with little artificial tusks in her mouth he placed while she was anesthetized for another procedure, and, of course, the Insurance Company.

The article by Maureen O'Hagan is titled Appeals court rules against dentist and has the sentence:

"[N]o conceivably legitimate course of dental treatment includes boar tusks," the court said.

Now, without in any way denigrating Ms. O'Hagan's excellent reading, writing, and analytical skills, I disagree with the sentence; therefore it's the Washington State Court of Appeals I have a beef (not pork) with.

While I sympathize with their desire to punish the naughty dentist (again) and protect the relatively innocent insurer, the statement above is just too broad. It just can't be true, as a matter of law, that no conceiveably legitimate course of dental treatment could etc. I mean, what about boar dentistry? What about cosmetic surgeries? Does dental treatment per se not involve unusual-looking teeth?

Ever heard of folks who wish to get vampire teeth implanted? Gold ones? Diamond-studded ones? What about whitening procedures, caps, crowns, reshaping, implanting? See where I'm going with this?

Dental treatment is whatever the customer wants and is willing to pay for that doesn't violate, you know, state or federal law, or the canons of medical ethics, etc. If people want cosmetic alterations, then the provision of those services probably is the practice of dentistry.

That said, the placement of fake teeth plus malicious/prankish photography of unwilling victims violates any number of laws, regulations, and ethical rules. So what the Court of Appeals could have written was,

Any idiot can tell from these facts that when the dentist put aside the requested tools, artificial teeth, and procedure and took up his stupid joke and pig-teeth, that he had wandered far from the normal practice of dentistry. Insurance is for mistakes, not for protecting those who intentionally play practical jokes and wish to avoid paying for the resulting trauma. There's no such thing as practical joke insurance, and for good reason.
So while there may, under circumstances we do not care to consider or discuss, be a need for pig-teeth in the practice of dentistry, this case does not present them. Judgment for the dentist is reversed, an appropriate order follows.

"And that's the way it is."

Do I have to beg for comments, here?

Heck and Sartre

2005-06-16T18:39:00.000-04:00

Sartre wrote a light, breezily entertaining one-Act comedic romp called Huis-Clos, or "No Exit," in which he wrote a phrase (in French, but of course): l'enfer, c'est les autres.

"Hell is -- other people" - Sartre

To which I can only add,

"Don't get stuck in an elevator with J.P. Sartre" - Eh Nonymous

And I can most emphatically agree with this:

"Heck is where you go when you don't believe in Gosh."

Bootstrapping and law

2005-06-15T07:30:00.000-04:00

Welcome new readers!

My first guest post is up at Evan Schaeffer's Legal Underground. There shall be no crossposting ("posting verbatim copies of a message in multiple places, without customising each copy to suit the audience or forum" - close paraphrase of wikipedia definition). A dirty business, that. Doubling up on electrons. Unpleasant. Immoral. I wonder what google traffic I might be accidentally inviting by using those adjectives?

Please deposit a comment after the beep, here or at Evan's site.

Also, browse the previous posts, and leave your deep thoughts there.

God in the gaps: 1st Amendment, RFRA, and WFRA

2005-06-14T08:28:00.000-04:00

The "God of the gaps" parodied by the post title refers to a theological/philosophical idea about "where's God in the process," and relates to discussions I've had with believers- Christian believers of a particular variety common but not universal in the U.S.- about what they call darwinism (a la Mohammedanism).

An article in Slate by Richard Thomas Ford called Take God to Work Day: Why the law shouldn't bend over backward for religious employees, makes some interesting observations and informed me about WFRA, the Workplace Religious Freedom act, a followup to the unconstitutional RFRA (Religious Freedom Restoration Act, see this delightful First Amendment Cyber-Tribune (FACT) page towards the bottom, and also Boerne v. Flores, U.S. 1997) and Cutter v. Wilkinson's take on RLUIPA, the religious land use and institutionalized persons act, see the Becket Fund for Religious Liberty's page.

Is there play in the joints between the requirements of the free exercise clause and the prohibitions of the establishment clause, or contrariwise between the requirements of the establishment clause and the prohibitions of the free exercise clause? See Cutter v. Wilkinson (Becket Fund again) and Davey v. Locke (Pew Forum on Religion & Public Life) (yes). Is there going to be God in there? If WFRA passes, oh yes.

Is it a good thing?

I'll let you know after it passes, if it passes, if it survives judicial scrutiny, and lasts for five years.

Crime & Federalism responds to Orin Kerr re. Scalia & Raich

2005-06-12T22:17:00.000-04:00

As regular readers know, I'm interested and puzzled by the lineup in Gonzalez v. Raich, formerly Ashcroft v. Raich, the commerce clause/ medical marijuana dustup that recently transfixed a teensy, tiny portion of the nation, and made for breakfasttime reading and watercooler discussion for much of the rest.

Orin Kerr had lately posted some thoughtful remarks at the Volokh Conspiracy, here, saying that Scalia "clearly" (probably not his word, I'm interpolating) couldn't have been a zany activist anti-originalist anti-drug use zealot, because look at Kyllo (the can't-use-thermal-imaging, it violates the Constitution decision) or Booker (must prove sentence-enhancing facts beyond a reasonable doubt to a jury, if they are not admitted, or it's a Constitutional violation).

I intuited that Kerr was wrong, but wasn't able to explain why.

Now comes Mike from Crime and Federalism, with this nice little reply: Raich, Drugs, and Scalia's "Originalism".

I think federalists (lowercase f, meaning states' rights, individual rights supporters who dislike expansion of federal government authority without limits... as would most people, if you take it to extremes) are particularly upset by Scalia's decision, which looks unprincipled if you read the main O'Connor's dissent and Thomas' dissenting opinion.

Me, I wouldn't have expected Justice Scalia to side with the dirty hippies he so loathes. But sometimes people are conflicted. I don't know if he was in this case. We can only speculate.

I note that Ann Althouse has also blogged on the "Where were the Justices & What were they thinking" theme, particularly defending Scalia on this very point, here at "Who was inconsistent about federalism in Raich?".

What's in a Name? Why U&PU?

2005-06-12T09:59:00.000-04:00

Unused and Probably Unusable- it's probably time to explain what the heck I mean by that.

When prompted for information by a soulless program (Enter a Username to Continue; must be 6-45 characters long, contain one number, one letter, one punctuation mark, one uppercase, one lowercase, and one invisible letter; must not contain any English, Chinese, or Swahili words; cannot consist only of vowels; and should not be easily guessable by anyone who lives with, knows, or has met you. DO NOT WRITE THIS PASSWORD DOWN. If you forget this password, knowing your social security number, hometown, hair color or first name will allow you to reset it.) I tend to subvert the paradigm.

My first ever chance at choosing my own username came late to my computing experience. I'd been assigned a first-letter-of-first-name-plus-last-name username at inception, back in, oh, 1993 or 1994, I think. The beginning of the Computing Era, as far as I was concerned. The password-changer on the account did indeed enforce some of the basics; can't use your username as your password, can't use simple English words, can't have just three numbers.

When I had a chance to choose, and faced a prompt like: "Please enter username," you know the first thing I tried to enter was "username." I like being uncooperative and literal like that.

And yes, I know it was bad security to, when prompted for my password, to type in "my password." Usually that's not allowed anyway. Or even drowssap.

As they say, the best way to do it is to pick the last letter of a series of words only you would think of in that context- marY haD A littlE lamB, for example. YDAEB. then capitalize and uncapitalize at random, throw in a number in an unexpected location, and change your password daily. No, hourly. And don't write it down. Give me a break. Wait, no, use the next-to last letter. Whatever.

When Blogger prompted me for a blog name, the interface was clumsy enough that you can't easily tell when a name is available, or what's a permitted blog name. You have to experiment.

I wanted a name that was unused, right?

Even better if the name is so abstruse that it's not just not in use, but in all likelihood could not be used.

And so here we are.

The Good Ones - Highly useful links

2005-06-12T09:35:00.000-04:00

Following in the footsteps of "Very Necessary," but not Hot or Not, I wanted to collect some of the best, most fun, most worthwhile links that are Worth Looking At even if they're not crucial enough for blogroll status or daily checking. Useful reference, good writing, or important viewpoints will wind a site up here.

Good Writers: Here lies the fiction
- Phantom Professor, by Elaine Liner, who was Dooced (to be let go from your employment due to the content of your blog, see dooce.com)
- Coyote Lawyer by Jeff Lahan, a Las Cruces, NM prosecutor who writes absolutely hilarious, occasionally unprintable "Tales of a fictional solo lawyer in Fiction Town, USA"
- Anonymous Lawyer, product of the warped mind of Jeremy, host of Jeremy's Weblog. Ha, when was the last time you saw that word written out? Just this instant, Jeremy's current post is about Alan Dershowitz' review of Kermit Roosevelt's new novel, In the Shadow of the Law. Jeremy writes about law school, lawyers, and the world in his own person, but when he cut loose as Anonymous Partner, the antihero of Anonymous Lawyer, the blawging world was rocked on its foundations. Some hated the premise, some hated the tone, some hated what it purported to reveal. I thought it was brilliant, and twisted. Congratulations to Jeremy on landing a well-deserved book deal, and also on avoiding the life of corporate lawfirm drudgery (or worse) that he so cruelly mocked.

Journal-ists: People who don't make stuff up-- at least not out of whole cloth-- but have a good take on things
- Ann Althouse. Lawprof in Madison, Wisconsin; right of left; writes in a very personal and sometimes biting style about her observations of high culture, low culture, and matters legal. Gets a certain amount of respect from lefty bloggers, who realize that she could "kick their ass in a fight." I wouldn't say I agree with everything she writes, what with her being a Bush supporter who hated Kerry and blogged from that perspective, but she's interesting and smart and her archives go all the way back to January '04, check them out if you want to read some good stuff.
- Jeremy certainly belongs here. He's written song parody lyrics, lists of Things (Top 100 Law Students You Don't Want to Be, Ten Things You Don't Want Your Syllabus to Say, among others), and all sorts of other things. See his index for a full rundown.

Factual stuff

Baby Name Wizard. You may already be familiar with the site's NameVoyager, with its jazzy graphics, fun interface, and addicting content that is the BNW. It'll show you growing and declining popularity in first names for top thousand names, now since the 1880s and up through 2004 or so. Fascinating. But the Blog is good too, and check out the FAQs. FAQ? Frequently Asked QuestionS? Right, that thing.

IMDB. Very nearly self-explanatory, "internet movie database." Links to other movies through "movie connections," usually a fair bit of trivia and selected quotation, and the ability to see all of what an actor has been in to date, good bad and ugly. Probably one of the first internet sites I regularly want back to, along with the UBL, the Ultimate Band List.

Google Maps. Definitely self-explanatory, but also better than the alternatives. Shockingly, not the first result when you type "maps" into google; are they slipping? It's the 5th result. Mapquest is popular, I get it, but if you're setting the rules of the game, shouldn't you be giving yourself a weensy advantage? If not by a boost in the rankings (I know, I know, it would be unfair), then by putting up a Special Result at the top, as when you enter a phrase like "madonna birthday", address, or calculation? I mean, look at the features, for goodness sake. It's crazy! You can look up patent numbers! UPS Tracking numbers! All kinds of numbers!

3 Quarks Daily. Rapid-fire science, literature, and other nonfiction articles.

Comments, as always may be used to give me update-fodder for this list.

Hot or Not 3: Antiblogs

2005-06-12T09:17:00.000-04:00

Thanks to a pointer by HB at HA (you're just going to have to get with the program; if I had to type out "Howard Bashman's appellate blawg site How Appealing hosted by LegalAffairs" every time I wanted to refer to it, I'd turn blue), my current interest is:

Antiblogs!

Self-explanatory once you've grokked what a blog is, anti-blogs are the natural antithesis.

The one Howard was pointing to was the anti-SCOTUSblog (as opposed to an Anti-SCOTUS blog, which as he suggested would necessarily blog about the Anti-Supreme Court, were there one. Kinda like the shadow government) and seems to be a conservative reaction against the decision at the venerable SCOTUS blog to blog directly on the likelihood and merits of possible supreme court candidates at the Supreme Court Nomination Blog.

Said antiblawg (a blog that's anti- a blawg, being the natural definition) has a link to the Anti-Becker-Posner blog - I'm not linking to the original, you can just google "posner" and it's up there.

Speaking of which, someone remind me: what's the word for when a single term produces your desired site as the first result? I noticed it a long time ago for cnn and onion (which became theonion as the mobile site grew in popularity; try it yourself), and then nytimes and then nyt and then washingtonpost and then post. The fewer keystrokes to my goal, the better, I always say. But what's the word for a first-result hit from a short search term, so that hitting "I'm Feeling Lucky" gets you right there?

Back to the topic!

Anti-blogs other than blawgs:

Huffington's Toast, "Not Affiliated With Arianna Huffington or The HuffingtonPost" - not that you'd be confused if you spent more than five seconds looking at it. Started early on with biting parodies of instapundit, ann althouse, and of course some of the more inane contributors and contributions of the Real HuffingtonPost. Not recommended if you dislike salty language or over-the-top humor.

BoringBoring, an equal and opposite reaction to BoingBoing, Cory Doctorow's site. Not, I think, a going concern, but a cute idea.

Whitehouse dot org, which is not even slightly like the original, and isn't a blog, but does deserve special mention as one of the most "anti-" sites ever. Not to be confused with whitehouse dot com, which I gathered was soon bought up by the pornography interests. Not that you won't be offended in all likelihood if you visit the Dot Org; strong stuff there, likely not safe for work, and extremely unsafe for conservatives or those who support the administration.

Put interesting ones in the comments, and I'll put them here in an update.

Very Necessary

2005-06-11T08:26:00.000-04:00

Is there such a thing as an essential link? Blogger thinks Google news is. Blawgers think Howard's How Appealing is - thus its preeminent spot among my chosen links on the sidebar. Or "Blogroll" if you prefer it that way.

How about Particularly Checkworthy links? Those that, for whatever reason, are worth memorizing/ memorializing; the good ones.

Sites that update frequently and have a lot of posters- that is, these are group blogs:

the Volokh conspiracy, also prominently on the blogroll. Orin Kerr, Eugene Volokh, Randy Barnett, and other lawyers and lawprofs of high esteem, varying conservatism or federalist slant, and quite high readability. I certainly don't agree with everything posted there, and a few things make me annoyed, but it's one of the top blawgs around that doesn't focus on a single theme.
Language Log. Run by Mark Liberman et al., linguists writing to a professional and lay audience. Published out of the fictional Language Log Plaza, a beehive of incisive and timely linguistic research into the common and the abstruse. Fun fact: it's #3 on the google search results for the word "Log." A favorite link because of my addiction to linguistics and languages. Regularly updated, and it has a list of greatest hits that's well worth delving down into. (This last sentence was purposely not written with parallel construction.)
Goldstein Howe's SCOTUS blog isn't something you need to check every day- unless you're waiting for that big Supreme Court case to come down, and can't wait until Howard or the AP gets on the ball. After all, they might go to the bathroom or pause for lunch, and then what good is constantly hitting refresh?
I don't know, Crescat Sententia? Huffington's Post? Somehow they're not essential.

What about single-blogger blogs and blawgs?

Evan Schaeffer's Legal Underground, f/k/a (formerly known as, not a reference to "f/k/a. . . " the home of EthicalEsq) Notes from the Legal Underground (a Dostoyevsky reference). For a long while Evan's site was so funny, so cutting, and so new that it was a must-check on a daily basis for a law student out to find the funniest legal news and commentary. Howard would cover the funny cases, but Evan would have the best satire and parody. Alas, Evan has changed with the times, after some soul searching you can read in his archives.

What's essential? Who do you check on a daily basis, for fear that if you don't, you'll have missed important news?

Post them in comments, and I'll note them in an update.

Hot and Not: Episode II

2005-06-10T09:04:00.000-04:00

Hot:
U.S., U.K. reach agreement on $16.7 billion of debt forgiveness to struggling and poor countries, mainly in Africa. Note that this sort of thing, relating to the G8, was the main target of Live 8: Fight Poverty in Africa, or whatever the subtitle is.

Citigroup agrees to pay $ 2 billion in Enron lawsuit. Registration req'd, or go see bugmenot if you can't come up with a free anonymous email address. Note that this nyt headline would have been in the "Not!" category a couple years ago- more evidence that the lying, cheating, criminally avaricious whitecollar thugs who infested the investment and financial industries were in more than just a couple bad apples- but there are upsides to this payment.
The article suggests that other companies will be pressured to settle with Enron investors. It notes that this settlement is "large"- one of the largest in history- beaten by the rare ones like Citigroup's own $2.58 billion paid in 2004 to Worldcom investors. But we knew that was large, didn't we? BILLIONS. That's, like, Third-World-Debt numbers. And it's a fraction of what real live investors had stolen from them by abovementioned cheating frauds.

This is why there are market failures; because criminal action is not sure, swift, and severe. Instead, the criminals get a discount on their proceeds, years down the road. And the stock hit they take isn't nearly severe enough. Nor are the jail sentences.

Definitely in the Not column:
The richest 1%, and the richest .1%, and the richest .01% all continue to diverge, from the median and from each other. There's never, ever, not at all ever been a spike like this. On the plus side for apologists: the poor, as a whole, may be better off than they've ever been in the past; there's a lot of technology, convenience, support, services, medical improvements etc. over past centuries. And maybe, they'll suggest, the benefits of unalloyed capitalism (unalloyed with compassion, I think they're saying) are such that we can afford to have massive, rampant inequality.

But step back. How are the poor doing? Any of them dead, dying, imprisoned for life, tormented, tortured, or otherwise in truly worse shape than the rich? And, it turns out, some of them are. Poor blacks. Poor whites. Poor immigrants. Victims of crime. Victims of the rich. Victims of police brutality, murder, and worse. There is, in fact, a worse. Victims of officially sanctioned torment (not torture, oh no, not according to the lawyers). Victims of officially condoned but legally not-quite-permitted torture, up to and including death. Victims of injustice systems that put the innocent to death.

How does all that stack up? Well, it turns out that exploitation of the lower classes did not, in fact, go out of fashion sometime between the late Roman Republic and sometime last week. It's been a major feature of American industrialist society, and it's not going anywhere yet- although increasing automation keeps replacing some of the worst and least computer-savvy-requiring jobs, forcing folks to retrain. That last part isn't so bad. The conditions that janitors, dishwashers, and others who don't even get the benefit of minimum wages that aren't enough to support a family- that is so bad.

Krugman does a good job of raising Economic Inequality as a subject worthy of public debate- and condemnation- while social (NOT fiscal) conservatives continue to dismiss it, and him, as class warfare and a demagogue, respectively. Of course, failure to discuss the possible economic, social, and political ramifications of skyrocketing wage and wealth inequality might, itself, be an example of class warfare, top-down style. But again, saying so would be class warfare.

Guess you can't talk about the existence of class without being engaged in warfare. Comparison is invidious, and if you let people know there's a difference to compare to, they might want change. Bad, bad social reformers. UnAmerican. UnDemocratic. As if any society, democratic in politics or otherwise, had to allow parasites to manipulate the economic system for their own benefit. And by parasites I'm pointing at the productive unproductive; those whose profits do not profit society. People who pay less tax than a working single mother, or a working middle-class couple with two kids, or even a single but honest multimillionaire. When the truly richest are giving less back to society, even as a percentage of their total income, things are badly off the rails.

More on what we owe the rich, and what the rich owe us, as time permits.

Excellent article by Will Baude on the Medical Marijuana Case

2005-06-07T17:12:00.000-04:00

Will Baude, Yale law student and contributor to the group blawg Crescat Sententia, writes in an article posted at the New Republic Online titled "State's Evidence":

...the Court's invocation of the Supremacy Clause of the Constitution--which says that federal laws that are not unconstitutional are "the supreme law of the land"--is misleading. Nobody doubts that when a valid federal law and a valid state law conflict, the federal law prevails. But to determine whether the federal law is valid in the first place, state law is relevant. The federal law is valid only if it is necessary for the interstate drug laws to work, so one has to look at whether the interstate drug laws would work if California's scheme were in place." (emphasis added)

Read, as they say, the whole thing.

Oh, and if you ever catch me writing "Indeed." as the meaningless final word in a post which consists essentially of someone else's thoughts, please speak up; such pomposity* deserves a kick in the head.

The reason you point to an article is to draw attention to it, either to heap ridicule, invite criticism of it, express approval, or otherwise publicize its message. To cite something approvingly and append the empty-headed "Indeed" is to loudly proclaim, "I have nothing to say, but this person said it better than I could." Indeed!

*Gentle disrespect intended for a certain other blogger, who is after all a professor, well-regarded, highly prolific, quite bright, and likes CCR. And more famous to the nth degree than this anonymous blogger, who is after all not regularly featured on MSNBC.

Aside- worst combination ever: MSNBCBSABCNN. I note that by cramming them together this way I include BSA... both a certain discriminatory organization and the Business Software Alliance. Ah, the things one can learn with Google.

In the vein of TShirt Hell

2005-06-07T13:32:00.000-04:00

After exposure to the pleasant and genteel folks at T Shirt Hell (no link, they don't need to be encouraged. First Amendment rights are not the same as a requirement that others spread your speech for you) I postulate a t-shirt that reads

I support gay marriage even if the "chicks" aren't hot

In other thoughts...

- Cheers to the Ninth Circuit for agreeing to rehear the Harrah's makeup discrimination case- see All Deliberate Speed on Jesperson v. Harrah's Casino, or this legally thorough and thoroughly legal summary at KM&M, LLP. Being able to require an employee to wear a uniform makes good sense. Similarly, cleanliness, politeness, and professionalism are BFOQs (bona fide occupational qualifications) - by which I mean, I don't have a problem if you fire someone for lacking those. But makeup? Why? Because it's offensive to not know if the person you are speaking to is male (fully human, to be respected, might beat you up) vs. female (can be ordered around, flirted with, condescended to at will)? Is that the right rationale? That's what Title VII is all about, eliminating _meaningless_ stereotypes which harm good employees.

I wouldn't want to be forced to wear makeup at work unless I was an actor or performer, and I don't see why anyone else should have to do so either. "Clean" is gender-neutral. Lipstick, foundation, rouge, eyeliner, etc. etc. is a burden not comparable to that required by a man to keep himself presentable. Unless you believe everything you see on Queer Eye. And maybe not even then.

Also:

Can anyone really explain how Lawrence v. Texas can be narrowed so as to allow prohibition of casual multiple marriage? Not allowing bigamy under state laws, nor forcing states to create and regulate multiple marriage. I just mean, what's the difference between two consenting adults, and more than that?

Finally: I had already forgotten that Sen. Rick Santorum probably did not, in fact, say the things that an AP reporter quoted him as saying; after all, she quoted Arlen Specter out of context in a way guaranteed to make his accession to power on the Judiciary Committee more precarious. (edited to remove the slur on the good Senator's name; Dan Savage and spreading santorum dot com have already taken full revenge, even if he said and meant it). Nevertheless, some people demonstrably agree with the comments Mr. Santorum may or may not have even said. If any of them reads this, here's my comment: If you can't distinguish between two consenting adults vs.

- one adult and one incapacitated adult (unconscious, hospitalized, PVS, whatever)

- one adult and one child

- one adult and one animal

- one adult and inanimate objects (bananas, cool whip, other inoffensive stuff)

... then I don't want you watching my child, my dog, or my property. [edited for politeness sake]

A phrase which, in retrospect, I won't apply here but find endlessly amusing: Jesus would be ashamed of you. To see what I'm talking about, consult 1 John 4 (and thanks to slacktivist for doing all the heavy lifting, reading, thinking).

Hello, as the saying goes, World

2005-06-07T13:10:00.000-04:00

First post!

Time for "hot or not"

Hot: snowclones, eggcorns (and the eggcorn database), and knowing that any sentence containing "There are X words for 'snow' in Eskimo" is fatally flawed. And a snowclone. Why? Because there's
a) no such language as Eskimo
b) not 80 words for snow in Innuit, and the person who told you there were, was wrong
c) at least a few dozen words for snow-and-snow-related-things-and-phenomena in English, and in most other languages that have any use for the word. Blizzard, slush, sleet, snow, snowman, icicle, snowcone, snowstorm, snowshovel, snowshoes, snowmobile, etc. "But those are all the same word" you complain? Two answers. 1) shut up, and 2) same deal with Innuit and other languages often miscalled "Eskimo."

Also, because the hypothesis that animates the example- that languages have many words (or concepts) for the things they spend a lot of time thinking about, and conversely can't think about things they don't have words for, is vacuous. That means dumb.

Here's a thing we don't have a single word for in English: one-eyed, one-horned flying purple people eaters. I'll post a link to the various meanings that could have later. But, you were still able to picture it, right? Despite not having a word for it?

Also hot: Chess tactics lessons by an aggressive teacher, in beautiful hyperlinked format: Predator at the Chessboard.

Not hot: Pension plans hiding their losses and becoming dangerously underfunded, which causes them to be taken over by the government, inflicting huge losses on the plan participants who had depended on the plan's solvency for their retirement. Nice one, United!