May 31, 2006

Preserve the Sacredness of Living in Sin

Though I've often joked that I'm in favor of legal recognition for same-sex unions because I want gay people to be as miserable as straight people, I didn't have any notion of forcing anyone, hetero-homo-bi-trans-asexual, to have to undertake marriage. People who want to make the commitment should be able to do so regardless of their gender, but they should make it voluntarily, like joining the military. Drafting people into the bonds of matrimony when they haven't chosen it strikes me as an invasion of the freedom not to marry nor make any reasonable facsimile thereof (civil unions, domestic partnerships, etc.).

Yet that seems to be what Britain's Law Commission proposes in the guise of giving unmarried couples' relationships "rights in line with those in marriages." There's no suggestion that any discrimination prevents these couples from getting married if they wish to do so; same-sex unions already are recognized, and if the cost of a marriage certificate is so prohibitive, the government can issue income-based waivers. People who do not to marry/ unite/ partner are deliberately choosing to live outside the existing legal paradigms, and this choice ought to be respected. Presumably the UK's Child Support Act is similar to the American regime, in which a baby born out of wedlock nonetheless claims monetary support from his biological parents, so this doesn't protect children of unmarried couples. Many American states also provide for common law marriages after several years of cohabitation and publicly holding out the co-habitor as a spouse. Though not a legally registered marriage, calling someone your husband or wife is enough of a decision that I'd countenance it as the cheap ass-backwards version of getting hitched.

The Church of England conditions its support for the Law Commission's proposal on maintaining the "unique position of marriage," but I want to maintain the unique position of shacking up. Even in England, longterm childbearing cohabitation is not the norm; more people who undertake such non-legal commitments make a legal commitment to each other than those who do not. Let people who decided to deal with the questions of "You're not married yet?" and "How long are you just going to live together?" do so instead of imposing the rights and responsibilities of marriage on them.

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If Only They Had a Second Amendment

The recent wave of murder and assault with knives in Europe is horrifying to Europeans but a little difficult to take seriously from an American perspective. "In Berlin on Saturday, a knife-wielding teenager ran amok among people attending celebrations to mark the opening of a new railway station. Some 28 people were injured in the incident." Yes, very bad, but not exactly on scale with, say, Columbine. If my choice is between a knife-wielding teenager and a gun (or bomb)-wielding one, I'll take my chances on the blade.

In particular, the British knife amnesty is really confusing. I understand how U.S. firearm amnesties work -- you have a gun that may not be wholly legally yours and is not registered with the proper authorities. Instead of waiting for the NRA to be right and the government to kick down your door and find the gun, you take it down to the police station and get some cash or perhaps a toy. But why would anyone turn in his knife, unless he'd committed a crime with it and wanted to get rid of it anonymously? As far as I know, one can buy a knife in the UK or even bring one's cooking knife set from overseas, provided that it's not in the carry-on luggage. The knives used for crime don't seem to be particularly fancy: "The latest litany follows the death of Special police constable Nisha Patel-Nasri, who died when she was stabbed with her own kitchen knife on her doorstep in northwest London on May 11."

I'm not a fan of guns, partly because they have a rather limited set of uses. They are for shooting people and things, and while the shooting may be done for important purposes (self-protection, animal population control, sustenance), I am not convinced that these outweigh the negative consequences of the enormous number of firearms in the United States. Knives, however, are decidedly more versatile. Nearly every person will use a sharp knife at some point for wholly peaceful purposes, and Swiss Army knives are legitimately designed to be carried in a pocket so one can perform nonviolent tasks such as opening a box with them. Metropolitan Police Commissioner Ian Blair's recommendation, of a mandatory prison sentence for carrying a concealed blade, therefore seems a bit impractical.

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May 30, 2006

Deities of the Federal Register

Doubtlessly this wonder has been wondered many times before, but I can't help wondering nonetheless: why are adverse events called "acts of God"? This isn't just a colloquial phrase; it's in insurance policies and government regulations. In these contexts, "act of God" always refers to some result of natural forces, particularly the weather, and is distinguished from human error or misbehavior.

The Commission may not without good cause review a determination made under sections 705 or 735 of the Act, or suspension agreements made under sections 704 or 734 of the Act, less than 24 months after the date of publication of notice of that determination or suspension. Good cause includes:
(1) Fraud or misfeasance in the proceeding for which review is sought;
(2) Acts of God, as exemplified where a severe freeze sharply reduced U.S. producers� shipments of frozen concentrated orange juice; and
(3) A mistake of law or fact in the proceeding for which review is requested that renders that proceeding unfair.
Calling a sharp reduction in the shipment of frozen concentrated orange an "act of God" just seems sacreligious, though this complaint is of a piece of the usual dubious liberal argument that we must keep church and state separated in order to prevent pollution of the church's holiness by the dull mediocrity of the state. (I call it dubious because even though it fits with my ideas about religion, it doesn't seem to be much favored by really religious folks, who I suppose are more certain of religion's ability to withstand government influence than I.) Anyway, I move that the government stop calling bad weather an act of God and call it "Damage Accounted by Man against Nature." It fits better with the common reaction to the approach of hurricanes, earthquakes and such, which unfortunately is not to submit calmly to the will of a supernatural entity but instead to make use of the acronym.

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May 29, 2006

Today / 05.29.06

Today in History (1994) - Before there was Cindy Sheehan... Herbert Shughart refuses to shake hands with President Bill Clinton following a presentation of posthumous Medals of Honor to the widows of two soldiers. The father of Randall Shughart, whose heroics in Mogadishu are depicted in Black Hawk Down, Mr. Shughart reportedly told Clinton in a private Oval Office meeting, ''You are not fit to be president of the United States. The blame for my son's death rests with the White House and with you. You are not fit to command.''

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May 25, 2006

Little Justice

I've never found prison rape to be particularly funny, and after editing an article about the shortfalls of the Prison Rape Elimination Act, think that it's the ugliest symptom of an array of problems in the American system: overcrowding, lack of rehabilitation, cut ties with the outside world, etc. That said, I can recognize the irony of deeming a child molester to be too small and easily-victimized to go to prison. Milbarge has pointed out that "there are some cases approving sentencing departures because the defendant is unusually susceptible to prison violence or sexual assault."

Perhaps we need a penal alternative to prison. I'm not sure what that could be, as the 8th Amendment precludes many of the historic options like corporal punishment. Does anyone know if the stocks are considered corporal punishment, or otherwise are forbidden by the 8th? After so many years of disuse, it might fall afoul of the "unusual" provision, but if putting short people in prison is too cruel, we're going to have to get creative. As our standards of cruel and unusual have evolved, prison appears to have devolved into inhumanity, so that confinement with other offenders is tantamount to a sentence to be brutalized.

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May 24, 2006

Geographic Language

I ran across two turns of phrase lately that struck me for their disparity in coolness. The first was found at the Center for Moral Clarity's website. (I saw the Center's name on an amicus brief in the Supreme Court's document room, and felt compelled to verify that something with such a mockable name existed). I was happily surprised to find that the homepage featured a picture of people of color in the left sidebar; I was less happily surprised to see "Ministry Nurtures Christian Leadership on Dark Continent" heading their list of Top Headlines in the right sidebar. The American Heritage Dictionary's entry for "Dark Continent" says it is "A former name for Africa," and one rarely sees the phrase used nowadays except to point up that some given situation shows that is not the Africans who possess the heart of darkness.

Apparently judges or their clerks are better at creative writing than journalists are, as a 2005 First Circuit opinion offered a more inventive span of words: "To be sure, the en banc court has discretion to review all the issues presented by an appeal, even though the order convening the en banc court indicates a more isthmian focus." United States v. Padilla, 415 F.3d 211, 217. This offers the opportunity to use a rusty English BA for some textual unpacking. Does the opinion merely mean that the order has a more narrow focus than the wider-ranging appeal, or was isthmian deliberately chosen to convey a sense of bridging two masses?

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May 20, 2006

Welcome to the Real World She Said to Me

In actuality, being a summer associate is to being a real law firm associate as being Santa's elf : being a sweatshop worker, but I've nonetheless started reading associate blogs for wisdom about the experience. For example, Legally Blonde Elle has found an "Added bonus: Now that I'm full time our secretary has added my name to her voicemail as someone she's a secretary for. I take this to mean I actually have someone who does things for me as opposed to someone I convince to do my proof-reading, mailing and other random non-billable things for me."

I met the secretary assigned to me yesterday and while she's a very nice and helpful woman, I feel a bit strange about our relationship. When I worked before law school, I certainly didn't have a secretary and I'm pretty sure the receptionist was paid as much as I was, or at least her time was more valuable. Because I am going to be out of the office all day next week on an assignment and our summer coordinators had told us that our secretaries should be informed of our whereabouts so they could inform others, I e-mailed my secretary and gave her my cell number in case anyone called her looking for me. She replied saying that I'd need to set up my phone to forward calls to her, and that she would instruct me on how to do this. But Elle's post makes me worry that perhaps my secretary thinks I'm expecting her to take care of "random non-billable things for me." It's weird enough having her do my timesheets -- wouldn't it make more sense for me to input my hours directly myself instead of forwarding them to her?

Time itself is different in working at a law firm than it was at my previous job. At Old Job, the tasks didn't require a massive amount of thought; I'd have to think of where to get information, and how best to present it, but that was it. I started blogging because between the work and the lack of interaction with other people, I was afraid my brain might dry up and blow away from the dearth of verbal challenge, which was the form of mental exercise that 16 years of education had accustomed me. I'm sure that I'll eventually have to do something stultifyingly, couldn't-a-monkey-do-this dull in legal work, but the process of doing research to find cases that help our side demands a lot more of my grey matter, and I've already had a moment of anxiety that I'm not up to it.

Last night, Elle complained, "I was at work until 8 p.m.," and while I don't have the list of aggravating factors that she does (the Pistons game is true for everyone, but I can make an effort to find a sports bar Monday for Spurs-Mavs Game 7), I was at work that late as well. No, not to be a summer associate gunner -- just to get the work I had been assigned done. My brain froze up trying to make a case in the opposing side's brief work on our behalf, and I sat staring at it past 5pm. If I had gotten a lot accomplished already and still had to work late, I'd be annoyed too, but having something not quite gel is something I've heretofore only dealt with in calculus and contracts, not in an office.

I've gotten plenty of warnings that summer associate work won't prepare me for the rigors of being a real associate, and that's finally managed to disturb me. If it's going to take me two hours to analyze a case when my brain theoretically is young and peppy, how long will it take when I'm, like, 30?

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May 19, 2006

I Just Play One in Class

If augurs well, I will be in Prof. Choper's Supreme Court seminar where 18 students get to play each of the 9 justices. Which one will I be? Who knows. But if I'm John Paul Stevens you better believe I'll be wearing a bow tie to class. This only raises a dilemma. What should I do if I'm any of the other eight? Tips, thoughts, comments are always appreciated. Here's a few that I've daydreamed about.

If Thomas, then sit in class and don't say a word all semester. Unfortunately I can't get up and wander around in the middle of class because Rehnquist is no longer on the Court. I could try to speak with that Ginsburg lisp. Leave messages on the Professor's phone saying, "Hello. This is David Souter. Please call me back when you have a free minute."

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May 17, 2006

Footnote for Cash

A soon-to-be De Novo Survivor contestant recently ruminated on the Supreme Court's declaration that as of December 1, all federal court decision are to be published and citable.

[W]hat was the problem in the first place, I mean� a judge is a judge. It's not like they're allowing us to cite to Judge Judy� right? Not so according to Judge Kozinski of the 9th Circuit:
At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."
OK, so 80% of judicial opinions are the equivalent of fatal sausage.[...]
Now that I know more about who is writing opinions, I understand where this wonderful Billy Madison reference in a Federal Bankruptcy Court came from. I'll be interning for a judge for part of this summer, so who'd like to see a Judge Dredd quote?
First, Judge Judy was a New York judge for 24 years, and was supported by many public commentators, ranging from Kurt Vonnegut to Richard Cohen to James Lileks, as a replacement for Justice O'Connor. Second, since we're getting into a competitive mindset, there should be a prize to the clerk who gets the most bizarre low-culture footnote into a judge's opinion in the next year, something like a trip to L.A. to watch a taping of Judge Judy...

Because I'll be working in the private sector this summer and have no power over judicial opinions, I can't compete, but that does mean that I might be able to afford to give away the prize. If anyone would be interested, send me an e-mail before a judge's opinion is officially published, telling me what will be referenced and in which footnote it will be. At the end of the clerkship year, around August 2007, I'll send $500 (enough for a round-trip flight to LAX from most of the country) to the winner. I'm going to limit this to opinions from the highest court of a state; federal district, circuit and supreme courts; and the chief chancellor on each of the courts of chancery, because the hiring bonus for anyone who clerks on those will far outweigh my petty prize, and they'll be acting for love of the joke. Staff attorneys also are eligible, though this seems like a riskier proposition for them.

My prediction is that no one will be able to slip in a really strange footnote that her judge doesn't notice. Kozinski may leave the duller opinions entirely to clerks and attorneys, but I doubt that he doesn't at least glance at what will go out under his name. His own letter to then-Judge Alito supports this, as he says that "these dispositions were drafted by our
central staff and presented to a panel of three judges in camera, with an average of five or ten minutes devoted to each case." Unpublished opinions may be rife in cases in which judges are comfortable with a ruling for particular situation that they would not want treated as precedent in whatever case a lawyer wants to raise as parallel. That doesn't necessitate that they be less professional than the Marburys, Mirandas and Chevrons, only that they not be as appropriate to cite.

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May 16, 2006

New Twists in "Kritarchy" for Equality

Same-sex marriage has been legal in Massachusetts for two years now, and while the state currently is more concerned about being flooded with water than with gay couples, the various reverberations of Goodridge still are being felt around the nation. Of particular note are legal challenges to the rash of constitutional amendments to ban homosexual unions that followed the Supreme Judicial Court's opinion, as well as to attempts to overturn the opinion itself.

In Massachusetts, a gay advocacy group recently argued that the state constitution says an initiative may not be approved for the ballot if it is seeking to reverse a judicial decision, which is what the proposed Protection of Marriage initiative certainly seems to do. I must say that Chief Justice Margaret Marshall's remark, that the attorney general�s pro-initiative position suggest that democratic initiatives could lead to a reversion to slavery and husband's rights over property, seems awfully dumb. The assistant attorney general Peter Sacks is either slow on the uptake or just eager to roll over for Marshall, as he agreed with her instead of pointing out that slavery is prohibited by the 13th Amendment to the U.S. Constitution, and that husband-only property rights likely would fail the heightened scrutiny accorded to gender-based rules by the federal courts. (Assuming that "husband" is meant to signify only and ever the male half of a pair. If couples could designate the "husband" and the "wife" at the beginning of each marriage without gender bias, that could provide a terrific explanation for something that has puzzled me: by law, how does a husband differ from a wife? and if they are the same, why is it a problem to have two husbands or two wives in a marriage?)

I am happy with the main ground for Goodridge, which is that to discriminate on the basis of sex with regard to whom a man or woman may marry violates the state's guarantee of gender equality. But if the people of Massachusetts want to write into their constitution that the exception to this rule is marriage, there is nothing more to be done in state court and we had better go to federal court and the legislatures.

And then in Georgia, where the citizens had passed a constitutional amendment (and where, incidentally, the state bill of rights says, "The separate property of each spouse shall remain the separate property of that spouse except as otherwise provided by law"), Fulton County Superior Court Judge Constance C. Russell* struck the prohibition on same-sex marriage down for violating the state constitution's single-subject rule for ballot questions. Though the linked article doesn't say, I'm guessing that the language upon which she based her decision was at the end of Paragraph II: "When more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately, provided that one or more new articles or related changes in one or more articles may be submitted as a single amendment."

The passed amendment doesn't seem to have been a change to any existing article, as the state constitution had heretofore left the subject of marriage alone except for the aforementioned bit about spousal property and another bit about jurisdiction over divorce cases. So the new language was plunked, somewhat ironically, into the Bill of Rights as its own new section IV. Ga. Const. Art. I, � IV, Para. I (2006):

PARAGRAPH I. Recognition of marriage
(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.
(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such relationship.
Apparently all of this was presented to voters as a single proposal, with no opportunity for those who wished to vote for marriage-only-as-man-and-woman but not for no-same-sex-union-entitled-to-benefits-of-marriage, or for those who wished to vote for don't-go-bringing-your-fancy-out-of-state-unions-here but not and-don't-ever-try-to-get-one-here-neither, to make such distinctions. Whether many actually would is uncertain; given how unhesitatingly the original proposal passed, I suspect that putting a revised version on this November's ballot would just have the same effect of getting out the conservative base that the 2004 round of amendments did.

* What is it with female judges getting disproportionately out in front on same sex marriage? Are they just more aware that this is an issue of gender equality?

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Today / 05.17.06

Today in History (1999) - In Saenz v. Roe, Justices Scalia, Ginsburg, Souter, O'Connor, Breyer and Kennedy join Stevens's opinion that the Constitution guarantees the right of new residents of a state to be treated equally with older residents, thus invalidating a provision of welfare reform. Rehnquist and Thomas join each other's dissents.


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May 15, 2006

Steal This Blog

With Wings & Vodka on the verge of graduation (once he passes that secured credit final), De Novo must replace his rear end on the Sitting in Review bench. We therefore solicit posts from anyone who will be in law school during fall 2006 and who would like to contribute to this blog.

In commemoration of W&V's love for television, the new De Novo blogger will be chosen through a Survivor style competition. (Also, this was how Armen suggested doing it; he didn't remember that that was how we got W&V in the first place.) Please e-mail PG at the address in the sidebar if you'd like to participate, and if you wouldn't because your own blog takes up all your time, please mention it there so your readers will know. Thanks!

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Online Dictionary Review, Please

This Slate article should be updated to tell us which is the best online dictionary. I think it would help to settle some journal debates on authoritative hyphenation. Yes, you thought the Bluebook was exhaustive, but actually blueblooking is just exhausting.

UPDATE: This, too, is cool.

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May 14, 2006

Take a Clifford Chance

By the Sitemeter request of someone's googling "david schizer" federalist, I inform interested parties that at this year's Federalist Society Student Symposium banquet, the Dean of the Columbia University School of Law declared himself to have been the vice president of the Yale Fed Soc while a law student. The information appears to have duly noted on Dean Schizer's wikipedia entry. The De Novo post that the search had turned up isn't as informative as this one.

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May 13, 2006

Making Immigration Illegal

One aspect of the immigration debate that makes some advocates for illegal immigrants often unfairly suspect their opponents of racism is the relatively new distinction between legal and illegal immigration. After all, the preceding inhabitants of North America always have been dubious of the newcomers, beginning with the Native Americans, who were even stingier in granting visas than Congress is today. Unfortunately for their rhetoric, they didn't have the term "illegal" in their arsenal because until about 1924, most people who got on a boat and made it to the U.S. were immigrants without modification or qualification.

Before the Constitution put the power "To establish an uniform Rule of Naturalization" in Congress's hands, some colonies would provide benefits only to Protestant immigrants, while Catholics were allowed to come ashore only after the ship's captain had paid a surcharge on each of their heads. The Naturalization Act of 1790 limited citizenship to "free white persons," and even after U.S.-born nonwhites were recognized as citizens through the 14th Amendment, Congress in 1882 prohibited permanent residency by Chinese and other Asians, leading to the original "guest worker" programs in which certain aliens could come work in the U.S., yet never become citizens nor bring over their families. But pretty much any white person who showed up at Ellis Island would be processed, her name mangled and her possessions doused with the disinfectants of the day, and then sent off to whomever she claimed to be the acquaintance with whom she would reside. (Or at least this is the impression I've gotten from the Ellis Island and Tenement Museums.) In 1907, 1.25 million people were processed at Ellis alone.

The first significant restrictions on white immigrants came with the Emergency Quota Act of 1921, which limited the total annual number of immigrants to 357,802 but made many groups exempt from that quota. The Immigration Act of 1924 tightened it to 164,000, and also originated the modern system of having foreign consulates vet applicants and grant them visas, rather than simply telling ships that bore immigrants whether there was room left that year and making the ships that carried excess immigrants responsible for taking them back home. So one could say that only in 1924 did we begin to have illegal immigration as we currently understand it: movement into the United States without the required permission from our government. And until 1965, the federal government still discriminated mainly on the basis of national origin in granting visas.

Nowadays, almost every nation puts restrictions on the number and type of people who can enter it, including the countries that send the greatest number of aliens to the U.S., and America's history of immigration does not justify making the U.S. the exception to that rule. However, the categorization of legal versus illegal is a creature of contemporary circumstance, not a platonic or eternal difference. We must know who is entering the country in order to secure it from terrorism and other crime and to prevent an unmanageable burden on infrastructure, concerns that were much less when the ancestors of the Minutemen & their sympathizers entered America. These are concerns, moreover, that the governments of immigrants' own nations have, and that therefore should be understandable by all as legitimate ones. Nonetheless, as long as both sides of the debate prefer to decontextualize -- the pro-undocumented immigrant side arguing for the return of the 19th century open door (without the racism) and the anti- side behaving as though their presence in the U.S. is owed to an antique H1 visa -- I doubt there will be any amicable resolution.

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Today / 05.13.06

Today in History (1861) - Queen Victoria of Britain issues a "proclamation of neutrality," which recognizes the Confederacy as having the status of a belligerant under international law. Four years later in Texas, the last Civil War battle ends with a Confederate victory, more than a month after Confederate General Lee's surrender.

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May 12, 2006

We Can Access the Internets, Y'know

The evidence begins to accumulate that some professors either don't realize that the online realm exists, or don't know that their students have roughly the same reach in it that they do. Begin with A. Rickey's tale of constitutional law woe, in which his professor re-uses an exam question that not only appeared on a drive accessible to the class, but also included a model answer. In this thread about rumors that some UT 1Ls cheated on their conlaw exam, a couple commenters take the opportunity to note similar professorial incompetence:

The exam in question, Graglia's Con Law I, was three essay questions. Two of which were exactly the same questions he asked on the Spring 03 exam. No need to steal the exam when the prof gives it away. The best part though, one of those two questions was based on a real case, which Graglia helpfully gave the cite to in the body of the hypo.
"IrishLaw" (same as this IrishLaw?) says,
My second year at N[otre ]D[ame], our Business Associations prof said she was giving a short answer exam with some MC. She gave out a few sample MC problems to prep with. Sweet. On the day of the exam, she hands out the test, which was all MC. Fair enough. The kicker is, (1) the sample questions she handed out were from a past Stanford exam which she found on the web; and (2) our exam consisted of those questions on the old Stanford exam she didn't use as examples, which were readily available on the web complete with answer key.
Of course, before the test, a bunch of people had Googled the sample questions, done the rest of the questions as prep, and breezed through the exam. The lovely administration at ND didn't even have the courtesy to make the test pass/fail.
Thankfully, the closest I've come to anything like this is the professor who borrowed from a blog in the prompt for a writing assignment that had little-to-no effect on our grades anywa.

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Soloved the World That He Gave His Mis Begotten Exams

As mentioned on Concurring Opinions, Prof. Daniel Solove puts on his book reviewer beret to look at "The Multistate Bar Exam as a Theory of Law." The paper is posted on SSRN and will be published in the Michigan Law Review. It's short, mildly amusing and has a couple bits of information that I hadn't known, like that the MBE thinks burglaries can take place only at night. Pointing up more peculiarites like this would have made the review more biting: If law school doesn't teach us black letter law because it's not intellectually challenging*, and the bar review course doesn't teach us black letter law because the bar exam doesn't use it, then when will we learn it?

Alternatively, if Solove wanted to maintain his conceit of the book review with many citations to legal theorists, he should have invoked the insights of critical legal theorists. The anecdotal nature of the bar exam could be compared with the work of leading crits like Patricia Williams, who "uses stories -- from her own life, those she hears from friends and relatives, and those she reads in the news -- to personalize and contextualize the social, political and legal structures that we encounter in our lives." Yet the propounding of social change that appears to go hand-in-hand with CLT simultaneously contradicts the conclusion Solove draws of the Bar Exam's perspective:

The Bar Exam seems to be saying: �Here�s the law. It helps some people. It helps other people. And that�s it.� Questions such as whether the rules are just or whether or not they should be changed don�t matter. According to the Bar Exam, the law is, and there�s nothing else worth saying.
Heads up to the Article Editor responsible for Solove's piece: "Another reason I did not undertake a more systematic study of other bar exams was because each sample exam costs $15, and I was doubtful that my dean would offer me the funding for such promising research." Sorry, it's one of my peeves.

* At a margarita-fueled lunch the other day, a couple of 3Ls declared their intention never to give money to the law school until it promised to endow a black letter law professorship.

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May 10, 2006

A Cause I Can Support Wholeheartedly

A few days at Legal Aid is a surprisingly good preparation for starting one's summer associate position, particularly for someone like me who spent 1L summer as a research assistant. There are the obvious things that help, like gaining experience in working with full-fledged lawyers on a real case with real deadlines (I'm in a slow moment waiting for someone else's edits, but anticipate being here until the midnight run to the courthouse's night dropbox.) After two months spent mostly in my pajamas, having to get presentable and on the subway each day is excellent practice as well.

There's another useful element that I hadn't anticipated: trying to do good legal work for an unsympathetic client. Much as the big law firms work on behalf of huge pharmaceutical companies trying to keep up the price of HIV treatment medication, and major components of the military-industrial complex, Legal Aid inevitably gets its share of former drug dealers and other unappetizing folk. Appellate litigation is the way to go on cases like this, as one can disassociate from the facts of the entity represented and just focus on the legal questions.

If you really want to get me fired up for a lawsuit, however, let me work on a case against Ticketmaster. Please.

In a moment of hope that I would live to see it, I bought tickets for Tom Petty & the Heartbreakers and made the mistake of doing so on, assuming that it was the only online option. On the contrary, tickets also are available through the Nissan Pavilion website, the service on which ( appears to be much more customer-friendly. Ticketmaster wanted to charge me for the privilege of printing out tickets with my own ink and paper and sparing them the cost of doing so. I decided to forgo that for the free option of getting tickets delivered to my billing address within 48 hours of the concert; insert quick change of the billing address on my card so I'd actually be at it on that day. wasn't going to charge me for standard mail, offered the print-at-home option for free, and had the various service charges add up to $3.90 less than I was charged at


My grudge against Ticketmaster became really fierce several years ago when I tried to buy tickets to see Bruce Springsteen & the E Street Band, and was unable to get through by phone or internet, commandeered a friend's car to drive to an outlet only to find that it didn't sell tickets to concerts in different time zone, and generally felt mildly homicidal due to sheer frustration. The inability to handle a heavy load on their telecommunications that they know will be coming seems really inexcusable once you know that Ruth Gauweiler is monitoring such things. (WSJ, wire)

Yes, I realize the existence of and the simultaneous availability of shows on it and Ticketbastard takes away the best ground on which to sue Ticketmaster, i.e. its monopoly created through exclusive long-term contracts with venues. The Clinton Justice Department called this one correctly: the advent of the internet and widespread PC ownership and access allows competitors to bypass Ticketmaster's lumbering network of computers to which only the phone operators and approved outlets had access. Nissan Pavilion's system is also an unnecessary blow to a Note idea that I had already dropped last year, which was to look at the trend of self-ticketing by venues and whether that was itself a form of monopoly based on the essential facilities theory implied by the Supreme Court's unanimous affirmation of the 10th Circuit in Aspen Skiing v. Aspen Highlands, explicitly declared in that and other circuit opinions. A professor killed that thought by explaining that Aspen Skiing (though not explicitly overruled even by Scalia's opinion in Verizon v. Trinko, I whined) is so late '80s-early '90s and not to be relied upon by any 21st century antitrust writer.

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May 9, 2006

A Cynical Proposal

On my other blog, in response to my complaint that USF law school has way more attractive women than the other side of the Bay, a commenter wrote that he would eagerly take my job prospects and my women (neither are mine per se, but you get the idea). I have long believed that the inequalities of opportunity found in legal education in the United States is unjustifiable. Given that this is exam time for most law students, I offer this cynical proposal:

I dare any disproportionately ranked law schools to exchange exams. You heard me Hastings, USF, Stanta Clara, and Golden Gate. I think your students write exams as well as we do. I'm willing to take the Pepsi challenge to prove it. If professors from both schools are willing, I would love to see something like a committee of profs from the schools judging which property exam came from which school. Or, why not have an entire crim law exam graded by a "guest grader" from across the bay? Then see the results. Hell, there are so many ways to game this, the sky's the limit. It's not that hard to set up colluding faculty to give the same exams at different law schools unbeknownst to the students. You can even bring women over to take their exams here. Just a thought.

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May 8, 2006

Yale Law Call

Via email:

I am writing on behalf of The Yale Law Journal to tell you about a call for submissions that we think will interest you and the readers of your blog at

The Journal seeks to publish two Articles engaged in a dialogue on a single compelling legal topic. Selected Articles will be published in the same issue in the spring of 2007.

We encourage scholars to submit pieces in development rather than completed pieces ready for submission and publication so that the pieces that will evolve in response to each other. Interested authors should seek out a colleague in their field with a differing viewpoint who will join them in this project.

There is no subject matter limitation for submissions, but the topic should be both contentious and suitable to thorough and engaging discussion.

Each submission should include a partially developed paper of at least 5000 words and the author's curriculum vitae. The interlocutor should include a prospectus of at least 1200 words, as well as a curriculum vitae. Please send proposals via e-mail in MS Word format to the Features & Symposium Committee at The subject line should read: Debate Proposal: [Title]. All submissions must be received by August 1, 2006, and the Journal will respond by August 15.

We hope that you will help us spread the word of this exciting opportunity. I have attached our formal call for submissions to a separate email [PDF]. If you would like more information, please do not hesitate to email us at

Judging by the examples in the formal call, "compelling" seems to be synonymous with "stuff people argue about all the time, except with citations and statistics." So my recommendations to authors searching for topics would be: military versus civilian justice; standing to enforce legislation (jumping off Armen's remark about signing statements); the current status of morals legislation; Congress's ability to create uniformity among the states juxtaposed with the Supreme Court's ability to do so...

Posted by PG at 3:44 PM | Comments (0) | TrackBack

Columbia Street Cred

These students don't seem to have been afflicted by "the liberal guilt of middle-class college kids" so much as the out-of-shape boys' fear of "a big, built guy."

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May 5, 2006

Answering the Question

Milbarge at BTQ poses a series of question:

For example, could Congress punish chi1d p0rn0gr@phy involving girls more harshly than c.p. involving boys? [...] What if we had a "girl/boy disparity" in penalties for c.p.? As a practical matter, would it be an effective deterrent? Would offenders switch to boys? Did crack users switch to cocaine?

Leaving that aside, would it be constitutional? Note that the federal sentencing guidelines already provide for a sentence enhancement for choosing a "vulnerable victim." It's often applied to the elderly, the young, and the disabled or mentally challenged. Are those okay only because none of those are "suspect classes"? Could a court simply find that girls are especially vulnerable to certain kinds of crimes, and sentence accordingly?

I haven't thought a lot about it, but my hunch is that it wouldn't be constitutional, per Craig. I think that's even more likely to be the outcome if strict scrutiny applies, post-U.S. v. Virginia (1996). I think it's probably moot since I doubt the factual foundation necessary for a sex distinction in sex crimes wouldn't really pan out. But there's also something... I don't know... almost visceral, just a sense that this isn't the right way to run a railroad. What if we were talking about sex-based punishments for (adult) rape? And if that doesn't sound right, either, what does that mean for "hate crimes" laws? Why are they okay? And if they're not, why can't women go topless in public?

Hate crime law is based on the perpetrator's motivation. One can commit a hate crime against a white, middle aged, abled, heterosexual male if the motivation for the crime was hatred of his race, age, ability, orientation or gender. As far as I know, there's nothing in hate crime legislation that mandates higher penalties for those who perpetrate crimes against minorities, the young or old, disabled, gay or female. Higher penalties may be given by judges or juries just because we're accustomed to thinking of bigotry as directed only against the less powerful, but I don't think it's in the text of the hate crime legislation.

Sentencing law distinct from hate crime law does provide higher penalties against those who target the most vulnerable, but this is not due to the perpetrator's motivation. Rather, it is an attempt to shift the incentive to go after very young, old, physically or mentally disabled targets. Normally these are the easiest people against whom to commit crimes -- hence the phrase "like stealing candy from a baby." Enhanced penalties, however, change the equation of risk.

I don't think statistics show women are more likely to be victims of crime, especially of stranger crime. Women are more likely than men to be sexually assaulted and assaulted by intimates, and VAWA was a product of states' prosecuting these crimes insufficiently (just as incidents of under-enforcement like that in Mississippi Burning birthed federal civil rights and hate crimes legislation), but child pornography already is a federal crime and I doubt that anyone pursues pornographers who exploit girls less vigorously than those exploiting boys. That we typically think of women as the victims of sex crimes probably is balanced by the existence of NAMBLA, which conservatives like Hadley Arkes hold up as reason to ban all homosexual sex.

Women have the right to topless equality in D.C. and New York State due to court rulings. However, gender- discriminatory rules on nudity might get past heightened scrutiny* based on nuisance, the rationale Texas uses to bypass the Equal Rights amendment to the state constitution in prosecuting women for toplessness. Also, recall that the Supreme Court has found women's exposed nipples to be a plausible threat to public health, safety, and welfare, and I doubt that Roberts and Alito are going to switch from Rehnquist's and O'Connor's postion on the matter.

* U.S. v. Virginia didn't create a strict scrutiny standard for gender. In writing the majority opinion, Ginsburg dared only to go as far as demanding that the state show an "exceedingly persuasive justification" -- and even that produced a Rehnquist concurrence -- rather than using the language of "narrowly tailored" and "compelling governmental interest," phrases that applied to gender discrimination likely would have lost her Kennedy's vote.

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May 2, 2006

At Least Dell Gold Support Sent a Guy Over

A classic exam period nightmare befalls A. Rickey of Three Years of Hell, and the culprit is his once-beloved Alienware laptop. Admitted students shopping early for your computers, take note.

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