November 30, 2005

Today / 12.01.05

Today in History (1955) - In Montgomery, Alabama, seamstress Rosa Parks refuses to give her bus seat to a white man and is arrested for violating the city's racial segregation laws.

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November 27, 2005

Don't Have a Cow Man

I was intrigued to see an AP story about a Russian lawyer who wants to take The Simpsons to the European Court of Human Rights in Strasbourg, France because he thinks the show spread a "propaganda of violence, cruelty, drugs and homosexuality." As my profile suggests, I have more than a passing interest in The Simpsons and the law, but this lawsuit sounds even less meritorious than Lionel Hutz's suit against the film "The Never-ending Story" for fraudulent advertisement.

A Russian court already dismissed a similar suit. I can only assume the reasoning of the Court went something like this. Plaintiff's allegation that a show with four-fingered yellow figures spreads violence is difficult to take seriously in a country with daily mob-hits and a war in the Caucasus that hasn't changed in years centuries. Cf. Bart the General, 7G05 (detailing the schoolchildren's battle plan to attack the school bully using water balloons and the leadership tactics of Gen. Patton. Arguably, a Russian might take offense to any reference to General Patton, but general Russian nostalgia for the good old days of World War II should override any such concerns.). Similarly, while some might be threatened by an episode dedicated to erasing the stereotypes and hatred of homosexuals, generally this isn't one of the greatest human rights violations in history. Homer Phobia, 4F11. The show offers the occasional drug reference. See, e.g., A Milhouse Divided, 4F04 (showing school bus driver Otto's disappointment that "Stoner's Pot Palace" sells kitchenware); Sideshow Bob Roberts, 2F02 (Mayor Quimby watering the hemp plant in his closet); Bart's Dog Gets an F, 7F14 (showing hemp plant in Marge's family quilt); D'Oh-in the Wind, AABF02 (discussing Seth and Munchie's Garden Delight beverage). Passing references, however, do not constitute promotion. Had Plaintiff's complaint alleged promotion of alcohol use, he would have been on stronger ground for proceeding. See generally, Homer vs. The Eighteenth Amendment, 4F15; Duffless, 9F14 (showing the misery that accompanies those who give up beer, especially while watching a baseball game. Specifically, while at the ballpark, the following takes place:

Announcer: ...the windup and a 2-2 pitch. Oh, no, wait a minute, the batter is calling for time. Looks like he's going to get himself a new bat. And now there's a beach ball on the field, and the balls boys are discussing which one of them's going to go get it.
Homer: [only one not drinking] I never realized how boring this game is.).

Again, Russia is in no position to complain about drinking. Lastly, complaining about cartoon cruelty is like complaining about literary torture, but enough about The Da Vinci Code. More substantively, the cruelty on The Simpsons from the antics of Itchy and Scratchy is fairly balanced by the antics of their Eastern European counterparts, Worker Mouse and Kapitalist Parasite. Krusty Gets Kancelled, 9F19.

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November 25, 2005

Giving Thanks, and a Fine to Boot

Maybe I'm doing too much studying while under the influence of tryptophan, but after reading about the Lochner and post-Lochner cases, I'm curious how the Roberts court would rule on Mass enforcing Blue laws from the Puritan era. More importantly, I wonder what the state of this law would be if the Pats (rather than the Lions or the Cowboys) played on Thanksgiving.

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November 22, 2005

Today / 11.23.05

Today in History (1644) - Areopagitica, in which John Milton argues against a license-to-print scheme of prior restraint censorship, is published.

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Not About Private(s)

Will Baude and UChicago Prof. Lior Strahilevitz appear to be trying to work out a theory of when pseudonyms ought to be granted to plaintiffs. Baude says, "But the federal claim here wasn't an invasion of privacy claim, it was a wiretapping claim, and I certainly do not think there should be a general rule that wiretapped plaintiffs can claim an anonymity that the rest of us cannot when litigating." This strikes me as a rather technical point; if the plaintiff -- in this case, a 16-year-old who was videotaped without her consent having sex with the defendant -- should be accorded anonymity in her state claim of invasion of privacy, then surely that should be extended to her wiretapping claim as well. Judges who find the former claim frivolous can toss it and make the entire suit named.

However, there also clearly is no simple rule that in cases involving an invasion of privacy, the plaintiff will proceed under a pseudonym, and in any other type of case, he will not. I previously considered this issue in a post about Moe v. Doe, the briefly notorious case in which a man sued his female partner for an injury she inflicted during sex. Neither party said anything about an invasion of privacy, but being understandably shy about having their names publicized in such a proceeding, they presumably petitioned for and were granted pseudonyms. This was a state court case, so FRCP 10(a) doesn't apply, but Roe v. Wade is only the most famous instance of a federal claim brought anonymously.

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To Gift or Not to Gift.

An anonymous 1L here at Boalt wrote to me to ask whether it is proper to give gifts to your section profs, TAs, Legal Research and Writing instructors, etc. I responded with a resounding no. I have never been a fan of buying gifts for teachers (or bosses). It just strikes me as a bit tacky. If you want to show your gratitude, I think it would be far more effective to thank them for the time they put in on your behalf. But a gift? I am open to persuasive arguments to the contrary, or just juicy stories about section-wide debates about buying gifts, how much to chip in, etc.

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November 18, 2005

Not As Funny As Ashcroft, But...

From the law school email list:

The Funniest Lawyer in New York stand up comedy contest is looking for
funny first-timers in the legal field - students, faculty, administrators - who'd like the opportunity to try their hand at comedy. Spots are available at Stand Up New York, an comedy club on the Upper West Side on November 28th and Friday, December 2nd. Information.
I can't tell whether this begs more for a stupid joke about Michael Dorf -- of "Quit the Joke, Dorf" Law Revue fame -- or one about the good that could be done by a well-placed explosive at this comedy club. The general public is none too fond of attorneys, and ones who think they are comedians as well may be too much for normally mild-mannered New Yorkers to handle.

And yes, I'm probably just bitter that I'm the least funny person on this blog.

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November 16, 2005

Today / 11.17.05

Today in History (1973) - A student uprising against the military regime in Athens, Greece was crushed and several students killed; a Greek terrorist group claiming Communist goals took its name from the date.

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Questions for Ashcroft

Former Governor, Senator and Attorney General John Ashcroft is coming to Columbia at the end of this month, and the organizers are soliciting good questions to ask him after his speech. (Good question probably ≠ "Do you sodomize your wife?" or more relevant to Ashcroft's interests, "Do you look at any kind of porn?")

If any De Novo readers have suggestions, please comment. Right now my best thought is something horribly nerdy about what his past experience as Missouri governor made him think personally about the federal government's exercise of power over states' ability to determine sentencing, provide medical assistance and ensure death with dignity. Alternatively, in light of his Department's declared need to get into citizens' information, does he feel the same way about the Clipper program now as he did when it was the Clinton Administration threatening Americans' privacy and right to keep data secret?

For those wondering how Ashcroft has been spending his time since leaving the Bush Administration, he is teaching occasionally at Regent University and considering a book deal. In an odd bit of circularity, the private company ChoicePoint, which is paid by the FBI to give it private sector records, has hired his consulting firm the Ashcroft Group to lobby for it.

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November 15, 2005

Hope She Brought Garlic and a Stake

The New York Times mentions in a piece about the post-nomination life of Harriet Miers,

Ms. Miers has spent some time going out, including to a dinner of the Federalist Society last week, when Karl Rove, the White House deputy chief of staff who remains under investigation in the C.I.A. leak case, hailed her as a "warrior."
Mr. Rove added, to polite applause from the conservative group, "If you like every one of the 200 judges that we have sent forth to the U.S. Congress to be approved in the last three years, there hasn't been one of them who hasn't been researched, vetted, studied, analyzed or recommended by my friend Harriet Miers."
Considering the inhospitable attitudes of many Federalists toward the nomination of someone who wouldn't showcase their preferred theories of jurisprudence, this was good grace on Miers's part. I might have been inclined to say, "If any of you mofos* think you're getting the president's ear from now on, think again."

* I was told during interviewing that the firm actually is trying to go away from that abbreviation a bit, but I love it so!

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Alito Does Not Equal Ginsburg

Today I saw another example of the trouble with having journalists with little legal background report on legal issues. Like those who write on economic matters without being able to draw a supply and demand graph, they have no ability to fill the gaps between soundbites. With Republicans from Sen. John Cornyn to Wendy Long of the Judicial Confirmation Network all reciting (paraphrase), "Ruth Bader Ginsburg publicly opposed Roe and no one bothered her about it," the reporters jot it down and move on to the next quote, and the layman is left wondering, If Alito's views are the same as Ginsburg's, why are the pro-choicers so worried by him?

As law geeks know, however, there's a big difference between Alito's 1985 statement that "legal positions in which [he] personally believe[s] very strongly" include "that the Constitution does not protect a right to an abortion," and Justice Ginsburg's problems with Roe, which focus on its poor grounding in penumbra and bad timing in halting the liberalization of state abortion laws. After several years of arguing that laws and regulations should be struck down because they failed to meet the Constitutional standard for sex equality, Ginsburg probably surprised few people when she publicly attacked Roe for not invoking the gender-specific burden of abortion prohibitions. She said at her own confirmation hearings, "Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men."

(For what Ginsburg was really saying when Alito was declaring there to be no Constitutional right to abortion, check out this 1985 essay. She thanks her then-clerk Michael Klarman for his assistance; I know Klarman, a UVA law prof, best for his claims that Brown v. Board did to the move toward desegregation what Roe is said to have done to abortion liberalization.)

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November 13, 2005

Today / 11.13.05

Today in History (2001) - President Bush issues a military order on the detention, treatment and trial of non-citizens whom he has reason to believe are involved in terrorism. On November 7, 2005, the Supreme Court decided to review the matter, minus Chief Justice Roberts, who as a D.C. Circuit judge ruled the order to be within bounds of executive authority.

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November 11, 2005

Weighty Discrimination

In the course of a discussion about housing, a friend mentioned that she knew of a landlord who quizzed all prospective tenants about their weight, apparently because he was worried that a very heavy person might cause damage to his floors. She found it not only distasteful but unwise because it might open him to a lawsuit. To my knowledge, there is no obligation not to discriminate on the basis of weight as such, but there is an obligation not to discriminate on the basis of disability, real or perceived.

A couple of weeks ago, Slate published a piece about the politics of fat*. It juxtaposed the growing population of overweight Americans with the lack of accommodation, both practical and psychological, our society gives to such people. Some fat activists decry the diet industry because they believe that fat is generally genetic or glandular, rather than a product of behavior that could be changed.

The origin question is important in the politics of fat because it shapes the approach to policy and advocacy issues. For instance, should the primary battle now be to ensure that obesity is included under the Americans with Disabilities Act? Some argue that this is a misguided strategy, since it turns fat into a disease instead of a rights issue -- though if it were a recognized disability, suing over workplace discrimination and access issues would be a lot easier. Access and mobility hurdles provide material for a lot of wrenching chat-room discussions: Sufferers trade coping strategies for an endless variety of daily humiliations or share the longing for less impeded lives -- like just being able to get an airplane seatbelt around your waist without a humiliating extension. Such admissions can also prompt heated responses from the more defiantly fat and proud: Doesn't wanting to lose weight mean giving into self-hatred? (Or, as the militant put it: Should blacks desire to be white and thus give into racism?) The psychological strain of trying to have dignity while lugging a fat body around is all too palpable, despite the pride rhetoric.

As long as one is heathy while being overweight (and I know people whose cholesterol and other measures of cardiac health are much better than mine despite their being larger), I see no reason that one should be pressured to lose weight. However, to the degree that real obesity -- that which causes one to need a seatbelt extension -- negatively impacts health, to tell people that they shouldn't feel obliged to change themselves is wrong.

Nor should the law recognize obesity as a disability unless an individual's condition is as unalterable as most recognized disabilities. A broken arm doesn't make someone disabled; it means a physician should help that person to heal the limb. Sometimes a broken arm never will heal completely, and that does render a person disabled. With people who are obese, a physician might talk them into a program in which their food intake is strictly monitored and exercise enforced, and yet they still do not lose weight, and this would be obesity that should be covered by the Americans with Disabilities Act.

Nonetheless, I disagree with KZ's post on a lack of responsibility for oneself being the only real culprit in the higher rates of overweight and obese among lower-income populations. As the Slate article points out, fat activists show little desire to blame the food industry and its massive oversupply of calories, nor any other entity that alters how we eat except for the diet business, even though changes like the shift from sugar to high fructose corn syrup are partly driven by subsidy and trade policy, not entirely by the market. Congress probably will follow its prohibition on gun litigation with one on obesity-related litigation**, even though the only lawsuit in the latter category that has not been immediately tossed out as frivolous is one dealing with misleading advertising to minors, which has a tobacco pedigree.

However, government regulation beyond ensuring accurate and helpful nutritional information may be unnecessary if there is a sufficient public pressure on the food industry. Even McDonald's is at least trying to reform its image, if not its menu. This is a product of the attitudes that KZ decries: seeing the food industry as bearing some responsibility for what we eat.

* I was surprised that a Culturebox entry on this issue failed to mention Jennifer Weiner, who while not what I would call an activist, may well be impacting at least some people's perception of "fat." Her chick lit tends to have at least one main character who is overweight -- not just perceiving her body incorrectly (a common problem among the Bridget Jones types), but seen as such by others. Weiner's first novel was plotted around the humiliation of a woman who is clinically overweight; the second novel features Rose, an unideal size 14; the third includes Becky, who is told by a nurse that her obesity makes the baby difficult to see in an ultrasound. The latest, Goodnight Nobody, is told from the perspective of a woman who at least feels like "Shamu in a sweater set" compared to her Desperate Housewives-like neighbors. None of these women have weight loss as part of their happy ending, and all seem to be in good health.

** I missed Jacob Sullum's take on the federalism problem with such Congressional bans on state court torts when it was first published last month. I don't mind giving Congress sufficient authority under the Commerce Clause that it can do things like, say, pass the Fair Housing Act (if nothing else, the alternative route to non-discrimination seems to be Shelley games), so I'm starting from a more Wickard perspective than Sullum's anyway.

But to have Congress setting the agenda for state courts seems somewhat problematic, though the counter-argument shows up in Hit&Run comments, i.e. that with our current long-arm rules of jurisdiction, state courts often are dealing with matters that do not properly belong in that state. On the other hand, presumably the major corporations that are defendants in such suits could invoke complete diversity jurisdiction to put a plaintiff from a state in which they do not do business into federal court. (Indeed, the citizenship of corporations is supposed to be limited to the states in which they incorporate and where they have their chief place of business.)

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November 09, 2005

Bizarre Hypos

I was reminded today of the day when in response to a question, K Prof responded, "ahhh so let's say I drink two lattes and turn into the Great Cornholio." With that in mind, I'm hoping the blawgosphere and commenters will share their stories of bizarre hypos, questions, answers, etc.

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November 08, 2005

Today / 11.08.05

Today in History (1966) - Former Massachusetts Attorney General Edward Brooke becomes the first African American elected to the United States Senate, and President Lyndon Johnson signs into law an antitrust exemption allowing the National Football League to merge with the American Football League.

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November 07, 2005

O'Connor's Clause

Armen thinks that Bush has found a near replacement: "I still believe that O'Connor was not as moderate as advertised, i.e., she and Alito probably line up far more than both liberals and conservatives would like." My own theory is that O'Connor's conservatism found greatest expression in limiting the reach of congressional power claimed through the interstate commerce clause, and that she otherwise was quite moderate. Indeed, despite the scorn from the legal establishment that often greeted her balancing tests, I bet she aligns well with the average American other than in her federalism votes.

Even in federalism, however, Alito appears to be to O'Connor's right. She voted with the majority in Lopez to find that there was nothing to do with interstate commerce in possessing a firearm in a school zone, but his infamous dissent in U.S. v. Rybar* tried to push Lopez's reasoning to overturn a federal statute that banned possession of machineguns acquired after 1986. Alito thought the statute was too broad because it would reach machineguns that had been converted into such at home, with no commerce involved at all, and this is precisely the situation that the 9th Circuit found not to fall under federal power in U.S. v. Stewart, which Raich effectively overturned -- against O'Connor's strong dissent. Will Baude mentions this dissent in noting

On the other hand, Dole is different, since it's about alcohol, whose regulation might uniquely be an area of state concern after the Twenty-First Amendment: "The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." [Of course, under standard federal pre-emption analysis, it is far from clear why this clause limits federal power at all.]
O'Connor joined both Thomas's and Stevens's dissents in the interstate wine shipment cases, emphasizing that unlike Kennedy, Scalia, Souter, Ginsburg and Breyer, she sees the 21st Amendment as a particular bar to interfering with state sovereignty. Stevens, after all, normally sees federal interstate commerce power quite expansively, but the prospect of states' being unable to regulate speakeasies was too much for him.

As for U.S. v. Butler, I may be misreading it completely, but for some reason I thought that when Roberts says,

While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. But the adoption of the broader construction leaves the power to spend subject to limitations.
he did mean that, in Will's phrasing, "the spending clause was limited to expenditures that were necessary and proper to the furtherance of the other enumerated powers," as opposed to being limited to what might be called the spending clauses: " to pay the Debts and provide for the common Defence and general Welfare of the United States [...] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy."

* For some reason it makes me happy to discover that there was a case called U.S. v. Rambo in which the defendant also tried to challenge the Article I power to ban possession of machine guns. More seriously, I doubt that Alito would go as far as Thomas in radically revising interstate commerce precedent -- a required nexus between interstate commerce and the machinegun in question would have satisfied Alito. And I justify writing this post instead of reading for my seminar because it's a federalism seminar and this was like a review, right?

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November 06, 2005

A Great Idea...If You Have the Time

While wiping away the tears at the loss of my clearly overrated but beloved Bruins, I managed to read O'Connor's dissent in South Dakota v. Dole, 483 U.S. 203 (1987) (arguing that the U.S. does not have the power to tie Fed highway funds to the condition that the States raise the minimum drinking age to 21). This got me thinking about just HOW do the views of Alito and O'Connor line up on the issues that the two have had the occasion to write about. I don't imagine that this would be too difficult on either lexis or westlaw, although I expect it to be very time consuming and hence why I'm not doing it. I eagerly await results (though I still believe that O'Connor was not as moderate as advertised, i.e., she and Alito probably line up far more than both liberals and conservatives would like).

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November 05, 2005

Today / 11.06.05

Constitution Days: Dominican Republic (1844) and Tajikistan (1994). The latter nation recently followed France's lead by banning hijabs in secular schools. The government claims that religious symbols violate the constitution and critics say the ban violates civil rights.

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November 03, 2005

Present and Accounted For

It has come to my attention that some law schools have mandatory class attendance policies. The hell? I'm wondering if tens of thousands of dollars in tuition and fees, as well as free wireless access for unlimited porn downloads are not enough to get you into that seat bright and early on a Friday morning, why does the school bother with coercing you into going? And does this reflect in any way on the quality of law school professors? (See, NYU Coase's list).

UPDATE: Mike, from Barely Legal, beat me to it by a day.

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November 02, 2005

Creeping Class Actions

The pending Netflix settlement of a class-action claim that the company throttled service to heavy users and failed to fulfill its onetime promise of one-day turnaround inspired a 3YoH discussion on the evils of class action suits. That many class actions are economically inefficient, resulting in a loss to the productive company and a windfall to the contingency-fee attorneys, is undeniable. A. Rickey begins by talking about how singular (pun unintended) the class action sounded to his British friends:

The most difficult explanation--made slightly more difficult by the fact that we mentioned it during the second round of drinks--was probably the strange American tradition of the class action.
We Americans tend to take the class action lawsuit (and class action lawyers) for granted, but they don't exist in much of the rest of the world. The idea of randomly being involved in a lawsuit that you don't know anything about, when you didn't really have a complaint against the company to begin with, seems a bit... well, odd.
The Europeans are considering becoming more American in this respect, according to two recent articles (1, 2) in a British trade magazine, and the Dutch already have "collective action."

Despite the vilification of the plaintiff's bar, particularly by conservatives, it doesn't appear to have become sufficiently unpopular to spur a democratic backlash and significant movement for a change in the rules of civil procedure. The anti-class action folks have yet to hit Hollywood, whereas based-on-a-true-story movies about the virtuous class action are churned out every few years. (Think Erin Brockovich, A Civil Action; this year's is North Country, about a class action against workplace sex discrimination.) Moreover, the problems inherent to class actions -- and there's a question of whether mass joinder would be better -- are somewhat muddled up with the drawbacks of contingency fees, which form of payment some nations are adopting to varying degrees. For example, the UK permits solicitors but not barristers to work on contingency.

UPDATE: Will Baude proposes that the same kind of compensation given to the injured Netflix users be extended to the attorneys in the case.

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A Riddle Inside a Puzzle...

Whenever I hear someone claim that Alito is not like Scalia, I assume they mean he's willing to abandon legal principles to obtain conservative ends. See, Thomas.

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