January 31, 2007

Today / 02.01.07

Today in History (1790) - In New York City the Supreme Court of the United States convenes for the first time. Also, the 455th birthday of Lord Coke.

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Shisler v. Sanfer Sports Cars

I happened to read this case today as I was doing a bit of out-of-class research on personal jurisdiction for my Civil Procedure class. I have to admit that I think internet litigation is very interesting. Shisler v. Sanford Sports Cars is a very odd case that seems to go against common sense while trying to determine whether or not California has jurisdiction over a car-salesman in Florida. (Shisler v. Sanfer Sports Cars, Inc., H02979, Santa Clara County Super. Ct. No. CV041750):

Plaintiff Bryan Shisler is a California resident. Defendant Sanfer Sports Cars, Inc., is a Florida corporation that maintains its principal place of business in Miami, Florida. Plaintiff sued defendant in California on causes of action arising out of the purchase of a used car that plaintiff saw advertised on defendant�s Web site. The trial court granted defendant�s motion to quash service of summons for lack of personal jurisdiction. We shall affirm.

The reason this case doesn't make any sense revolves around the fact that the precedent it relies on, Pavlovich, doesn't really have anything to do with Shisler. (Pavlovich v.Superior Court (2002) 29 Cal.4th 262.)

Here is some of the language quoted in Shisler from Pavlovich:

If a defendant�s contacts with the forum state are not substantial, continuous, and systematic, the defendant may be subject to specific jurisdiction. �A court may exercise specific jurisdiction over a nonresident defendant only if: (1) �the defendant has purposefully availed himself or herself of forum benefits� [citation]; (2) �the �controversy is related to or �arises out of� [the] defendant�s contacts with the forum� � [citations]; and (3) � �the assertion of personal jurisdiction would comport with �fair play and substantial justice.� (Pavlovich, supra, 29 Cal.4th at p. 269.)

However, in California, the question as to whether the contacts are "sufficiently substantial, continuous, and systematic" only comes into play when the cause of action is not connected with the "defendant�s business relationship to the forum."

In this case the cause of action is obviously connected with the defendant's business relationship:

When the car arrived in California it was not as plaintiff had expected it to be. Plaintiff communicated with defendant seeking to remedy the problem. When those negotiations failed plaintiff filed this lawsuit. Plaintiff�s complaint alleges violation of the California Consumer Legal Remedies Act (Civ. Code, � 1770 et seq.), violation of the Florida Deceptive Trade Practices Act (Fl. Stat., � 501.201 et seq.), and common law fraud and misrepresentation causes of action.

The court then goes on to explain how the web site at issue didn't target California residents and so on, but never discusses the fact that a car was purchased by a California resident and actually delivered to him. In fact, the whole rest of the opinion fails to even discuss the facts found in the case. This case is not about sending files over the internet, it is about a contract for the purchase of a car which was delivered to California. (The court notes that there were at least 10 sales of vehicles from this salesman to California using the web site.)

This is the language used to decide the case:

In evaluating Internet activity for jurisdictional purposes Pavlovich adopted the
sliding scale test: � �At one end of the spectrum are situations where a defendant clearly
does business over the Internet. If the defendant enters into contracts with residents of a
foreign jurisdiction that involve the knowing and repeated transmission of computer files
over the Internet, personal jurisdiction is proper. [Citation.] At the opposite end are
situations where a defendant has simply posted information on an Internet Web site
which is accessible to users in foreign jurisdictions. A passive Web site that does little
more than make information available to those who are interested in it is not grounds for
the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by
interactive Web sites where a user can exchange information with the host computer. In
these cases, the exercise of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information that occurs on the
Web site.� � (Pavlovich, supra, 29 Cal.4th at p. 274, quoting Zippo Mfg. Co. v. Zippo Dot
Com, Inc. (W.D.Pa. 1997) 952 F.Supp. 1119, 1124.)


In this case, defendant�s Web site merely advertised its vehicles and (presumably)
included a credit application.

I could understand the opinion if the plaintiff were trying to serve the defendant on an issue not relevant to their transaction, (say a libel claim), but this case is a cut-and-dry example of a situation in which personal jurisdiction should have been found.

I expect we will see this case at the California Supreme Court in the near future.

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Ginsburg Tries to Lull Conservatives

Though they see the federal judicial imposition of same-sex marriage at every turn, conservatives who don't know better might actually take Justice Ginsburg at face value when she said, "Overruling a 1986 decision, Lawrence declared unconstitutional a Texas statute prohibiting two adult persons of the same sex from engaging, voluntarily, in intimate sexual conduct. (I think it highly unlikely, however, that we will soon see a U.S. Supreme Court decision resembling the very recent decision of the Constitutional Court of South Africa in Minister of Home Affairs v. Fourie.)"

Then again, "soon" is a relative term, and one that may have something to do with political orientation. If you are standing athwart history, yelling "Stop!" even a change ten years from now is soon. Whereas if you see constitutional law as a progression -- recognizing the equality of women and minorities, extending rights to protection from state as well as federal interference -- then waiting ten years for one's sex not to determine whom one can marry seems like a long time.

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Surely There Was A Better Use for Strauss

A New York Times article quotes Peter Strauss on the topic of an executive directive issued by Bush last week, which requires agencies to have a regulatory policy office run by a political appointee; to identify �the specific market failure� that justifies intervention; to give the White House an opportunity to review �any significant guidance documents� before they are issued; to have any guidance document expected to have an economic effect of $100 million a year or more posted on the Internet and to invite public comment on it; to keep guidance documents free of legal obligations not in the statute or regs, and of �mandatory language such as �shall,� �must,� �required� or �requirement.�� And regarding this thicket, here's the quote we get from someone who literally wrote the book(s) on administrative law:

Peter L. Strauss, a professor at Columbia Law School, said the executive order �achieves a major increase in White House control over domestic government.�
�Having lost control of Congress,� Mr. Strauss said, �the president is doing what he can to increase his control of the executive branch.�
Having been in Strauss's admin class, I know he's not a Bush fan, but I can't believe that he didn't have something more useful to say about the implications of this directive. How about a historical refences to Reagan's requirement for cost-benefit analysis, comparing it to the demand for a "specific market failure"? or a challenge to the $100 million point for requiring public comment -- shouldn't notice-and-comment attend every government action with the effect of a regulation, even if it goes by the name "guidance document"? If there was going to be a separation of powers shout-out, couldn't it have been for the demand that a political appointee specifically vet promulgation of rules made pursuant to Congressional statute? (As opposed to the political positions of Administrator and Deputy Administrator, which require Senate confirmation. The EPA itself was formed under Reorganization Plan No. 3, which was submitted to Congress.)

I have no problem with the substance of Strauss's comment -- I just wish it had been more, well, substantial. The superficial reader is going to look at it and think "Um, isn't the president supposed to control the executive branch? Why is this a problem?"

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I Can Afford the Original Seagull

Running contrary to what appears to be the conventional wisdom about intellectual property in fashion -- that "[copyright] protection should now be extended to garment designs" and that "fashion design remain[s] mostly unprotected" -- an otherwise-lagging Levi's apparently is making a great success in one area: suing jeans makers who use its "its signature denim stitches." Oddly, the NYTimes article only has a brief quote at the end to represent what I would consider the big problem with Levi's claims: what maker of high-priced jeans would want them to be mistaken for relatively-cheap Levi's? �It was an original design,� he said. �Why would I use Levi�s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi�s.�

The problem here is not counterfeiting, because no one who blows hundreds of dollars on a single pair of jeans does so because she thinks they're Levi's. It's therefore more a matter of patent than trademark. Levi had a good idea about how to make a back pocket and an attached label, so everyone else wants to use it -- not so they can make their jeans look like Levi's, but because it's just a good idea. To some extent, this comes closer to the original purpose for giving intellectual property protection: we want people to be incentivized to come up with good ideas, so we'll give them time to be the only ones to profit from their good ideas. But Levi's naturally prefers that the pocket design be regarded as a trademark, because as a patent, it would have expired by now, whereas brands go on forever. (Indeed, the patent on the rivets for jeans expired after 17 years, as Sen. Feinstein pointed out in arguing for extended IP protection.)

Incidentally, the Times seems to have incorrectly reported No. 1,139,254 as the number for the patent/ trademark in question. Searching that number on the USPTO's site turns up a 1915 design for a coffin. [Corrected in comments] The USPTO database also is one of the greatest timewasters ever for the delightful schadenfreude of laughing at people who thought "Garment having a message relating to money printed thereon and adjacent to a reproduction of paper money attached thereto" was an awesome invention in need of protection from the mindthieves.

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This Week's Lesson: Don't Blog Emotional Reactions

I'm contemplating taking down the post I wrote a few weeks ago, titled "Disturbing Tax Fact of the Day," in which I said that I found the existence of IRS rules about how to claim dead, stillborn and kidnapped children as dependents to be "creepy" and concluded, "If my spouse asked me whether we still could claim a dead or kidnapped child for that year, he would be filing as single the next year." One person who talked to me in person about the post thought it was dumb, because of course the IRS has to promulgate a rule one way or the other about how to deal with children who are not residing in one's home at the time one files a return, so there's no reason to be even briefly troubled by the existence of regulations. People who find the post through Google get angry with me for my reaction, accusing me of being insensitive to the death of babies in vitro or shortly after birth.

I had thought that the problem with the post actually was the opposite -- I find the tragedy of a lost child, whether dead, stillborn or kidnapped, to be so overwhelming that thinking about the tax consequences seems absurd. If I am insensitive to anything, it is the financial situation of those for whom a $3300 dependent exemption and $1000 child tax credit makes a huge difference. The privilege I'm flashing is economic, not emotional, because I am thinking like someone who can afford to be oversensitive and "Oh my God, how can you even talk about taxes?!" rather than someone for whom being able to claim a child will make the difference between debt and solvency after funeral expenses that included the purchase of a $3000 headstone.

In over four years of blogging, I don't think I've ever removed a post before, although I've had a couple that generated angry responses. Inasmuch as the above-linked post might have value, it would be for people for whom the information would be useful, but if it just upsets them, then I might as well delete it.

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January 29, 2007

Yo Ga, Girl

As Hinduism rarely gets drawn into American church-state controversies, I'm almost happy to see all the silly people who are convinced that teaching yoga in public schools -- without use of gods' names in chants, or any other references to religion -- violates the First Amendment. Most of my family doesn't do yoga, except for elderly members who officially have entered the phase of life in which they are supposed to be preparing for death and no longer worrying about paying bills or getting the kids married. You can be a good Hindu without engaging in yoga and serious meditation. Sure, you won't be as enlightened as the yogis, but an absence of yoga doesn't doom you to a worse next life.

However, there's a more stringent way of life that does demand yoga, and that's California Hippie-ism. "Portrayed as a New Age nut out to brainwash young minds... Guber, married to former Sony Pictures Entertainment CEO Peter Guber, embraced yoga after moving to California in the 1970s." Hence the fabulously Orientalist quotes from critics of public school yoga: "I've talked to too many people who got hooked on the spiritual deception of yoga. They come to believe in this and become enamored with Hinduism or eastern mysticism," says 80-year-old Dave Hunt. Ah yes, that dangerous eastern mysticism. Not like good ol' fashioned Western mysticism.

The majority of Americans who try yoga can't tell Sanskrit from Urdu, nor Krishna from Shiva. (Though Americans often have seen Kali, and Ganesh usually gets "Yeah, elephant head.") Their doctor may have recommended yoga as a low-impact form or exercise, or they read about a movie star who swears by it for staying in shape. Yoga Booty Ballet leads one to believe in Hinduism as a religion about as much as Legally Blonde leads one to believe in feminism as an ideology. Certainly practicing yoga can cause one to appreciate the benefits of combining meditation with movement, but this by itself doesn't bring many recruits to the local temple; if yoga is "a vital part of the largest missionary program in the world" for Hinduism, Hindus need to pick up some tips from Mormons on how to make it clear that this is a deistic faith, not gym class with incense.

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January 28, 2007

Today / 01.29.07

Today in History (1979) - With the explanation "I don't like Mondays," 16-year-old Brenda Ann Spencer kills two people and wounds nine in a shooting spree at Cleveland Elementary School in San Diego, California.

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Sunday Quotent Quotables

Today, Jonathan Adler explains on the VC the purpose behind his Sunday Song Lyrics. I'm actually a fan of the SSL segment for no other reason than it exposes me to different songs that I may not have heard of. Clearly Adler has an ecclectic taste and I respect that.

In that vein, I often find myself quoting from virtually the same sources: The Simpsons, Family Guy, Dumb and Dumber, The Big Lebowski, Pulp Fiction, My Cousin Vinny, Anchorman, Airplane, Monty Python, etc. So starting this week, I'll post a quote that I've used or heard during the week.

"Senior citizens, although slow and dangerous behind the wheel, can still serve a purpose. I'll be right back. Don't you go dying on me." -- Lloyd Christmas
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January 26, 2007

Canucks Are Just Asking to Get Attacked

�It�s a little presumptuous for him to say who the United States can and cannot allow into our country.� David H. Wilkins, the United States ambassador to Canada, speaking of Canada's minister of public safety.

After reaching a settlement with Maher Arar, in which he will get 10.5 million Canadian dollars ($8.9 million), the Canadian government apologized again for their police's false assertions to U.S. officials that got Arar sent to be tortured in Syria. But the Canadians have gone too far in their mealy-mouthedness: they are telling the U.S. -- us! -- that Arar, his wife and their school-aged children shouldn't be on our watchlist. Where do they get off telling us who is and isn't a threat to America?! Just because they're too dumb to discern what's dangerous about him from our confidential file on Arar is no reason we should follow their blindness.

Just like when they acquitted brown people who were charged with terrorism in the crash of Air India 182 (which killed 329 people and until September 11 was the worst single attack in modern history), the Canadians are once again getting all "Oh, we don't have have enough evidence against these Sikhs Muslims." Evidence, schmevidence -- they wear a turban, they hate India America, we've got cells open in Gitmo. If you don't put them in a civil trial, they can't be declared not guilty. This is war, people!

/Colbert. The Arar incident was sufficiently well known in Canada that it was referenced in a new CBC sitcom, when a Muslim man detained at the airport asks if they're going to send him to Syria.

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January 25, 2007

When Judges Are Called Priests of the Law

Via Ted Frank, a nice picture of Justice Ginsburg when she was Ruth "Kiki" Bader, addressing the congregation at Sabbath Services as camp "rabbi."


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How Does Google Work?

Does it create problems for Yale Law Students Heide Iravani and Brittan Heller, or can it help them? After all, Heide Iravani is an accomplished graduate of UNC, while Brittan Heller has published in YLJ's Pocket Part and was on Teen Jeopardy.

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January 24, 2007

A barren cat

I have to say that this guy might want to get in to a new line of work. His "impotent" male cat impregnated his "barren" female cat.

I'm sure most of you out there have read Sherwood v. Walker, also known as "the pregnant cow case." Sherwood v. Walker, 33 N.W. 919 (Mich. 1887). We just went over that case the other day in my Contracts class. The very same day a classmate of mine received this email from a list serve of the Oregon Women Lawyers:

A nice young man I currently represent has a case I cannot help with. He breeds amazing cats that go for over a $1,000. He had a female cat he "retired" because she was not getting pregnant. He sold her to someone in another state for $400, far less than the value of these cats because of cat's inability to breed. Turned out cat was pregnant and gave birth to 3 kittens while she was with new owner. New owner has not paid for mom cat yet. Client demanded cat and kittens back and instead received a letter from a lawyer with a $400 check for payment to mom cat.

So, what do you think? The pregnant cow case is still very much alive. (Even though I believe it was decided incorrectly.) This was my quick response:

I think this is cut and dry.

Under the Restatements whether the mistake is mutual or unilateral, the seller can only get out of the contract if the risk was not on him. (I think we can all agree that the mistake was adverse to him.) Sec 151 & 153.

Sec 154 (b) states that if the seller had limited knowledge, (which he must
have or he wouldn't have made the mistake), and treated that as sufficient he
bore the risk.

I think that clearly happened here.

Also, under Sec 154 (c) any court would find it reasonable to allocate the
risk to the seller.

The cat in this case could be sold at two prices; $400 or $1000. If sold at
$1000, the buyer implicitly takes on the risk that the cat cannot bear
kittens. At the $400 price the seller implicitly takes on the risk that the
cat may in fact bear kittens.

One or the other bears that $600 of risk. In this case it was the seller.

Then I received this response:

Actually the cat in question had a value of as much as $4,000. She was pregnant at the time of sale, and had been impregnated by a male cat thought to be impotent that was of breeding quality also owned by the seller. so assuming that all the kittens are also of breeding quality and capable of breeding, each is worth $1000.

Seems like the seller really made a big boo boo doesn't it? He took on even more risk than I originally thought. Also, he had complete control of the cat before shipping it off and could have had it checked to see if it could breed or if it was pregnant.

Like I said, it may be time to find a new line of work.

Frankly, if I were the buyer's attorney, I would have offered to send one of the kittens to the seller in order to mitigate any chance of litigation. Buyer still gets a windfall, but the seller is essentially made whole.

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The Passion of the Atheist

For some reason I thought recently about an old debate as to whether it was worse to make religious believers perform rites in which they didn't believe than it was to make nonbelievers perform such. The argument of those who thought it was, as best I understood it, was that one cannot blaspheme atheism, so the harm to believers is much greater. A passage I remembered from a favorite book gives arbitrary aardvark's hypothetical -- "Let me suggest another less common, but useful, meaning for atheism: a-theism, contra theism, that is, a belief that belief in god is dangerous and pernicious, maybe evil" -- the flesh (or at least bone) of fiction:

"Especially as he has gone under," he said quietly.

"What was that?"

"Gone under naturally." He beat his palms together in silence; his head fell on his chest.

"I don't understand."

"As his mother did."

"But, Mr. Emerson--MR. EMERSON--what are you talking about?"

"When I wouldn't have George baptized," said he.

Lucy was frightened.

"And she agreed that baptism was nothing, but he caught that fever when he was twelve and she turned round. She thought it a judgment." He shuddered. "Oh, horrible, when we had given up that sort of thing and broken away from her parents. Oh, horrible-- worst of all--worse than death, when you have made a little clearing in the wilderness, planted your little garden, let in your sunlight, and then the weeds creep in again! A judgment! And our boy had typhoid because no clergyman had dropped water on him in church! Is it possible, Miss Honeychurch? Shall we slip back into the darkness for ever?"

"I don't know," gasped Lucy. "I don't understand this sort of thing. I was not meant to understand it."

"But Mr. Eager--he came when I was out, and acted according to his principles. I don't blame him or any one... but by the time George was well she was ill. He made her think about sin, and she went under thinking about it."

It was thus that Mr. Emerson had murdered his wife in the sight of God.

"Oh, how terrible!" said Lucy, forgetting her own affairs at last.

"He was not baptized," said the old man. "I did hold firm." And he looked with unwavering eyes at the rows of books, as if--at what cost!--he had won a victory over them. "My boy shall go back to the earth untouched."


"I suppose Mr. Vyse is very angry with George? No, it was wrong of George to try. We have pushed our beliefs too far. I fancy that we deserve sorrow."

She looked at the books again--black, brown, and that acrid theological blue. They surrounded the visitors on every side; they were piled on the tables, they pressed against the very ceiling. To Lucy who could not see that Mr. Emerson was profoundly religious, and differed from Mr. Beebe chiefly by his acknowledgment of passion--it seemed dreadful that the old man should crawl into such a sanctum, when he was unhappy, and be dependent on the bounty of a clergyman.

- E.M. Forster, A Room with a View

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January 23, 2007


I want to thank PG and all the others here for inviting me aboard, it is an honor. I arrive by way of Southern Appeal, where I had the pleasure to write with several conservative legal and political thinkers. You can see my previous posts here. I have chosen to blog anonymously both there and here (and would ask anyone with inklings to respect that) because I do not want my name associated with some of the other author�s views. I will, however, offer a little by way of introduction. I am in the middle of my second year at a leading law school. Outside of reading far too much law, I am a history and philosophy dork. Politically, I tend to fall in the libertarian/federalist camp albeit with some significant differences.

A brief introduction is also merited for my name. It is the female form for the family name of both Catos. The frequent use of Cato in history and politics, as well as the possibility of honoring a lesser known female Cato, made me turn to the nomen gentile. This family was famously dedicated to moderation, liberty, and republican virtue; Cato the Younger lived out Patrick Henry�s famous words by committing suicide rather than submitting to Caesar as emperor. While I share most of their principles, I can only hope for the strength to live up to all of mine as they did their own.

Or ti piaccia gradir la sua venuta libert� va cercando, ch�� s� cara, come sa chi per lei vita rifiuta. (Dante, Purgatorio 01.072-5)

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Show NY the Money

Naturally the hot topic at school this morning is Simpson Thacher's announcement that they are raising base salaries for first year associates to $160,000. 2Ls who accepted summer offers for STB are hoping for an email that their weekly salary will go up to $3000, which would be a 15% hike from last summer's $2600. Normally I don't find salary talk very interesting, but some people have mentioned what I thought was a worthwhile point, and reason for other New York firms to follow Simpson's lead but for the raise to stay localized: the increased competition between law firms and other opportunities for reasonably bright and foolishly hardworking young people in NYC.

With the notorious Goldman bonuses having been big news last month, law firms may fear that they are looking like less of a good prospect compared to businesses. Outside New York, though, big firm lawyers are a moneyed class; when the main alternative to a law firm in D.C. is working for the government, why should Washington firms increase salaries? Moreover, the fact that the raise is for the New York office of a New York-based firm also makes it less likely that other cities will follow suit, in contrast to the LA-led raise last year. Even one-salary-fits-all firms tend to make an exception for New York, paying $5-10,000 more due to the higher cost of living, so Armen's calculation that non-NY markets will go to $145,000 seems slightly optimistic.

Posted by PG at 12:34 PM | Comments (2) | TrackBack

The Verbal Equivalent of the Burned Cross

A Houston Chronicle article about a proposed Brazoria ban on offensive use of what "the n-word" attempts to cover the constitutionality of such an ordinance, but doesn't quite get it all:

Gerald Treece, a constitutional law professor at South Texas College of Law, said the ordinance probably will not stand if contested in court. "It's one of those laws you can pass and put on the books, but when you try to enforce it, that's when you're going to run into some trouble," he said.
In the past, attempts by governmental bodies to ban the use of offensive language have been struck down because the laws were too vague or broad.
He said the use of offensive language is protected by the First Amendment. The only possible exception, he said, is if the use of the language is connected with a hate crime. The use of the word alone cannot be prohibited.
In 1992, the U.S. Supreme Court struck down an attempt in St. Paul, Minn., to prohibit displays of hateful symbols after a group was charged in violation of the city's Bias Motivated Crime Ordinance for allegedly burning a cross on a black family's lawn.
The ordinance prohibited the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

This neglects the more recent precedent of Virginia v. Black, in which the Supreme Court held that cross-burning can be criminalized so long as the state also proves it was done with the intent to intimidate (and Justices Scalia and Thomas thought that no intent need be proven). If a specific symbolic act can be prohibited when done to intimidate, a specific word used with the intent to offend -- the ordinance's backers say it would have an exception for friendly use, thus avoiding the mass fining of young African Americans who casually greet each other with the word* -- might not be constitutionally protected.

However, as Prof. Treece notes, the use of offensive language has some First Amendment protection. It can be punished when it rises to the level of "fighting words," but even then it isn't usually a particular word that can be prohibited so much as the idea that's communicated. I can get in trouble for trying to disturb the peace by telling someone that he is a coward and would be afraid to fight me even to protect his mother's honor from my licentious insults toward her -- with none of it using words that are unfit for broadcast -- yet not be deemed to have use fighting words if I just loose a string of George Carlin's seven words toward someone I know would be offended by hearing such. The intent to offend appears to be protected, while the intent to incite is not.

* Chris Rock has an dictionary-worthy set of examples to distinguish the various uses of the n-word.

"Nigger" is one of those words, like "fuck," that means different things depending on how you use it.
"I love you, nigger." Good.
"You're my nigger." That's nice.
"Shut up, nigger!" Not so good.
"I'm going to kill you, nigger." You better run.
Of course, "nigger" is just a word. White people could call us anything, like "butter."
"Hey, you fucking butter! Pick that cotton, butter!"
The problem is that then they wouldn't be able to use the word "butter" for anything else. But they've got to use something. Next thing you know, white folks are sitting around the breakfast table with their eggs and toast, saying, "You're kidding. I can't believe it's not nigger."

Posted by PG at 10:40 AM | Comments (4) | TrackBack

Today / 01.23.07

Today in History (1897) - Elva Zona Heaster found dead in Greenbrier County, West Virginia. The resulting murder trial of her husband was perhaps the only case in United States history where the alleged testimony of a ghost helped secure a conviction. (Hearsay exception?)

Posted by PG at 10:02 AM | Comments (0) | TrackBack

January 22, 2007

Blog for Choice: The Facts of Casey

Blog for Choice Day - January 22, 2007

Attempting to defend Casey's adherence to stare decisis, Prof. Kenji Yoshino summarizes,

The difficulty, then, is deciding how much deference the doctrine of stare decisis requires in any given case. Before Casey, the Supreme Court treated this issue as an art rather than a science. In Casey, however, Kennedy, O'Connor, and Souter (here speaking for a majority of the court) took a more comprehensive approach, observing that the court usually looked to four "prudential and pragmatic considerations." Precedents would be likely to be overruled if they had proven to be unworkable as a practical matter; if there had not been general social reliance on the rule; if there had been subsequent changes in doctrine; and if there had been subsequent changes in fact. Applying these factors to Roe, the justices found that they all cut in favor of upholding the legal right to abortion.
In fact, however, there had been subsequent changes in fact that the Casey plurality implicitly acknowledges in abandoning the trimester framework for pre-viability (no undue burdens allowed) and post-viability (prohibition with exceptions for health and life): with improvements in medical technology, fetuses could survive living outside the womb at a younger age in 1992 than in 1973. There also could be widespread changes in perception due to the now-standard use of ultrasounds, which don't seem to have been routine in ob-gyn care until the 1980s, and which permit fetuses to be viewed as individuals; while scientific textbooks had ultrasound images of fetuses before 1973, they were unlikely to have been seen by the general public, whereas nowadays people put ultrasound pictures into baby albums as the "first picture." This cultural shift may have a legal consequence.

Paradoxically, the use of a medical tool may shift more people from considering the entity, the legality of whose death is debated, to be a fetus (medical Latin), toward considering it to be an unborn child. Justice Scalia, who preferred the latter term in his Casey dissent, criticized the Roe holding for assuming that "a human life" was not at stake. Scalia was of course referring to the fetus, not the woman carrying it.* For most of human history, before the fetus starts manifesting itself through movement -- what Jewish/ Islamic ethicists called quickening and made the point at which personhood began -- it was known to be there mostly because of what the woman carrying it was doing: stopping menses, throwing up, gaining weight. Now, even before the traditional 40-day point of quickening, the gestational and yolk sacs, and embryo size, can be visualized by ultrasound.

While I don't think viability will be pushed much further back unless we figure out how to mature air sacs outside the uterus, I do think we can continue to improve our ability to see the unviable fetus. Thus if Casey rests partly on people's perception of whether a fetus is a person with 5th and 14th Amendment rights -- even if there's no change in the fact of the alleged person's ability to live without remaining inside the specific woman in whom the embryo implanted -- this seems to me a significant problem in Casey's underpinnings. Once the clash is between the Constitutionally unstated right to have the particular privacy of being free of pregnancy (a right also at issue in Griswold and other contraception cases), and the Constitutionally stated right not to be deprived of life without due process, Roe and its progeny are likely to crumble, because they have not been decided to withstand that particular pressure.

To regard the fetus as a legal person would itself be a departure from tradition, something Justice Scalia fails to note in his various litanies about how abortion and homosexual sodomy** "are forms of conduct that have long been criminalized in American society." Fetuses aren't counted at census, the IRS ignores them, they don't inherit until they're born alive and until recently, they weren't entitled to health care and killing a pregnant woman was charged as a single homicide, albeit an especially heinous one. Attempts to chip at Roe have produced pretty much all the areas of law of which I know that have any regard for the fetus whatsoever. When Scalia decries Roe for seeing the conflict as being between an individual's liberty and a State's morality police, he seems to forget that this is how the states themselves regarded it. When criminalized, abortion tended to be treated differently from murder, and even to be in a different section of legislative codes. For example, the Code of Virginia put "18.2-71. Producing abortion or miscarriage," which language has existed since the 1950 revision, down after the sex crimes; "18.2-32.2. Killing a fetus," a 2003-originated crime, is up with murder and manslaughter.

If improved imaging technology creates a public perception of fetuses as people, it will be a blow to the Casey majority, but also to the demand for adherence to tradition touted in the Casey dissent.

* Possibly the summit of disembodying fetuses from women comes when Scalia declares the Casey majority to being saying that "'liberty' must be thought to include the right to destroy human fetuses." As far as I know, the Supreme Court never has said that women have the right to destroy human fetuses willy nilly -- to sedate other pregnant women and vaccum fetuses from their uteruses -- only the right to remove fetuses from their own bodies.

I admit that I seem to be particularly far out of line with Scalia's thinking in this case. He puts forward "the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death" as a statement of self-evident absurdity, yet it seems to me quite reasonable. If I don't have the right to starve myself to death, then what does my "right to eat" mean? Or to align more closely with actual Constitutional questions, if I don't have the right to be silent, then what does my right of free speech mean? If the state can force me to bear children, why can it not prevent me from bearing children -- indeed, as our never-overruled Constitutional tradition says it can?

** I heart how Scalia always uses the phrase "homosexual sodomy." Had I chosen to question him about sodomy, it would have been the slightly more polite question: "Justice Scalia, are you aware that heterosexuals also sodomize one another? And if so, is the reason that you always refer to homosexual sodomy that you think heterosexual sodomy is textually protected (if so, please point to the Constitutional clause), or that you don't believe it has been historically criminalized in American society -- the actual statute at issue in Bowers notwithstanding?"

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January 19, 2007

Pro Bono, Pro Terrorist

I meant to write something about the deputy assistant secretary of defense for detainee affairs making bizarre comments about law firms that represent Gitmo detainees, but the Fort Worth Star-Telegram, of all surprising places, pretty much covers it, so I'll just provide the relevant links: Stimson's apology , Washington Post editorial, NYTimes article, NYTimes editorial, Gonzales complaining that it's the defense attorneys' fault, not the administration's, that justice is taking so long.

I have heard the suggestion that the firms are benefiting from this pro bono work by getting business from terrorist-friendly Saudis. Under this claim, Stimson's "others are receiving monies from who knows where, and I'd be curious to have them explain that" remark is defensible because firms chose this particular cause in order to curry favor with those who want to see terrorists go unpunished. This frankly strikes me as implausible, given how prominent most of these firms already are; if we think the big players actually notice such things, shouldn't former Bush Administration figure Scooter Libby have avoided Paul Weiss? Shouldn't representation of these allegedly terrorist-friendly Saudis in the 9/11 victims' suit have gone to the Gitmo defenders instead of firms like Baker Botts? Certainly there is overlap between Saudi-representing firms and those with associates in the Guantanamo Bar Association (Wilmer*, Fulbright), but that seems inevitable given the prominence of the firms on both lists. I stick to my own explanation that the choice of Gitmo pro bono has more to do with firms' internal culture -- what their associates find interesting -- and their desire to look cool to recruits who might otherwise feel a pang about working for corporate America. Nothing turns on a law school student like the abstract concept of basic due process, divorced from the less pleasant aspects of, say, a death row inmate who's already had his day in court. Several of them.

* Wilmer actually is representing guys who weren't even picked up in Afghanistan or Iraq, but in Bosnia on charges of trying to blow up the U.S. Embassy there.

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Why Is This Difficult?

Maybe the Washington Post is oversimplifying the admittedly complex area of executive compensation, but...

The Senate Finance Committee is considering a proposal to sharply limit the earnings corporate executives and other highly paid employees can place tax-free into deferred compensation plans, one of the most popular executive benefits in corporate America.
Under the proposal, expected to be discussed today by committee members, an individual taxpayer could defer no more than $1 million annually in compensation, beginning this year. The shift in tax policy would be likely to affect top executives at hundreds of corporations and would raise taxes on some of the nation's wealthiest workers by an estimated $806 million over 10 years. ...
Business lobbyists reacted to the proposal with deep skepticism.
"There are lots of technical problems with this. For instance, we're not sure what the definition of deferred compensation is," said Lynn D. Dudley, a vice president of the American Benefits Council, an advocate of employer-sponsored benefit plans.
There may well be problems with this proposal, but I don't see how defining deferred compensation possibly can be one of them. If the executives didn't have any trouble figuring out what was supposed to be tax-free when there was no limit on how much could go into such a plan, they probably aren't going to become suddenly stupid and not understand that only $1 million of it can be tax-free henceforward. There may be a great deal of stress about what to put under that $1 million and how to value it (should I defer my stock options? what about non-cash forms of compensation like housing?). But that it is what I used not to have to pay taxes on if I deferred it and would have paid taxes on if I hadn't deferred it, and now do have to pay taxes on after the first annual $1 million, does not strike me as complicated.

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January 18, 2007

Question to Law Students and Law Faculty

When do your grades come out? That is, how long after the semester ends? I'm particularly interested in peer schools. Word is that the Boalt faculty are a bit clueless that our grades take too long (they still haven't come out), so I want to collect data to see where we really stand. Thanks in advance.

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Today / 01.18.07

Today in History (1978) - The European Court of Human Rights finds the United Kingdom government guilty of mistreating prisoners in Northern Ireland, but not guilty of torture.

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January 17, 2007

WalMart (& RILA) 2, Maryland 0

Following a July defeat on summary judgment at the district court level, Maryland's "fair share" law has taken an appellate blow at the hands of the 4th Circuit, which agreed with most sensible observers that the state legislation is preempted by federal ERISA in setting benefit requirements for employees. I don't know of a conflicting circuit ruling, so there's little reason for the Supreme Court to take up an appeal; a better political route will be to pressure a newly-Democratic Congress into imposing more benefits requirements for large corporations nationwide.

OK, that made the outcome seem obvious, when in actuality the majority opinion by Judge Niemeyer and joined by Traxler garnered a dissent by Judge Michael. At the district level, the court ruled for Wal-Mart on ERISA but for Maryland on Wal-Mart's claim that the Fair Share Act violated the Equal Protection Clause with an irrational classification. (I dunno how classifying by the number of employees -- which most labor-related law already does, to avoid imposing too much on mom-and-pops -- can be considered irrational, but good litigators throw in the kitchen sink of the 14th Amendment.)

The majority 4th Circuit opinion says that RILA does have standing, despite not being injured in itself and the injury to its members being only impending, and that the district court was right to consider Fair Share a regulation rather than a tax. Had the requirement to spend 8% on employees' health care or else have it levied by the state been deemed a tax, a federal lawsuit to stop it would have been impeded by the Tax Injunction Act, which kicks such actions to state courts when possible.

Related to the attempt to characterize Fair Share as a tax rather than regulation, Maryland also argued that Fair Share isn't really about mandating an employer�s provision of healthcare benefits, but rather is "part of the State�s comprehensive scheme for planning, providing, and financing health care for its citizens," imposing a payroll tax and credit scheme on certain employers, with revenue going to paying for the uninsured's health care. The General Assembly's deliberations before passing the law, however, make quite clear that Maryland expects Wal-Mart to start providing more benefits to its employees, not to pay the state an equivalent amount to go into a fund that would benefit the non-WalMart-employee uninsured as well.

I think this legislative record is important to the case, as otherwise Maryland structured a decent workaround: Fair Share allows companies to spend on health care generally, including inhouse clinics, rather than specifying health care plans that automatically would raise an ERISA flag; and to pay into the state instead of providing health care themselves. However, all the legislature's rhetoric about how Wal-Mart was going to have to insure its employees now utterly undercut the carefully-written statute, and made clear that it was merely a cover for an attempt to regulate Wal-Mart's provision of benefits to employees, in clear violation of ERISA. Having decided that the Fair Share Act is preempted by ERISA, the majority declined to consider the equal-protection claim.

In dissent, Judge Michael takes more seriously the option to pay into the state fund rather than change the company's health care spending, and therefore says Fair Share is not preempted by ERISA. He begins by describing Maryland's Medicaid funding woes at length, and the burden imposed on it by uninsured workers. Michael dodges what would seem to be the Tax Injunction Act barrier to his even considering the case by calling it a "regulatory fee" rather than a tax. At this point, Michael seems to damage his own argument that Maryland is not regulating in violation of ERISA:

The assessment may generate revenue, but its primary purpose is punitive in nature. It assesses employers that provide substandard health benefits or none at all. Any revenue collected serves to recoup costs incurred by the state due to such behavior; collections are not deposited in the general fund. The regulatory purpose is further evidenced by the Act�s creation of a special fund administered by the Secretary of Labor, Licensing, and Regulation and dedicated to defraying the state�s Medicaid costs.
Right, so doesn't all this make Fair Share a benefits regulation? Judge Michael says no, because it doesn't specifically impact "any employee benefit plan," which is the precise phrase used in Congressional legislation to describe the field ERISA fully occupies.

This strikes me as the most plausible argument in favor of the law, though it relies heavily on understanding what is meant by "benefit." In normal usage, "benefit" means something that provides utility; my former employer provided the benefit of free juice and water at the office, as well as use of the company box at FedEx Field and MCI Center. Even if a state decided to regulate such benefits, it would have no conflict with ERISA because no "plan" is involved. ERISA is intended to cover health care and retirement plans, basically to keep employees from getting screwed, and has been amended by COBRA to give employees the option of retaining company coverage even after losing their jobs, and by HIPAA to prevent discrimination based on preexisting health conditions. It would not force a company to, or stop it from, installing an on-site health clinic; ERISA is about plans, a word it uses ad nauseum to describe both health care and pension benefits.

The Maryland law, in contrast, technically did give companies the flexibility to spend money on alternatives to traditional insurance: clinics, free prescription medication from Wal-Mart's own pharmacy, even total health care for employees themselves with nothing for their families. The definitions in the law are muddled -- "'health insurance costs' means the amount paid by an employer to provide health care or health insurance to employees in the state to the extent the costs may be deductible by the employer under federal law; 'health insurance costs' includes payments for medical care, prescription drugs, vision care, medical savings accounts, and any other costs to provide health benefits as defined in Section 213(d) of the Internal Revenue Code" -- but they appear to be anything that fits with the IRS deduction, which in turn allows 'most everything except nip/ tuck.

Judge Michael ignores the legislative record entirely, concluding primly,

The Act also contains no impermissible reference to an ERISA plan. Such a reference occurs only when a statute explicitly refers to or relies upon the existence of an ERISA plan. District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 (1992) (statute preempted because it applied to "health insurance coverage," which is an ERISA plan). Obligations under the Act are tied to a covered employer�s level of tax deductible health insurance spending. The Act does not make any explicit statement about ERISA plans or rely on their existence.
Legislation that otherwise maybe mighta squeezed under the wire has been derailed by exuberant legislative comment before; the Kentucky Ten Commandments fell mostly because they were found to have an impermissible purpose, while the Texas Decalogue still stands thanks to the ability of the Texas Lege to let a monument be put up without talking too much about it.

UPDATE: Other reactions at Workplace Prof, Jottings and Employment Law blog, the last of which makes the bold move of siding with the dissent.

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X Post

So as not to cannibalize another blog, I'll link rather than re-post a quick response to some of Ninth Circuit judge O'Scannlain's remarks at a recent Columbia Law lunch.

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January 12, 2007

Because Murdoch-Owned MySpace Refused the Ad

Common Cause: No More Consolidation

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The Pie of Derivatives

I think I need to sit down and read a book about derivatives, because I find them intensely confusing, particularly as they become more abstract. (To that extent, I'm in sympathy with the citizens of Ankh Morpork who constructed a warehouse for pork futures.) I've understood selling short since high school, when our one-semester government/ economics class -- in which the total economics we learned was Reaganomics and basics about the stock market -- and since I disentangled hedging from hedge funds, both concepts have been easier to grasp.

But financial instruments like weather derivatives confuse me utterly. For one thing, they seem like a zero-sum game, and I hate aspects of the economy that are zero-sum games; I idealize capitalism's ability to connect people for transactions that are profitable to them both, whether it is buying and selling labor, goods or insurance. Weather derivatives seem comprehensible to me only if I think of them as the kind of risk-pooling we get in standard insurance, where many people pay fees to be protected against the cost if an individually- unlikely- but- inevitable- over- a- large- population disaster occurs. On a one-to-one basis, they seem to make a winner and a loser based on whether the event occurs.

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January 11, 2007

Barristers' Ball Again

Having covered this topic in my first year, I return to it now having noticed that people whom I presume to be current 1Ls are googling for information about Columbia Law's Barristers' Ball. Everything I know:

1) If you want to go, buy your ticket early as they may sell out.

2) It is more formal than a regular party, but you don't have to wear a tux. If something is called a "ball," attending in casual clothes is inappropriate, and I say this as one of the worst dressed and groomed people in the law school. Thank God UVa and Columbia no longer expect students to wear suits to class (well, and now let in women).

3) Though a date is not required, this can be a good opportunity to introduce someone you're dating who's not in the law school to many of your friends and acquaintances at once -- and more to the point, to introduce them to your non-barrister significant other, so The Loudmouth in Contracts and The Guy Who Saved My Torts Grade will have faces matched to their descriptions.

4) Between the DJ and the crowd, the main room of Low Library gets too loud for conversation; if you want to talk to people, please retreat to the back room instead of trying to scream over the music.

5) Don't drink so much you throw up. That stopped being cool ... OK, it never was cool, but at least when you couldn't drink legally and therefore didn't get to drink often enough to know your limits, it was excusable. Unless you are the rumored 19-year-old of the class, you won't be excused.

And in the unlikely event that the New York Sun shows up again, don't talk to the reporter because they'll apply the same nonexistent journalistic standards to a social event that they do to everything else.

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Disturbing Tax Fact of the Day

[On second thought.]

The IRS had to work out whether you could claim a kidnapped child as a dependent. Luckily for those who see paying tax as the worst thing that ever could happen to them, you can! until the kid is declared dead. The existence of the "child born alive" rule for getting an exemption is only slightly less creepy -- a woman has gone through nine months of pregnancy and delivery only to have the baby die shortly thereafter, but at least we got that exemption, honey.

Child born alive. You may be able to claim an exemption for a child who was born alive during the year, even if the child lived only for a moment. State or local law must treat the child as having been born alive. There must be proof of a live birth shown by an official document, such as a birth certificate. The child must be your qualifying child or qualifying relative, and all the other tests to claim an exemption for a dependent must be met.

Stillborn child. You cannot claim an exemption for a stillborn child.

Kidnapped child. You can treat your child as meeting the residency test even if the child has been kidnapped, but both of the following statements must be true.
1. The child is presumed by law enforcement authorities to have been kidnapped by someone who is not a member of your family or the child's family.
2. In the year the kidnapping occurred, the child lived with you for more than half of the part of the year before the date of the kidnapping.

This treatment applies for all years until the child is returned. However, the last year this treatment can apply is the earlier of:
1. The year there is a determination that the child is dead, or
2. The year the child would have reached age 18.

If my spouse asked me whether we still could claim a dead or kidnapped child for that year, he would be filing as single the next year.

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Size, At Least Length, Does Matter

A few years ago, Ambimb recommended shortening the JD to a 2 year curriculum. During my last semester of law school now, I want to suggest the opposite...extend it by a year. Of course, for all the reasons that Ambimb articulates it would be pointless to make the JD a mandatory 4-year program. What I want is the option to get an extra year to take all the classes that I really want to take. So far on the to-take list: Antitrust, Crim Pro, Copyright, TM, First Amendment, and a crap load of Int'l Law classes. Maybe this is just anxiety before hitting the real world. Maybe it's an inherent desire to remain a student forever. Either way, I think it would be great if law schools created some token degree for staying an extra year. Maybe like a domestic LLM program or something.

I'd also like to see law schools offer extension courses. Most major colleges and universities offer extension courses, why not law schools? Easy money, especially for cash-strapped state schools like mine. I know as an attorney, I would certainly take classes in areas that interest me, but that I do not really practice. Anyway, off to Vegas.

Posted by Armen at 2:50 PM | Comments (6) | TrackBack


Reading an excellent post to which Denise pointed, as well as thinking the matter out a little at ChaliceChick, has led me to wonder whether I lack respect for transsexuality. I know I respect transsexual people, but that of course is not the same thing; I can respect Bush supporters while thinking that supporting Bush is the wrong thing to do. My comment at CC's was,

I'm not clear on how being trans is an "inborn characteristic," given that gender is a social construct. You are born with a set of genitalia that give you a physical sex, but the set of characteristics accepted as "masculine" or "feminine" is socially taught. If we had a gender neutral society in which everyone wore skirts, no one wore makeup or had shaved legs, and the genitalia of people you found attractive was no one else's business, there would be no such thing as "transgender."

Because of the society we have, people whose physical sex doesn't match with the set of gendered characteristics need to be able to make them match, but a trait based on social constructs isn't really "inborn." (However, a preference for having sex with a person with a vagina instead of a penis can be inborn, and of course the vaginas and penises are inborn, so sexual orientation qualifies as an inborn characteristic.) I think we are inching toward a gender-neutral society in which a person with a penis who wants to act and be treated in a way we'd now identify as "feminine" can do so without getting the penis cut off, and my bias is in favor of that rather than the status quo.

Also, we aren't tolerant of things just because they are "born that way and can't help themselves." I'm not going to tolerate pedophilia just because it's an inborn characteristic -- as it may be, considering that there are people with pedophiliac desires who squelch them because they realize intellectually that they're wrong, so it's unlikely that such people would "choose" to have those desires. We tolerate that which does not harm others, and I see nothing harmful in a same-sex or sex-neutral sexual orientation, nor in someone's preferring a gender that our society currently considers not to "match" that person's genitalia. Therefore there is no reason to squelch those desires.

Based on this remark, I suspect my feelings do run along similar lines as those of the transphobic feminists Winter critiques, albeit without their Tom Coburn-esque bathroom terrors or demands for female-only spaces. Such spaces made broad sense when women needed communal areas in which to draw strength from other women for dealing with the patriarchy, but in all honesty I didn't have a single moment this week when I thought that I would feel better with no men in the room. There are some times when this is different, but at this point, women-only spaces often just give the middle-class heterosexual white men whom Winter neatly lampoons another thing to whine about: "Why do they get that and we can't keep our golf club?").

That is, I don't find transsexual people at all threatening in themselves, but I am a little troubled by the necessity of literally reifying the sex-gender connection by altering one's genitalia, taking hormones, etc. This enaction of the oppressive social rule that XY = masculinity and XX = femininity on the body seems like something that shouldn't have to happen, even though it's obviously something people can do if they want. My position on this seems to be similar to the feminists who think abortion is OK in our current society, but will be unnecessary in a utopia where pregnant women all have excellent prenatal healthcare and postnatal childcare and monetary support. In other words, they treat abortion as a necessary evil that will not exist in an ideal future, and thus not really a constitutional right, as its legality is contingent on an uncaring society.

In my ideal future, we all can go to the same bathroom, wear what we want, behave as we want (as long as we don't behave in a way that would get us smacked regardless of gender; being a masculine-acting person with a vagina does not mean you may spit on the sidewalk or grab strangers' backsides) with no limits based on chromosomes or sex characteristics. If two people with penises want to shack up, great! get married, pay the tax penalties, raise kids and gradually stop having sex.

Policy-wise, just as the abortion-uninclined feminists would allow abortion to be banned in their utopia, my kind of trans-phobia -- a fear not of transsexuals, but of perpetuating what I believe to be a false link between sex and gender (sort of like my cheerleader-phobia, except that I'm actually afraid of cheerleaders) -- implies that in the ideal future, transsexual surgery and other medical assistance will be treated as cosmetic and not covered by standard insurance. Of course, this is the reality for many trans Americans, but while we're talking about The Way Things Ought To Be in the future, I may as well assume TWTOTB in the present. As long as someone still possessing outward signs of masculinity but described to be "passing" as female, or vice versa, is subject to insult, discrimination, assault and murder, bringing sex and gender into conformance with each other is a legal necessity. Yet it is not a right, because it is conditioned on an intolerant society.

Winter makes a particular outstanding point in passing:

You know, perhaps transgender people offer an even more radical proposition, not only in proposing that gender can be cut loose from the biological body, but that gender can be something other than a source of oppression. Should we only be viewing gender as something to be destroyed, or should we be listening to transsexual people and considering the possibility that it's time to radically rethink our feminist ideas about gender in the light of what they have to tell us.
I think gender can be tremendously fun, and I know people who like playing with it. I have lowered everyone's expectations of me sufficiently that I can go along in a fairly neuter or even what some might consider masculine fashion for a while, and then shock my friends with an outburst of femininity -- sometimes to the point of high heels. But changing the biological body to comport with that of the traditional man or woman goes beyond fun (and if it's merely fun, it certainly should be treated as cosmetic). You can mix-and-match gender characteristics, but I doubt that most sex-transition professionals would happily countenance the bearded lady who changes her genitalia and adds breasts but refuses hormones. Saying that she sees herself that way seems more like BIID than GID.

On the other hand, there are bodily integrity concerns that result in what some might mutilation that I do take seriously even in a utopian society. For example, in the fabulous feminist future in which women receive great support of all kinds during and after pregnancy, I still wouldn't ban abortion because I see carrying a fetus and delivering a baby to be so tied to bodily integrity that to force an unwilling person to do it seems to me a kind of temporary slavery, particularly when coupled with laws that penalize a woman as a murderer if she consumes substances that lead to stillbirth. Those who say that abortion is an immoral interruption of the natural process would see the abortionist as even more in violation of the Hippocratic Oath than physicians who perform sex changes or limb removals, because the latter affect only the consenting patient while the former affects a non-consenting party. And pregnancy is, as the abortion opponents like to remark, only a temporary "inconvenience," while being stuck with breasts or other body parts one doesn't want is a lifelong one.

I'm not sure why I regard the ability to stop being pregnant as a no-matter-what right (I specify "stop being pregnant" because if we can transfer embryos or fetuses to willing adoptive uteruses, I would have no problem with making the killing of fetuses illegal; it is the impingement on the body, not on intellectual and emotional concerns about the existence of offspring, that I take most seriously), while sex-change insurance coverage is conditioned on intolerance, and mutilation gets no respect from me at all. It may have to do precisely with the existence of that other affected entity: the wannabe transsexual in a gender-neutral society at least can do almost everything that she would like to do even while she retains male hormones and genitalia; no social change can alter the fact that the unwillingly pregnant woman is slowed and weighted both literally and with responsibility, her body expanding out until the day she either will go through a great deal of pain for vaginal delivery, or go under the knife and anesthesia of the C-section. Perhaps this distinction is inspired by a bizarre, quasi-Burkean kind of conservatism that is willing to intervene to prevent further change, but not to make changes.

Posted by PG at 2:15 AM | Comments (2) | TrackBack

January 9, 2007

Fair 'n' Balanced Law School Hiring?

Another common complaint among conservative law students is about the liberalism of the faculty. Last year, when the hiring of Olati Johnson was announced, not only the Federalist Society mailing list but also conservative blogs and media carried the story of the ethics charge against her (which was solely for conflict of interest, not for having forwarded an e-mail; c.f. that against Manuel Miranda). The students' annoyance was mitigated by the announcement of a Scalia clerk's being hired, and now I not-quite-suspect that there could be a deliberate balancing in adding to the faculty, a kind of Missouri compromise in which every new free state liberal professor must be followed by a more conservative one. Consider the latest e-mail from Dean Schizer:

As you know, we have begun work on the 9th Floor of Jerome Greene Hall, and are building 39 new faculty offices, a number sufficient to allow the faculty to grow by 50 percent. As part of that effort, I am very pleased to report that this year's recruiting season is off to a strong start, as two distinguished scholars have accepted our offer to join the faculty on July 1, 2007.
-- Sarah Cleveland, a Rhodes Scholar and former clerk for Justice Blackmun who joins us from the University of Texas, is an expert on human rights and constitutional law.
-- Daniel Richman, a former Chief Appellate Attorney in the U.S. Attorney’s office in the Southern District of New York and a former clerk for Justice Marshall who joins us from Fordham University, is an expert on criminal law and procedure.
I am delighted to welcome them to the Columbia family, and to reinforce two traditional strengths of the school -- human rights and criminal law. More information about Sarah and Dan.
Superficially, these both may seem to be free states in light of the justices for whom they clerked, but while an interest in human rights and non-commercial international law seems to be peculiar to liberals, criminal law and procedure (which I frankly hadn't realized as a "traditional strength" of Columbia, given the petition that went around when I matriculated) can be places to affirm that Criminals Bad, Authority Good. Alas, Richman seems stubbornly protective of the criminals, at least when the police are as well; among the other accomplishments on his resume, he co-authored a brief on behalf of former or present law enforcement officials to maintain the Miranda warning as standard police procedure.

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Fed Soc Chapters, Take Note

Columbia Law School's development office (i.e. the people who hold the valuable alumni contact info) successfully secured funding for the "Neil Grossman Family Summer Fellowship," which means there's money earmarked specifically for rising 2Ls who would like to do public interest work, but have the reservations about the kind traditionally promoted by law schools. This represents a great success in communication among conservative/ libertarian students; an administration that -- whether some believe it or not -- essentially wants to attract the best students, produce the most influential graduates and receive the most money; and conservative/ libertarian alumni who are happy to help young likeminded people work on behalf of causes they favor.

Columbia Law School offers two fully funded, public interest fellowships for the summer of 2007 at conservative and/or libertarian legal organizations, including the Cato Institute and the Institute for Justice. Each fellowship will be awarded to a Columbia Law School student in the J.D. program class of 2009 or 2008, who demonstrates an interest in promoting American public policy based on individual liberty, limited government and the free market. Each Fellowship will provide a stipend of $4,200. Students may not split the summer between this Fellowship and another opportunity.

PLACEMENT: Applicants to this fellowship may apply for a placement at the Cato Institute, the Institute for Justice and/or any other organization that promotes American public policy based on individual liberty, limited government and the free market. Both Cato and the Institute for Justice have agreed to consider Columbia applicants and offer a summer internship to an appropriate student in accordance with this Fellowship.

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Today / 01.09.07

Today is Martyrs' Day, a Panamanian holiday that commemorates the January 9, 1964 riots over sovereignty of the Panama Canal Zone.

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January 8, 2007

And Texas Lacks Initiative

A New York Times magazine article on Asians and affirmative action remarks, "Voters are also sending a message, having thrown out racial preferences in Michigan in November, following a lead taken by California, Texas, Florida and Washington. Last month, Ward Connerly, the architect of Proposition 209, announced his next potential targets for a ballot initiative, including Arizona, Colorado, Missouri and Nebraska."

I know that California (Prop. 209, 1996) and Washington (I-200, 1998) voters passed initiatives to bar state entities from considering race in admissions and employment, and Michigan recently did so as well (Prop. 2, 2006). However, Connerly gave up on getting such a measure on the ballot in Florida when it was constrained by the state Supreme Court as legislation and opposed by Governor Jeb Bush (who came up with his own "One Florida" plan, which passed the state legislature and bans affirmative action in state universities and contracting but does not apply to cities or counties) as a constitutional amendment.

Texas doesn't even permit voters to get initiatives on the ballot through petitions. While we can amend the state constitution -- and have used this power unwisely -- it must get on the ballot by a two-thirds majority in each house. Nor has the legislature passed a ban on affirmative action; though the "10% Plan" guarantee of admission remains statutorily required, affirmative action also can be used since the Supreme Court's Grutter decision overturned Hopwood, which in any case applied to the entire Fifth Circuit, not just Texas.

UPDATE: Sententious blogger Jeremy Reff attacks the content of the Times article because he believes it to be advocating for quotas on Asian students. The only part of his post with which I can agree is that conflating the 1980s end of quotas on Asian students, with the 1990s end of affirmative action, is bad history and inflammatory analysis. It's also stupid constitutionally, given that the 1980s quotas were illegal under the Bakke precedent whereas affirmative action was constitutional in the 1990s and remains so today after Gratz and Grutter so long as it is done "holistically."

Perhaps because I lack the internal conflict between an Asian and non-Asian self -- at most, I can claim a conflict created by the general label "Asian" that in the U.K. usually means people who look like me, and in the U.S. rarely does; c.f. the interest meeting for the nascent Asian sorority at my alma mater at which I was the only South Asian -- I don't detect the hideous offensiveness Reff does. I do have to give him credit for surprising me by saying the Times has a pro-Jewish mission (in the following, DP = Jewish, MP = Japanese):

The Times, which decries historical DP quotas, and makes endless, endless hay of every perceived slight to DPs, every reaction to the DP homeland which is not favorable (I'm a fervent Zionist, by the way, so let's not start that thread here), every educational injustice foisted upon DPs, every pseudo-scientific attempt to assign qualities to DPs that are any more real than those cultural attributes of a people fucked by time and place, for a paper with such a mission to act so loathsomely, for a paper with such obligations to suddenly call into question the minority status of MP (who were locked up in this country!), for such a paper to possibly excuse quotas on MP in the interest of a "progressive facade" (great words from the complainant), for this paper to do such a thing is a shaming blindness.
Given the number of conservatives who see the Times as anti-Israel because it covers the suffering of Palestinians and Lebanese, a blogger on the right who perceives the Times to "make[] endless, endless hay of every perceived slight to DPs, every reaction to the DP homeland which is not favorable" is refreshing, if not wholly accurate. Again, perhaps because the liberalism I've picked up is not closely identified with being culturally Jewish, Jews being nearly nonexistent in East Texas and fairly low-profile at southern public universities, I don't see the Times as particularly Jewish except inasmuch as its audience of educated, liberal, upper middle class, New York City dwellers includes a significant proportion of Jews, as does its similarly-situated staff. Then again, I found Company slightly dated with its Catholic girl who is excited to be dating a Jew; at this point in in American history, many Jews have become dissociated from their religion but cling to culture to distinguish themselves from the general white mainstream, so we get Jewcy and Jewlicious.

My disagreement with Reff also probably has some base in different ideas about what can go into admissions decision making. In denouncing the Times article as questioning the "minority" status of and excusing quotas on Asian-Americans, he strongly implies that the UC system's current admissions policy, which has led to Asians' being the largest racial group, is a good one. In contrast, I favor consideration of factors such as students' geographic (maybe not have everyone from the suburbs?), socioeconomic, linguistic and other forms of diversity in addition to the standard formula of GPA + SAT + obligatory list of extracurriculars. It's a formula that's worked to my benefit -- particularly the standardized testing aspect -- but that doesn't make it the best way to form a class. I see the mission of universities, particularly public universities, not to ratify students' sense of their own merit but to provide our nation with people who will serve it, whether as business entrepeneurs, public employees, military officers, etc. If Berkeley's admission staff gets a candidate with lower numbers but a better probability of being useful than, say, me, that candidate shouldn't be excluded on the basis that I "deserve" that spot instead. This is not a style that comports with racial quotas, of course; it's the kind of thinking that gets labelled "holistic" and may well be inappropriate for dealing with tens of thousands of applications.

Reff seems guilty of the same "conflation of ending affirmative action in the late 1990s and the removal of the illegal anti-Asian quotas in the 1980s" that he rightly calls "low" when committed by Timothy Egan, but of which he appears unaware in declaring the Times pro-quota for evincing concern about the reduced number of African American and Latino students at Berkeley.

(He also conflates educational values with educational modes: "work hard, defer gratification, share sacrifice and focus on the big goal" are values; "see professors as authority figures to be listened to, not challenged in the back-and-forth Socratic tradition... did better solving problems alone and without conversations with other students" is a way to learn and perform.)

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To the Point of Plagiarism

While conscious plagiarism is obviously morally culpable, as well as ground for a civil suit when it rises to theft of intellectual property, I wonder whether the small pieces of others' writing that float in writers' brains but seem to them like their own -- or the phrases spontaneously generated that happen to be identical to ones already written -- tend to generate outrage or litigation. For example, in trying to find a Raymond Carver story online instead of having to buy it (how's that for stealing?), I noticed that another novel lifts a famous sentence from that story.

What We Talk About When We Talk About Love: "They leaned into the door as if against a wind, and braced themselves."

Alpenglow (Romance in the Rockies)
: "They leaned into the door as if against the wind, bracing themselves."

Janet G. Go may have never read Carver, but because her publisher let her work onto GoogleBooks, it's examinable in this fashion. The benefits of gaining readers, particularly for a little-known author, probably outweigh any cost to reputation if bits of copied -- whether intentionally, unintentionally, Jungian collective unconsciously -- material are detected. The use of GoogleBooks as a plagiarism detector was noted when the service began, and again a couple months ago when an author was outed by a Washington Post book review. The November Slate piece takes a skeptical view toward repeating even a single sentence of nine words, and Go's sentence is identical to Carver's for the first eight words, the ones that led me to her book in the first place.

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January 4, 2007

Backing Up to a Subpoena

In an article about online options for backing up computer files, only a brief reference to security is made: "All four companies insist that your files are encrypted before they even leave your computer. But if you still can�t shake the image of backup-company employees rooting through your files and laughing their heads off, then this may not be the backup method for you."

For those who have been noting the Bush Administration's proclivity for demanding information from internet services, however, there's a question as to whether such backups will be secure from government search as well as private sector embarrassment. It is a cliche that Americans and Europeans have nearly opposite attitudes toward privacy: Americans fight government intrusion while accepting the massive information gathering and sharing done by corporations; Europeans tend to accept that the government has good reason to watch them, but the GAP does not. Hence the ACLU's fear of public-private cooperation.

Certainly such companies will want to take a Google-esque stance as defenders of their customers' privacy, for fear that they otherwise will lose them. Even those customers who have no reason to fear Gonzales's reading their e-mails may object, as we often defend our privacy on principle even when no harm will accrue from its violation.

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January 3, 2007

Enron Desperado

Is there a reason that the press refers to future prison inmates as "surrendering" to a prison?

Former top Enron accountant Richard Causey has joined the ranks of ex-executives in prison. Causey, 46, was to surrender to a men's federal prison in Bastrop, about 30 miles southeast of Austin, by Tuesday afternoon to begin serving a 5 1/2 -year term for securities fraud. Early today, the Federal Bureau of Prisons' Web site was updated to reflect that he was an inmate at the facility.
His surrender came less than a month after his one-time boss, former Enron CEO Jeff Skilling, surrendered to a federal prison about 75 miles south of Minneapolis on Dec. 13 to begin serving a 24-year, four-month sentence. Skilling was convicted in May of 19 counts of fraud, conspiracy, insider trading and lying to auditors after a four-month trial. ... Two more ex-Enron executives are awaiting orders from a judge to surrender to prison:
� Michael Kopper, Fastow's former top lieutenant, who pleaded guilty in 2002 to two counts of conspiracy. He was sentenced in November to three years and a month.
� Mark Koenig, former investor relations chief, who pleaded guilty in 2004 to aiding and abetting securities fraud. He was sentenced in November to 18 months.
Was there any question as to whether Causey and Skilling were going to show up to serve their sentences (in the latter's case, while awaiting appeal)?

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Burger Bibliophiles

1L-to-be ChaliceChick peruses an opportunity to "own a book from the private library of Chief Justice Warren E. Burger -- Each book has his personal bookplate" and is surprised that Burger was a fan of Robert James Waller (who wrote the awful Bridges of Madison County and Slow Waltz in Cedar Bend, but whose newest novel got a decent EW review).

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January 2, 2007

Today / 01.03.07

Today in Congressional History (1947) - Proceedings of the U.S. Congress are televised for the first time. Sixty years later, the Democrats assume majorities in the House and Senate.

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