August 31, 2006

Fascist vs. Fascist vs. Phillies Fans

In the Chambers of Justice Thomas:

This case arises from the abuse of the English language by various parties, including members of the Executive and Legislative branches of the Federal government. The President and Vice President, as well as many prominent Republicans, are now using the term "Islamic Fascists" to describe the enemies of the current war on terrorism. See, e.g, ABC News, "Republicans Target 'Islamic Fascism.'" On the opposite side, Professor Leiter remarks that his politics don't fit in the continuum of "crypto-fascist on one end to moderates with tepid liberal leanings on the other."

In 1946, Geroge Orwell remarked on the use of the English language for political gamesmanship in his essay, Politics and the English Language. As it relates to this case, he wrote:

The word Fascism has now no meaning except in so far as it signifies "something not desirable." The words democracy, socialism, freedom, patriotic, realistic, justice have each of them several different meanings which cannot be reconciled with one another. In the case of a word like democracy, not only is there no agreed definition, but the attempt to make one is resisted from all sides. It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning. Words of this kind are often used in a consciously dishonest way. That is, the person who uses them has his own private definition, but allows his hearer to think he means something quite different. Statements like Marshal P�tain was a true patriot, The Soviet press is the freest in the world, The Catholic Church is opposed to persecution, are almost always made with intent to deceive. Other words used in variable meanings, in most cases more or less dishonestly, are: class, totalitarian, science, progressive, reactionary, bourgeois, equality.
I could not have said it better myself. This is an abuse of the English language regardless of the reasons. It's a bit ironic that Professor Leiter uses the term in a comment to a post about the politics of Howard Bashman*, who as we all know must be a Fascist for supporting the Philadelphia Phillies.

For the foregoing reasons, I refer the matter to the full court for consideration.

* I have never read any post by Mr. Bashman and thought to myself, "Huh, that's a strangely liberal thing to say" whereas the opposite is quite true. However, as it relates to the comment that his blog is non-partisan, I wholeheartedly agree. That is, I would not in my wildest dreams characterize his posts as having a blatant political agenda. C.f. David Bernstein at the VC.

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August 30, 2006

In Memoriam - Jeff Williams CLS '05

With the recent closure of the closest thing to a Columbia Law School blog, I'll pull in De Novo yet again, this time for a far more serious announcement than the stupidity of a NYTimes opinion. From Dean of Students Michelle Greenberg-Kobrin:

I am very sorry to report the news that one of our recent graduates, whom you may remember from your first year, Jeff Williams ('05), died suddenly on Monday night of a cerebral hemorrhage.
A memorial service will be held this Thursday, August 31, at 1:00 p.m. at the Scarsdale Synagogue Tremont Temple, located at 2 Ogden Road in Scarsdale, NY. The family has requested that flowers not be sent.
I am sure we are all saddened by this loss to the CLS family.
Jeff worked on the same journal that I did, where he welcomed new staffers and published an article therein that complicated my belief that Lawrence v. Texas would have been best settled solely on sex discrimination grounds. Outside the annex, Jeff patiently and graciously discussed the correct response to the Solomon Amendment with me, despite our disagreement. In his less intellectual contributions to my first year, Jeff also was a talented member of the Law Revue cast, and an excellent sport about back-up dancing for karaoke renditions of "Beer for My Horses." 3L year is supposedly time to disengage from school, but Jeff remained an enthusiastic member of the CLS community, and is a 2005 alum who will be missed by many '07 grads besides me.

UPDATE: Jeff's passing is noted at Sports Law Blog. Memorial contributions may be made to Columbia Law School, Jeffrey Williams L�05 Memorial Prize, c/o Alumni Relations Office, Columbia Law School, 435 W. 116th St., Box A-2, New York, NY 10027; the Law Revue paid tribute at the Fall 2006 show.

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Bending My Vow

Having recently decided to abandon my other blog for a few months, I can't start posting there now. But wow, this is stupid. I wonder how many of the "71 percent of respondents in a recent Associated Press-Ipsos poll [who] said the country is on the wrong track" were motivated by the terrifying advances of same-sex marriage, violent videogames, women in pantsuits and other cultural threats to Our Way of Life -- none of which can be attributed to the Bush Administration. The economy, social safety net and foreign policy may not be great, but you can't fault the current president for a certain group of people's fear that Hillary Clinton could be our next Commander in Chief. The conclusion is the most aggravating part of the piece:

Part of Mr. Bush�s legacy may well be that he robbed America of its optimism -- a force that Franklin Delano Roosevelt and other presidents, like Ronald Reagan, used to rally the country when it was deeply challenged. The next generation of leaders will have to resell discouraged Americans on the very idea of optimism, and convince them again that their goal should not be to live with their ailments, but to cure them.
There are plenty of ailments that Bush has sought to cure. With him in charge, the estate death tax no longer threatens to wipe out the legacies of millionaires. Saddam Hussein no longer threatens Bush Sr., and will be forced to take responsibility for his otherwise-unrecognized part in the September 11 attacks. Embryonic stem cell research no longer threatens to turn discarded embryos to a potentially useful purpose; Justice Ginsburg has the girls' room to herself; $125 million haven't gone to non-abortive reproductive services in developing countries. If you really dislike taxes, Saddam Hussein, failures to treat every egg with sperm as sacred, balancing tests and the most indirect connection to abortion, Bush is a nearly solitary bulwark against the sodomites, barbarians and increasers of the minimum wage. For you, he is no cause for pessimism, but perhaps the only reason not actually to despair.

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August 29, 2006

Today / 08.29.06

Happy 70th birthday to John McCain, and 220th anniversary of Shay's Rebellion.

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Fall, When 1Ls' Thoughts Turn

I know that torts class has started at a Virginia law school, based on multiple hits from Google searches for Hammontree v. Jenner. My opinion on the case hasn't changed; indeed, the only aspect that surprises me is that Will Baude, properly belonging to the Chicago school and taught at Posner's knee, disagreed with me.

Surely there is far more utility to society at large, and not just to the individual epileptic, when someone with a well-controlled condition is a highly functional member of that society, rather than one who is hobbled by the fear that the condition might nonetheless rear up unexpectedly, and that if it does so, he should be strictly liable for any damage that results. Negligence is a different matter, and I'm inclined to apply strict liability to individuals only in the criminal law, and that only when the activity is of questionable social value (e.g., extra-marital sex with or the sale of alcohol to people who turn out to be under the proper age).

But then, while Will preferred the merely muddled world of contracts (and I suspect property as well), I found myself with a sick enjoyment of subjects like torts and criminal law. The exam questions tended to be extraordinary piles of bad behavior, literally fireworks and fires of multiple malfeasances, that made me want to shake my head and say "Oh no you di'n't!" as I issue-spotted.

UPDATE: Will's response commits the law school sin of challenging both the framework for analysis and the hypothetical itself. The question in Hammontree is supposed to be about whether to apply negligence or strict liability; the case is framed so that we are not to consider the epileptic negligent. Will does a nice litigator's job of calling him a "quasi-medicated epileptic," an "imperfectly medicated epileptic" "who knows himself to be prone to fits of epilepsy" and is a "chronically and uncontrollable dangerous driver," but Jenner in fact had not had such an attack 14 years prior to the accident and was deemed safe to drive by the DMV. Will proposes insurance as the solution, and Hammontree did argue "that the insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis." But if they did, insurance rates would be so high, particularly for someone with even an ancient history of medical problems, that Jenner never would have been able to obtain any.

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August 27, 2006

No Freedom from Article III Standing to Sue

Although only on petition for a Cert, I expect my fellow Justices to take up Grace v. Freedom from Religion Foundation, 06-157 during our first meeting in late September. You may read a cached version of the SG's petition here. I have not been able to find a PDF of the petition. I will not make the same mistake that Justice Scalia made in the Pledge case by revealing my personal views before the case ever reaches the Court. However, suffice it to say, I will vote to grant Cert. For now, I want to flag this case for those interested in A3 standing and the Faith-Based initiative.

-- CT

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August 25, 2006

Don't Hate Me Because My Homeland Loves Me

David Bernstein has stirred debate over whether Israel gets grief for policies on which other countries, particularly Japan, get a free pass. The short answer seems to be that a) Japan doesn't get a free pass, Bernstein just hasn't been paying attention; and b) Israel's situation is unique in ways relevant to whether the criticism will have political teeth. (Particularly in Israel's having been formed as a nation on land recently occupied by non-Jews, and having a large minority to contest the racial policies.) I'm more interested in the correlation between a nation's sense of race and how that affects others' perceptions of that race.

For example, I assume Bernstein doesn't like the ethnocentric assumption that any Jewish American must be foremost Jewish, and thus pro-Israel, and that Jewish-Americans will sacrifice American interests to protect Israeli ones. This thinking sometimes underlies criticism of neo-conservative foreign policy; instead of just critiquing the substance of the policy, a few oppose it based on the perception that it was shaped by people who are more concerned about Israel than about the U.S, and therefore suspect on that basis. The Israeli government itself doesn't seem to assume that the Jewish diaspora will be uniformly supportive of its policies, but Jewish organizations do invest in tying Jewish identity to Israel, and some Jews claim if they fail to support Israel's government, they are accused of self hatred.

Yet a common justification for the internment of Japanese-Americans during WWII is that the Japanese government thought they would be a fifth column, and therefore it was reasonable for the American government to think the same, especially after the U.S. discovered that this was the Japanese government's view. This was an essentially ethnocentric error on both governments' parts: they didn't believe that American identity could be strong enough, even in people born and raised in the U.S., to outbalance Japanese identity. A similar error seems to be made in discounting Jewish Americans' opinions on Israel.

I think the nation's sense of race, in both Israel and Japan, contributes to misperceptions of people descended from each. (Inasmuch as modern Israel is connected to the Biblical Israel from which all Jews descend.) Because being Jewish or ethnically Japanese is so central to being Israeli or Japanese, regardless of niceties like birthplace, residence and citizenship, the relationship of American Jews or Japanese Americans to Israel or Japan is regarded with more suspicion. The legal regime in another country should not affect how we see anyone in the United States, but the racialist policies themselves are founded on generalizations, and Americans are not always better than other peoples in avoiding discrimination on such a basis.

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August 23, 2006

Thomas, J., Sitting by Designation

In May I posted about the possibility of role-playing a current SCOTUS justice in a seminar that looks at current cases pending before the Court. Well, yesterday I and my co-justice were selected to be Justice Thomas for the remainder of the year. I know that Thomas actually asked questions during a cross-burning case, but are there any other cases where he's spoken during oral arguments? Also, does anyone have a copy of a 1793 English Dictionary?

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August 20, 2006

News Flash: Left and Right View Same Thing Differently

For a veteran of Senate staffing, A. Rickey sounds almost naive about politics in this post about state Defense of Marriage amendments.

Opponents of these Defense of Marriage Amendments (or whatever the latest Virginia iteration is calling itself) claim that there is a significant risk that, should the measures be passed, a radical conservative judiciary is going to expansively read the provisions to enforce them to the utmost bounds of their meaning, knocking out not only privately-contracted civil unions (plausible) or state-sanctioned domestic partner benefits (possible), but also private contracts between homosexuals on the ownership of corporations. Why? If those states have judiciaries that will twist the text beyond the bounds of reason to restrict gay rights (so much so that they'd abrogate many contracts entered into by non-married heterosexuals), why did the voters of these states feel they needed DOMAs in the first place? Who are these justices just about to give progeny to Goodridge that yet would overenforce a ban on civil unions?
I wonder how effective these arguments will be in campaigning against DOMAs. Certainly there is a risk that moderate voters will see opponents bewailing the coming conservative judiciary to be at least partially crying wolf, isn't there?
This argument requires two questionable assumptions.

First, that there was a substantial correlation between the actual politics of the state judiciary and the voters' perception of how judges (both state and federal, incidentally) could change the law. I can't say that, in the Texas and Virginia statutes and amendments for which I've witnessed in-state debate, much rhetoric was devoted to pointing out particular liberal state judges who would be the ones to marry Adam and Steve. Rather, the debate was focused more on how out-of-staters would drag their Vermont civil unions* or Massachusetts marriages to Our Great State, and some judge -- more often assumed to be a federal outsider than a duly-elected-by-the-people (in Texas) or appointed-by-the-governor (in Virginia) state judge -- would say that we had to recognize them. Or, most nightmarish of all, and the reason to amend the federal Constitution, the U.S. Supreme Court would impose gay marriage on everyone like they did busing and taking girls into military academies. Voters can be convinced that an evil is approaching without thinking that the evil wears the robe of a state judge.

Second, that opponents and proponents of DOMAs have the same perception of judges. The only way "moderate voters will see opponents bewailing the coming conservative judiciary to be at least partially crying wolf," will be if said moderate voters can't distinguish between the guy who told them that gay marriage would be forced on them by judges, and that was a bad thing, and the guy who's saying restrictions intended to prevent gay marriage will be over-stretched by judges, and that is a bad thing. Obviously, people at different ends of the political spectrum will view the same thing differently. Even in Virginia, there were people who were saying that Clinton was too damn conservative simultaneous with the cries that he was a demon from the Left. Opponents of DOMAs rarely agreed with supporters that gay marriage was on the doorstep, and supporters of DOMAs rarely agree with opponents that domestic violence laws must apply now only to married couples. Some people were convinced that the Supreme Court would void the Solomon Amendment because the Court is so pro-law schools/ homosexuals, while others had no trouble accurately forecasting the outcome in FAIR v. Rumsfeld. And so on and so forth.

So to answer A. Rickey's questions:

If those states have judiciaries that will twist the text beyond the bounds of reason to restrict gay rights (so much so that they'd abrogate many contracts entered into by non-married heterosexuals), why did the voters of these states feel they needed DOMAs in the first place? Who are these justices just about to give progeny to Goodridge that yet would overenforce a ban on civil unions?

There is no such judiciary in any one person's mind. However, put the minds of a liberal and of a conservative together, and the full parade of horribles with plenty of self-contradictions will spring forth. Perhaps predictably, A. Rickey seems to assume that the conservative voters had the correct view of their judges, and knew them to be dangerously close to hitching Heather's two mommies. Under this assumption, it certainly is crazy for DOMA opponents to think these highly liberal judges will suddenly turn around and over-enforce DOMA. Being unburdened by the notion that conservative voters always are right, however, I find the possibility closer to sane.

* Doesn't Vermont Civil Union sound like it ought to be a Ben & Jerry's flavor?

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August 17, 2006

Techies and Kiddies

or, The Internet Isn't for THAT Kind of Porn.

Some think that AOL's release of searches has been improperly attacked as a breach of privacy. Under this argument, the fact that the New York Times could identify a specific user from the collection, and that Slate could identify seven types of searchers plus a joke, is not much reason for concern. Nonetheless, I am glad that I never searched my own name nor any portion thereof on AOL, which would have made my "anonymizing" number useless. One person asked me whether I consider it a horrible breach of privacy for me to write posts wondering how a particular search drove someone to my site. I don't think it is, particularly because I don't publish anything that identifies the searcher, nor do I have multiple searches collected from a single user (as far as I know). However, in the spirit of the NYT's remark, "There are also many thousands of sexual queries, along with searches about �child porno� and �how to kill oneself by natural gas� that raise questions about what legal authorities can and should do with such information, " I'll put up the (publicly available, again unlike AOL's) information of one person who Googled to De Novo:

Domain Name: ? (Network); IP Address: 69.236.180.# (SBC Internet Services); ISP: SBC Internet Services
Location: Continent : North America; Country : United States (Facts); State : California; City : Hayward; Lat/Long : 37.6503, -122.073 (Map)
Language: English (United States) en-us
Operating System: Microsoft WinXP; Browser: Internet Explorer 6.0 Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.1; SV1); Javascript: version 1.3
Monitor: Resolution : 1024 x 768; Color Depth : 16 bits
Time of Visit: Aug 17 2006 7:20:37 pm; Last Page View: Aug 17 2006 7:20:37 pm; Visit Length: 0 seconds; Page Views: 1
Referring URL:
Search Engine:
Search Words: topless minors pics
Visit Entry Page:
Visit Exit Page:
Out Click: Time Zone: UTC-8:00; Visitor's Time: Aug 17 2006 4:20:37 pm; Visit Number: 252,914

Perhaps unfortunately from the searcher's perspective, the post clicked upon has no actual pictures of topless minors. Instead, it is about distinguishing one case of a minor's disseminating topless photos of herself from another case in which two young men disseminated such photos of their underage girlfriends. On the other hand, maybe this was the type of information Visitor 252,914 wanted, and s/he perused it with interest before going back to the initial search.

It's difficult to say, and using Google searches seems more likely to catch the idle researcher (I tried the search myself and found this article) or the imbecile pedophile (no intelligent pedophile thinks he'd find such images through a Google search for them). I'd prefer that my Google searches for Child Pornography, while considering this absurd lawsuit, not be used as reasonable cause to take my laptop apart.

That technology can be used for both intellectual as well as more dubious purposes is no surprise, but the legal treatment thereof still gets debated. Boing Boing (by way of Bamber) has the story of how Adrian Lyne managed to get a topless Lolita for his 1997 remake:

Since the filmmakers were not legally able to film their underage actress topless in a sexual situation, they filmed her with a beige body stocking with X's of electrical tape where her nipples would have been. They then re-filmed the same scene with a rather busty (but entirely legal) 18-year-old actress. My friend was then given the task of seamlessly tracking and compositing the nekkid 18-year-old bosoms onto the 14-year-old body.
The story was compared to that of a 38-year-old fine art student in the UK who was charged with possessing indecent pseudo-images of children, after he used software to reduce the breasts on porn stars and dress them in school uniforms. A London Times article about him noted a similar case:
Four years ago, a lorry driver from Rutland admitted eight specimen charges at Leicester Crown Court of making an indecent pseudo-photograph of a child.
The amateur photographer, who was fined �100 for each offence, had taken snapshots of local children -- some taken at village functions -- before superimposing their faces on to the bodies of adults in explicit poses and storing the images on his computer.
Yet when we contemplate the actual harms of the crime, the truck driver's seems more problematic than the student's. The student didn't use children in order to produce his images, while the truck driver has pasted the faces of children -- not porn stars -- onto adult bodies. As long as potential child-molesters stay far away from children, they can have their fantasies and photoshop all they want; when they start hanging around children, photographing them, and storing the images of children to whom they could have access, they come closer to actual harm. BoingBoing commenter Connerss says,
In the past, the question about child pornography was always related to the child being involved, and the harm done to the child. Now that these things can be created without harm to a child, I think the question is whether the images increase or decrease the desires of those that are sexually interested in children. Do the images decrease the urge to actually molest children, and thereby give them an ou[t]let (however disgusting) for this problem? Or do they increase the urges? In a free society, in the privacy of your own home, if no one is hurt, can you draw what ever image you want? If beastiality [sic] is illegal, do people go to jail for drawing pics of people with horses?
First, this ignores one of the alleged harms of child pornography: that it is used to entice children into sex, convincing them that because other kids do this (see, they're in the picture!), it must be OK. Second, I don't think we can allow the question of whether images increase one's illegal urges to decide whether such images can be produced, as long as their production does not harm. I dislike pornography that pretends to depict women being degraded, abused and killed, and think that it may well increase some people's urges to degrade, abuse and kill. But TastyTrixie agress with the outlet possibility. "This is what I love about pornography: it's a way to stage and get off on taboos without actually violating them in real life." She takes seriously the distinction between staging taboos and violating them, and how the latter creates harm; she does not see taboos as existing for repressed others, but for herself as well.

In short, I think the student should not be prosecuted nor penalized (though encouraged to seek psychological help); the truck driver probably should have gotten more than a fine, considering that he was using images of children for prurient purposes. Had the truck driver distributed his pictures, that offense should have been treated like any other distribution charge, because yet another potential harm of child pornography is that if distributed, the child may have to see the disturbing image of herself. Even if it is only the picture of her face on another's body, it still is an improper, unauthorized use of her likeness.

U.S. law, of course, protects against prosecution for what the British call "pseudo-images." Ashcroft v. Free Speech Coalition invalidated Section 2256(8)(B) of the Child Pornography Prevention Act of 1996, which would have banned sexually explicit images that appear to depict minors but were produced by means other than using real children. Notice that under this language, the student's pictures would not be illegal, but the truck driver's would be more questionable, as they did use real children. Kennedy's opinion, joined by Stevens, Souter, Ginsburg, and Breyer (with Thomas concurring only in the judgment, due to his concerns about advancing technology), has some classic Kennedyisms: "Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach."

The Shorter Anthony Kennedy is that films that depict legal-but-looking-younger actors or technologically-made-obscene minors can have redeeming value, and that the concerns about pornography's being used to seduce real children, or to whet the pedophile's appetite, are not sufficient to ban it. The affirmative defense that the pornography can be proven to have used only adult actors is not enough because it cannot be raised for the charge of possession, nor for virtual child porn.

The 1997 film version of Lolita actually might provide a rebuttal to O'Connor's statement in Part II of her opinion, which Part Rehnquist and Scalia joined: "Respondents provide no examples of films or other materials that are wholly computer-generated and contain images that 'appea[r] to be � of minors' engaging in indecent conduct, but that have serious value or do not facilitate child abuse." O'Connor would have overturned the ban on "youthful adult" porn, but retained that on virtual child pornography, which would give us a legal regime similar to the UK's. (I'm fairly sure the Brits have their versions of Barely Legal.)

As usual, I find the British law overly restrictive. Legislation like the ban on virtual child porn, or on hate speech unconnected to a crime, jumps too far ahead of the evil that is sought to be prevented. While American "snuff the approach of tyranny in every tainted breeze," the UK government punishes the approach of harm in every action that may lead to it.

PS: I see Second Life and think
Galt's Gulch!
I hope they're paying taxes on all this.

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August 16, 2006

Today / 08.16.06

Today in History (1841) - U.S. President John Tyler vetoes a bill which called for the re-establishment of the Second Bank of the United States. Enraged Whig Party members riot outside the White House in the most violent demonstration on White House grounds in U.S. history. One hundred twenty five years later, the House Un-American Activities Committee begins investigations of Americans who have aided the Viet Cong with the intent of introducing legislation to make these activities illegal. Anti-war demonstrators disrupt the meeting and 50 people are arrested.

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August 9, 2006

If Ayn Rand Hadn't Been a Fundamentalist Atheist

She probably could have written this supposed manifesto of conservative Republicanism. And the reference to the Almighty is a fairly glancing one, essentially just to get in the natural rights argument, with no citation of Christianity or any other faith's beliefs regarding actual policy.

I sincerely don't understand why someone who honestly believes that the use of free will is a paramount value would support the conservative Republican crusades against legalized abortion, non-reproductive sex, flag-burning, violent and sexual culture, etc., unless his understanding of "God-given free will" is that the government is supposed to keep us from doing stuff that God hadn't intended us to do. If Tom Coburn is one of your most admired politicians, clearly God only gave us free will to keep gays from adopting children and lesbians out of the little girls' room.

I can see the moderate Republican getting more mileage out of the Sharon Statement, because the part about the genius of the Constitution can be used as cover for being indifferent to the aforementioned crusades while fiercely supporting the necessity of keeping judges from being the ones to legalize abortion, pull Lawrence and Johnson out of Texas jails and allow Grand Theft Auto to be sold. (Although inasmuch as the Statement only talks about separation of powers in terms of federalism, the moderate Republican will have to throw in another tenet to cover her disdain for state judges' undemocratic protection of civil rights and liberties.

Seriously, is there some strand of genuine and consistent libertarianism, rather than merely capitalism uber alles, in mainstream conservative Republicanism? From what I can tell, they don't like the minimum wage even when imposed locally and would happily resurrect Lochner's economic substantive due process to fight such regulations if they could. But they simultaneously don't like SDP to protect civil liberties from exercises of state police power. This of course is just mainstream liberalism in reverse, but I have to say that the argument for allowing the state to regulate our economic relationships, while having a higher barrier against the state's regulation of non-economic relationships, seems reasonable to me.

I know at least one Republican who maintains a fondness for Rick Santorum due to the senator's having once gotten a jab at a privacy advocate who used the cliche about keeping the government out of people's bedrooms. Santorum said something like, "So suppose a man meets a woman, takes her out to dinner, brings her home, puts on romantic music, leads her into his bedroom and asks her to ... clean it for less than minimum wage, would you want to keep government out of the bedroom?"

Personally, I would say that if wages were involved, the government may be; if there's no legal tender handed out and nothing to be reported to the IRS, the government generally should avoid regulating clearly consensual relations among adults unless the behavior would create a direct burden on society (poorly done S&M that lands people in the emergency room, for example, though I don't foresee legislation that mandates safewords).

Libertarians can be anti-legalized abortion, not only regarding Roe but on the merits of the issue, if they believe that fetuses are legal persons whose rights are being violated. Otherwise, there's precious little room for doctrines of free will and liberty to be used in support of legally enforced cultural conservatism.

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August 8, 2006

Today / 08.08.06

Today in History (1942) - In Washington, DC, six German would-be saboteurs are executed. On the same day, the Bombay session of the All India Congress Committee passes the Quit India resolution. The British promptly imprison most of the AICC, and a civil disobedience movement across India begins.

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August 7, 2006

Rapped for Rapanos?

Is it safe for me to assume that in Dahlia Lithwick's dippy review of Justice Kennedy's ABA speech, when she says,

Kennedy's inability to find certain, easy answers and his tendency to hold grandiose hopes for the law are fodder for his detractors. This is the Kennedy of Casey, and Lawrence, and Rapanos, and it's the Kennedy that plows up fields of constitutional law and sows seeds of confusion and inscrutable grandeur in their place. This is the Kennedy who drives conservatives nuts with his notion that the courts must fight injustice, regardless of the messiness that ensues. But as he concludes with the charge that our freedom rests on our ability to sell the world on democracy, the crowd is on its feet.
she means Roper, not Rapanos? I know that Chief Justice Roberts was irked by Kennedy's concurrence, which remanded to 6th Circuit with a request for a nexus search, but I was unaware of this being a major source of controversy, if only for the fact that here Kennedy did vote with the conservative majority. In Roper, on the other hand, Kennedy wrote the majority opinion for the liberal side of the Court, and the NRO types have gnashed their teeth over the evolving standards doctrine, claim of national consensus, overturn of Stanford v. Kentucky precedent and judicial shout-out to international law contained therein. I invite the Kennedy-hatas among De Novo readers to comment on which of these was their particular annoyance, or if I left something out.

Notwithstanding Roberts's frustration over the failure to guide lower courts -- which points to less distance between him and Scalia than one might think -- Rapanos hasn't gotten anything like the response Roper did. I seriously doubt that if the Clean Water Act somehow arises in state court, a judge will pull a Parker and argue that Kennedy should be disregarded because he got the Constitution wrong. I've been in at least as Federalist-heavy an atmosphere this summer as I am at law school, but haven't heard much about Rapanos aside from a comparison to Finding Nemo (the dissenting justices' idea that because all water eventually becomes interstate water and therefore under the purview of the Clean Water Act, being similar to the theory that Nemo's jump into a watery toilet will get him to the watery ocean).

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August 3, 2006

Help PG Find Land Rights in American History

Since a quick Amazon search didn't turn up anything, I thought I'd check with De Novo readers:

Does anyone know of a good book that reviews property rights, particularly those in land, in the history of the area that is now the United States? Having recently discussed Native American losses with a friend (one who is strongly of the opinion that there's no reason to care about them), I've been thinking about the difficulty in translating one group's conceptions of land rights for a group with no such conceptions. There's also the use of land reform -- often disastrous, as in Communist nations' collectives or Zimbabwe's cronyist incompetence, but sometimes helpful, as in South Korea and Taiwan -- to enact social justice. I suppose the Homestead Act would be the major U.S. land reform, one that embedded the not-wholly-voluntary transfer from Native Americans and others into the government's grants to white citizens. But that seemed less of a social justice initiative than an attempt to get people living on newly acquired lands so they would have a stake in defending them from the peoples recently removed. The United Kingdom seems to have been engaging in land reform quite recently, and a Sunday Times piece claims that the old aristocracy and landed gentry still own 30% of the land. Or at least the land whose ownership anyone knows for a certainty; apparently the English and Welsh keep lousy records, whereas the Scottish are better. (The article is quite fun to read, if for no reason other than the writer's terrific scorn for titled and acred men.)

Just now I was reading TNR's review of Eric Foner's Forever Free: The Story of Emancipation and Reconstruction. The reviewer says (emphasis added),

Foner therefore begins the slavery chapter (the first, and the longest, in the book) with an account of General Sherman's meeting with twenty black ministers (most of whom had been slaves at some point in their lives) in Savannah, Georgia in early January 1865. Here we learn of the richness and the density of black hopes at the moment of emancipation. Defining freedom as the opportunity to "reap the fruit of our own labor, and take care of ourselves," one of the ministers, speaking for the group, thought it necessary "to have land, and turn it and till it by our own labor." Three days later, Sherman issued his Field Orders No. 15, reserving 400,000 acres of prime plantation land along the coasts of South Carolina and Georgia for exclusive black settlement, to be divided into forty-acre plots and made available to black families together with the use of army mules (the basis of the expression "forty acres and a mule").

Rarely have the aspirations and sensibilities of slaves and freedpeople -- or of any working people -- made themselves felt so directly on public policy, and toward what were unmistakably revolutionary ends. The freedpeople had some allies in the national government, and also among the Northern public, who supported land reform not only to place black freedom on a secure basis but also fully to break the back of the antebellum slaveocracy and the plantation system over which it had presided: to create in the South a society more resonant with what they valued in the North. But land reform threatened property rights throughout the nation, in a way in which the abolition of property in slaves never quite did; and so those allies were relatively few in number and summarily defeated. The social revolution of the middle period would have clear limits.

I'd really like to read a book that mixes history with political philosophy to explain how people at different times and places on the continent understood the ownership of land. There's a kind of fictional/ anecdotal reason to believe the sentence I bolded, inasmuch as the real fury and fear of loss in the Civil War and Reconstruction-set novel Gone with the Wind is directed at the threat to the heroine's home and especially land. The author may have done this so the protagonist would be sympathetic to readers, particularly those whose families had never owned slaves but had owned land; Scarlett's determination that she would burn Tara down and salt the earth before letting her enemies take it at tax auction is much more palatable than a similar attitude toward her slaves would have been. But it's still socially destructive, and though obviously much less serious than the worst violation of individual rights, not something that we would find understandable if we had less a sense of land rights.

Posted by PG at 11:59 PM | Comments (4) | TrackBack

Back To Normal

I would like to apologize to De Novo readers for the service outage. De Novo's host, Hosting Matters, decided to move us to a new server because we were having a "negative impact" on the old one. When they did so, they failed to copy over "about six tables" of the database that drives us here. One might think that a server move entails transfering all the tables in a database, but I guess I have unreasonable service expectations from a hosting provider.

My thoughts on HM's technical support are here. Suffice it to say, I'm not at all pleased by their attention to detail, nor the fact that it took over a day to catch the error. Or, for that matter, their "blame the customer first" service policy.

Of course, I'm sure that our Survivor contestants can survive this problem.

Posted by Tony at 10:02 AM | Comments (1) | TrackBack

August 1, 2006

I... I will Survive (Survivor: Parody Style)

The hardest part of finding a song to write a parody of is... wait... I screwed that up.

It's hard to find the right song. Some perfect songs are too short (Down Under, by Men at Work)... and some easy songs are just a little too gay (Part of Your World, the Little Mermaid).

The perfect song, of course, is Piano Man. Mostly because I know all the words, but also because it rocks. As for the topic, how can I write a law school parody about something other than 1L life?

So, without further ado, my uplifting song of hope for the 1Ls, sung to the tune of Piano Man, by Billy Joel.... Is... This Song... Called... Ummm.... "The 1L Song." (Oh, that's just terrible):

(Piano noises...Then some Harmonica...)

The first thing you'll learn as a 1L is
You�re not in undergrad, anymore;
Law School Barbie is the archetype,
As she brags about her LSAT score.

She says, �Have you heard that I got a 170?�
I say, �No, but I know you're renowned
�Cause I�ve heard that you drank, like an undergrad skank
Here, the rumors, like you, get around.�

(It should say) Abandon All Hope Ye Who Enter Here
Instead of The Truth Sets you Free.
Just pretend that you care about precedent,
Long enough to earn your law degree

Oh, la la la, de de da
La la, de de da da dum

Now learning the law�s not for everyone
As many 1L�s will agree
But the money that�s waiting keeps students debating
Until they sign with V&E

So in three years you�ll be earning six figures,
And your fortune will be justified.
Yes they�ll pay you for being an asshole
But that�s not for you to decide

Oh, la la la, de de da
La la, de de da da dum

Now problems arise for the 1Ls
Who come to law school with a mate
Because most leave their lovers to shack with another
1L with whom they can relate

All your new friends make jokes about negligence
And argue about rights guaranteed
And though you�ll feel really clever, your old friends will never
Get your puns about I.I.E.D.

(It should say) Abandon All Hope Ye Who Enter Here
Instead of "The Truth Sets you Free."
Just pretend that you care about precedent,
Long enough to earn your law degree

It�s Thanksgiving tradition for law students,
To be nauseous, but not from the food,
'Cause the time that you feared grows uncomfortably near
And you realize just how bad you�re screwed.

And the outlines are sought out like heroin
(And they�ll come with a similar fee)
And you�ll rip pages from books and stuff outlines in crooks
In the bathroom, to cheat while you pee

Oh, la la la, de de da
La la, de de da da dum

(It should say) Abandon All Hope Ye Who Enter Here
Instead of The Truth Sets you Free.
Just pretend that you care about precedent,
Long enough to earn your law degree

Posted by Nick at 11:28 PM | Comments (0) | TrackBack

Survivor Round 1: The Law and Reality TV

Q. Is it possible to make a good reality show that relates to law (other than the COPS format)? If so, describe.

A. Yes, but it's easier to make bad reality TV shows: Bailiff 911; Appellate Fear Factor; World Circuit League Wrestling (Easterbrook's tagging in, the 7th Circuit's going to crush the 5th Circuit en banc!)... the possibilities are endless.

Background on Law-Related Reality TV

Besides CourtTV�s trial coverage, there have been four basic formats of law-related reality TV shows: (1) The COPS / First 48 / Animal Cops format: cameramen follow law enforcement officers as they perform their duties. (2) The People�s Court / Texas Justice / Judge [Insert Name Here] format: two bozos in an ADR courtroom yell at each other until the judge gives one of them a nanny-scolding. (3) The Law Firm format: lawyers compete Apprentice-style for a spot in �the firm� by trying ADR cases in a faux-courtroom. (4) America�s Most Wanted format: re-enact a crime with narration and then show photos of the perp(s).

In general, these law �reality� shows resemble reality about as closely as law school resembles the practice of law. Compare Judge Judy with an actual proceeding in small-claims court. Lawyers competing in the courtroom was so ridiculous that NBC yanked The Law Firm after two episodes. The closest they come to reality is the COPS format. Even there, the department chooses the officer to be followed, and it goes without saying that John Q. Officer is on his best behavior. When was the last time you saw a Rodney King-style beatdown on COPS?

What is a �good� law-related reality TV show?

Good is a subjective term. For network executives, �good� is roughly synonymous with �popular.� But good could also mean some combination of entertaining and informative. Depending on which definition you use, two good law-related reality shows could be created by modifying existing reality shows: Real World Law School and Posner�s Court.

Using the good as popular definition, I propose modifying Real World to be comprised of incoming 1Ls.

Real World Law School would include all the traditional 1L archetypes: the gunner, the frat boy, the public-interest hippie, the nerd, the socialite, the stoner etc. as they live together through their 1L year. RWLS would yield about the same amount of petty backstabbing, binge drinking, and random shacking up as is found in MTV�s signature show. Viewers would have the added benefit of seeing professors rip into the cast members when they partake of that $2500 beer tab courtesy of Aynahl & Retentive LLP in lieu of reading the next day�s cases.

Better yet would be a law-related reality show that is both entertaining and informative. By informative, I mean the viewer would learn something about the law. COPS almost falls into this category, except that it informs the audience by counterexample, and it doesn�t inform about the law as much as about what not to do to avoid getting caught breaking the law. It�s a substantive-procedural distinction. For example, I have no idea what the specific laws are on marijuana possession, but thanks to COPS, I do know that if you have a joint not to put it behind your ear when driving. (Also, you can�t outrun the K-9 unit. If you have a brick of cocaine in the trunk, don�t give the officer permission to search the trunk.) These would seem to be common sense, but keep in mind there�s little overlap in the Venn Diagram of blawg readers and meth-scoring ass-sellers.

Posner�s Court would be along the lines of Judge Judy, but with more decorum, less smarmy backtalk from the judge, and an explanation by the judge of the law being applied. The cases are real. . . in our forum, Posner�s Court.

In the days before ESPN, a popular TV commercial which aired during football games was �IBM Presents: You Make the Call.� Each Sunday, the commercials would show footage of a convoluted play (usually involving consecutive fumbles from each side plus an inadvertently kicked ball plus mascot interference.) The narrator would then pause the clip and boldly announce, �You make the call!� A commercial would air, giving armchair referees time to argue amongst themselves. After the commercial, the correct answer would be given and the relevant rule would be explained and applied. Almost always, the rule hinged on some obscure rule (Raiders fans think �tuck rule�). It seems that if your average football fan can follow IRAC for the minutiae of football jurisprudence, your average Judge Judy fan could likewise follow Posner�s explanation of how comparative negligence and joint and several liability apply in the instant case.

The prospect almost makes me wish I owned a television.

Posted by Brian at 5:33 PM | Comments (0) | TrackBack