February 28, 2007

No Privacy at Public Utilities?

When I heard the story yesterday about the Gore family's high use of energy at the Nashville house where Al and Tipper work, the only part that really surprised me was that the conservative group that publicized the Gores' utility bills had been able to obtain that information. Getting monetary information with names attached, instead of anonymized aggregates, is generally rather difficult outside the area of political donations and spending. I can see why transparent elections are sufficiently desirable that the privacy of donors is outweighed, but I'm not immediately understanding the public interest that justifies pulling individuals' utility bills. Utilities are a mix of public and private, but that doesn't make them subject to identifying FOIA requests; the IRS is a wholly public agency, and I can't just ask them to give me my Corporations prof's tax data.

Maybe someone in the Gore household is burning a lot of energy on criminal activity, like heat lamps for pot plants, or on legal activity that simply would be very embarrassing to disclose, like a plug-in vibrator. Maybe a random one-month bump in gas expenditure was due to the week when someone in the Gore home was trying to pull a Sylvia Plath. I am of course exaggerating the speculation one could sensibly make of a utility bill, but until I hear a reason why Consolidated Edison should be able to disclose my bills without my permission, I'm not going to look kindly upon such an intrusion. Had the Tennessee Center for Policy Research asked Gore to disclose the information himself, I would have thought him a real punk if he'd refused, but the Center's ability to obtain it without notice or consent troubles me.

Discerning exactly how they got it is a bit difficult: one news report says, "Johnson said his group got its figures from Nashville Electric Service. But company spokeswoman Laurie Parker said the utility never got a request from the policy center and never gave it any information"; another initially said, "This information is based on electrical consumption reports from Nashville Electric Service, which are public record" but subsequently was changed.

(I do love the headline here that refers to Gore's defense that his carbon credits balance out his expenditures to make him energy-neutral: "GORE: But He Bought An Indulgence At The Church Of Native Energy, So It's All Good.")

Posted by PG at 4:43 PM | Comments (0) | TrackBack

February 27, 2007

Today / 02.28.07

Today is the 60th anniversary of the 228 Incident, in which the pistol-whipping of an elderly woman who refused to relinquish her black market cigarettes ended in the death of over ten thousand native Taiwanese civilians.

Posted by PG at 7:15 PM | Comments (0) | TrackBack

$200 from Tyson's

One can't reasonably expect conservative street theater to conform any more closely to reality than liberal street theater does. At the Code Pink March 2003 anti-war protest, I was holding up a stick attached to a span of blue cloth that made me part of a river, so I'm certainly in no position to mock Young Republicans for their attempts to use metaphor to illustrate political views, particularly when I'm not exactly sure what a river had to do with an unnecessary war in the desert. Nonetheless, there's a certain childish charm in the river and the protestors who were leaping about me to represent the fish, that is decidedly lacking in conservative attempts to spark debate*. Take "Catch the Illegal Immigrant," which a NYTimes editorial describes as "one player poses as the immigrant, and everyone else tries to find that person. There's a prize, usually $200 or less, which is not much, but enough to celebrate the cheap exploitation of a fellow human."

Clearly the Times editorial board is a long way from their undergraduate days if they don't think $200 is a significant sum to a college student living on ramen. If there were a $200 prize in real life for reporting legal violations to the proper authorities, I'd be hanging out at the local chicken processing plant waiting to turn in the management for hiring people whom they reasonably knew not to be authorized to work in the U.S. I'd get $200 and a critical legal studies-style "this was my experience busting people for breaking labor law" article out of it.

As you might be able to tell, what irks me about the conservative game is not precisely what irks the Times. Though their editorial predictably concludes, "Educators should teach the game players about the real world," I don't think shutting down "Catch the Illegal Immigrant" in itself would be very effective in such a teaching moment. I'd much rather layer the game than protest it: add in H2 visas, Tyson's Chicken, southern farmowners bitching about their unpicked crops because of the recent crackdowns, etc. Games are a perfectly valid way to educate people. The problem with "Catch the Illegal Immigrant" is that it is simplistic to the point of being moronic, not that it was the brainchild of a Republican National Committee intern; whether there is a connection between the two, I shall leave to the individual to judge. In real life, the money is to be made in fining employers, not in deporting illegal immigrants. Indeed, the deportation process is rather expensive, and not simply because of the due process requirements for which Republicans have as much patience as they ever do (i.e. very little when it involves the life or liberty of people who have broken a rule, very much when it involves property). Every illegal immigrant who is plucked out of America may have citizen offspring for whom the government must find foster care, and a job for which a new worker must be trained.

Sadly, one cannot expect much in the way of reality from street theater, or of complexity from Young Republicans, particularly if the complexity would target people with money and power rather than those without it. And so the conservatives will play their games, the liberals will joylessly protest them, and I'll be disgruntled that this happens at NYU but not Columbia.

* Hei Lun said of the marriage-only-for-the-childbearing initiative in Washington State, "This is like the conservative bake sale, except that that was a one-joke stunt that didn't harm or inconvience anybody whereas this has the potential to drag on for months and involves the state." I took issue with his analogy:

I'm confused as to how this is like the conservative bake sale, given that the people who are putting forward this bit of political theater are saying "we are LIKE the people who feel insulted by this," whereas conservative bake sales implying that African American students are unworthy of admission to the college usually are staffed by non-blacks. This is a significant difference: gay people are saying "Hey, our rights are being denied supposedly on the basis that we don't procreate together; how would you feel if your rights were denied on that basis?" It's quite different to try to tell a group of people that they actually are like you and therefore should take your side, than to tell a group of people that they are unlike and lesser than you.
Another commenter said, "I think the point of affirmative action bake sales is that it is university admissions departments who are telling a group of people that they are unlike and lesser than the rest," to which I replied,
Do the bake sale organizers ask the people to whom they sell what their SAT scores and GPAs were, and whether their parents are wealthy donors to the university, or do they assume based on skin color that all the black students got in on affirmative action and all white students got in on merit? (And that Asian students got in on overwhelming mindbending awesomeness.)
Hei Lun then said, "PG, the analogy is of an interest group taking their opponents' stated position to its absurd extreme to show how wrong it is." I clarified,
I understand why you made the analogy; I'm pointing out how these would differ in being "counterproductive." (Well, I suppose if you're the conservative group and you don't worry about getting black students on your side, it's not counterproductive.)

Childless straights are sought as the allies of gays in the fight against a procreation-centric framing of marriage; gay people are saying "Look, if this is what gives people the right to marriage, you're in trouble too." There's no similar strategic move with the affirmative action bake sales; they are intended to be a metaphor of college admissions, one in which all blacks bring less value than all whites. Unless the bake sales are meant to make explicit to black students "As long as there's affirmative action, all of us (white students) view all of your (black students') accomplishments with suspicion," and thus get black students to oppose affirmative action as being against their own interests, they are not bringing the black students to the conservative side. But even then, it doesn't exactly put the conservative students and African Americans on the same side against a third party, as the claimed similarity between gays and childless straights vis a vis procreation-centric marriage proponents does.

Posted by PG at 2:13 PM | Comments (0) | TrackBack

Jon Stewart's Searching Critique of the Judiciary

I never consciously realized until tonight, when I was reading yet another derisive comment about judges that mentioned their robes, just how important those garments seem to be in the minds of the judiciary's critics. It's a bipartisan tendency, too: Cass Sunstein scorns rightwing Radicals in Robes; Nelson Lund fears the Politicians in Robes. Maybe it's because the robes we keep on hand for mock trial judges are so crappy, but I don't think of robes as vastly dignifying. I had to tote back one that was borrowed from the dean's office, and though it was warm, it also had an odor of perspiration rather at odds with Olympian remove.

The Daily Show team's depiction of the naked Supreme Court offers the reader the opportunity to "Restore their dignity by matching each justice with his or her respective robe." Aside from Rehnquist's gold band, O'Connor's starched ruff and Ginsburg's antique kerchief, the robes are identical, whereas the justices' pasted bodies are as varied as their jurisprudence. Perhaps those for whom the robe, with its connections to the ecclesiastical courts, canon law and religious authority, creates an aura of undeserved prestige for judges, would be better off simply thinking of these judges in the nude. It's page 99 of America (the Book), which picture predates the advent of Chief Justice John Roberts, who has said, "Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision."

Posted by PG at 1:42 AM | Comments (0) | TrackBack

February 25, 2007

Quotent Bloggables

The exchange below between PG and Amber Taylor, particularly Amber's reaction to the Posner opinion, is the inspiration for this week's Quotent Quotable. There's something about us bloggers that creates this need to gripe. Maybe it's the job description, maybe it's the personalities attracted to the job description. But we sure like to gripe.

Homer, at first, took the opposite approach when he became a food critic. But after the newspaper's staff critics point out that Homer's lowest rating went to a Pizza he found under the couch with Hot Wheels on it, Homer changes his tune.

Marge: Who wants pork chops?!
Homer: [carefully tasting the food] Sorry Marge, I'm afraid this gets my lowest rating ever. Seven thumbs up.
Marge: You always liked my pork chops.
Homer: Marge, I'm sorry, but your cooking's only got two moves, Shake and Bake.
Marge: You like Shake n' Bake. You used to put it in your coffee.
Homer: People change, Marge. My palate has grown more sophisticated.
Marge: Oh yeah, what's a palate?
Homer: Oh ... it's a ... special time in a boys life when ... got to go! [rushes out]

Posted by Armen at 4:34 PM | Comments (1) | TrackBack

February 24, 2007

Today / 02.25.07

Today in History (1994) - U.S.-born Dr. Baruch Goldstein kills 29 Palestinian Muslims and injures 125 in the Cave of the Patriarchs massacre. He is killed by the survivors; the organization to whom he belonged is outlawed and the victims of the attack compensated by the Israeli government.

Posted by PG at 5:18 PM | Comments (0) | TrackBack

February 23, 2007

School As Mini-Democracy -- Not!

The remarks below about Posner's decision in the Brandt case have been rebutted in a post titled, "Now I am ticked off." Amber Taylor says,

I used to enjoy snarky, nasty judicial opinions like this. But the judge I clerked for was a true gentleman, and he always said that each case is important to someone, and thus we should keep our snark in check and give a reasoned and fair account in our opinions. This case was important to the kids who filed it (who are probably brats), but it's also going to be important to less obnoxious students who want to express a more sympathetic message but are foiled by autocratic administrators. Contra PG, students do sometimes have strong political views.
The idea that Posner's opinion lacked reason or that its account of the facts was unfair to the plaintiffs is simply not one with which I can agree. The gentlemanliness of Judge Richard Posner, or of any person who writes "snarky, nasty judicial opinions," is not a subject I feel capable of debating, particularly when that judge is faced with plaintiffs who demonstrated how important the case was to them by demanding bizarre injunctions against the publicizing of their misbehavior, even as they pursued a lawsuit using their real names and talked to reporters. Moreover, I specifically said that Tshirts stating a political message that administrators could not reasonably believe would be found disruptive (such as "Amend the 12th Amendment!") have a First Amendment protection with no counterbalancing weight in favor of Order.

In Brandt's case, when an outside body, a �Crisis Intervention Team,� was brought in by the school to evaluate the disruptive effect of the Tshirts, that body did not find them unduly so and the restriction on their wearing was lifted. Plaintiff Brandt's younger sister could wear the Tshirt to her heart's content. C.f. Tinker, in which the students were suspended and no attempt was made to weigh competing interests: "Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption." The Court's opinion emphasizes the extent to which the Des Moines school specifically discriminated against the anti-war viewpoint, while permitting the Nazi Iron Cross. Had the Chicago Public Schools Uniform Discipline Code's prohibition on clothing with "inappropriate words or slogans" been interpreted only to prohibit pro-giftie speech and not Tshirts that said "Porn Star" or "Talk Nerdy To Me," I would have more sympathy and Posner probably would as well.

My disagreement with Amber may come down partly to different ideas of the purposes of elementary and secondary schools. She may have attended schools where worthwhile ideas from one's classmates were more common than useless havoc caused by same. Having gotten a mediocre formal education in a school where the cop was armed and fights were occasionally serious enough to require an ambulance, I see the function of a school as a safe, orderly place for book learnin'. Learnin' should extend beyond the three Rs to art, music, health, etc., but the "personal intercommunication among the students" that Tinker identifies as "an important part of the educational process" is not the primary goal of establishing and funding public schools. We hire teachers to teach the kids, not just have the kids teach each other by hanging out, and to my knowledge no public school is required to have time for "personal intercommunication among the students." Students who want to have "personal intercommunication" are unrestricted from doing so outside school, and there's little reason to think the plaintiffs' parents would have limited their offspring's speech -- more likely facilitated it.

Amber writes as though school is 24 hours a day and therefore any speech regulation in that particular venue shuts down one's entire First Amendment life. I would object to state-sponsored speech restrictions in an environment that was the totality of one's existence, but happily school is not such. Much as adult life is concentrated in the workplace yet speech can be regulated there to ensure that the primary purpose of the workplace is met, minors' life is concentrated in school yet speech can be regulated there to ensure that the primary purpose of education is met. I dislike zero tolerance style policies because they often end up excluding students from schooling, but I have no problem with policies that may not fulfill Amber's dream "that in this day and age students would be encouraged to question the authorities who administer elections," when the questioning is through means that may be disruptive to the school's mission of formal education. This is in contrast to a democratic society as a whole, which has no such mission. As Posner notes,

In any event, it was not the protest as such that was forbidden, but merely a particular means of protest. The gifties were free to protest in more conventional, less potentially disruptive, ways than by the wearing of the Brandt T-shirt. They did so -- they petitioned the principal and made a presentation to the Local School Council at the principal�s urging and were not punished for doing so. Their parents amplified the gifties� voices of protest. With many routes of communication open to the gifties, the closing of the T-shirt route inflicted the most minimal of possible injuries, if injury at all (as we doubt), to the First Amendment.
What Amber calls "[t]he wannabe-�bermenschen's demand for electoral transparency[,] a reasonable request," was met with avenues for actually affecting the Tshirt elections process. If I wear a "2000 Stolen" Tshirt to the polls, it may be disruptive, but it also may incite other voters to demand change. If I wear a "Gifties 2003" Tshirt to school, it may be disruptive and it will have no effect on the supposedly protested Tshirt election process because even if the other students happened to agree, they don't decide the rules either, because school is not a democracy. If petitioning the sources of power and authority doesn't get you what you want, appealing to the 'tards ain't gonna do it either.

I don't find the plaintiffs to be elitist because they are "gifties" -- as my earlier post noted, I was a GT student who self-segregated from the regular kids too, and I don't feel shame or guilt about that; I likely would have bored them. The charge of elitism is directed at the plaintiffs for their belief that the school is supposed to revolve around them: non-gifties are "'tards"; the class Tshirt should represent the minority gifties rather than the class as a whole; the school election rules should have allowed their groupthink bloc-voting to work; the hallways exist for them to express their ire that it didn't; they shouldn't have to pay the costs of litigation they began.

Despite Amber's outrage, she never does explain what is the harm to the students that justifies this litigation and makes baseless Posner's annoyance, and her claim that it will be important to other students whose more sympathetic message will be "foiled by autocratic administrators" seems improbable in light of existing Supreme Court precedent. The rule derived from Tinker, Southworth, et al. is that public school administrators can impinge on students' speech rights in a way that they couldn't do if they were a legislature, so long as the regulation is not discriminatory among viewpoints. (There's no suggestion that had the inappropriate word "gifties" been left off Brandt's redesign, the Tshirt would have been problematic, given that it was acceptable as a submission to the contest.) If public schools are supposed to make citizens and not just literate persons of us, I suspect this process has been highly educational for any of the gifties open-minded enough to recognize the possibility of their not being the alpha and omega.

Posted by PG at 12:27 AM | Comments (4) | TrackBack

February 22, 2007

Wikipedia's Bad Writing and Good Facts

Of course, the Wikipedians have already responded to the NYTimes article about Middlebury College's history department's banning citation of the online encyclopedia. Though the article concludes, "And yes, back at Wikipedia, the Jesuits are still credited as supporting the Shimabara Rebellion," within hours of the article's online publication, someone had added "citation needed," and by the time I read the article today, another person commented,

The offending sentence from the article was (now deleted): "... the rebels themselves were backed by the foreign power of the Jesuits and the Roman Catholic Church." which is in fact accurate, but ambiguous. The students at Middlebury took it to mean physical backing (troops, supplies, money, etc..) which is wrong - when the original author (I assume) meant it to mean the Jesuits were "rooting" for the rebels to win (obviously). Just a case of poor writing on Wikipedia, but the facts were not wrong. With that said I support Prof. Neil Waters in not allowing Wikipedia, or any encyclopedia, to be cited by history students - professional historians don't cite encyclopedias.
The "don't cite Wikipedia because you shouldn't cite encyclopedias at all" line is the official one. The NYT article quotes Wikipedia co-founder Jimbo Wales as saying, �Basically, they are recommending exactly what we suggested -- students shouldn�t be citing encyclopedias. I would hope they wouldn�t be citing Encyclopaedia Britannica, either." But while citing encyclopedia entries on a topic of which one is supposed to be demonstrating expertise is obviously bad work, what about the citation to Wikipedia for simple facts that are not in themselves the point of one's writing?

A quick Lexis search shows the online encyclopedia to have been mentioned 1885 times in decisions, Supreme Court briefs and legal periodicals. Wikipedia has been cited in everything from a recent Posner opinion giving background about the defendant ("Radomski is a former trainer of the Polish boxer Andrew Golota -- the world's most colorful boxer. See http://en.wikipedia.org/ wiki/Andrew_Golota") to an amicus brief in the Supreme Court Seattle school assignment case* that cites Wikipedia multiple times on controversial subjects such as race, anti-semitism and apartheid, and defends it as "[a] source arguably more accurate than Encyclopedia Britannica. See www.nature.com/news/2005/051212/full/438900a.html." The Nature piece does acknowledge, however, that the quality of writing in Wikipedia is worse than that in Britannica, and this amateur style and lack of editing in the former appears, in the case of the Jesuits in the Shimabara Rebellion, to have caused there to be a sentence easily misinterpreted in such a way as to create factual error.

The Posner citation is harmless; even if the Andrew Golota entry is full of errors, it's an amusing parenthetical. The Seattle amicus brief is far more problematic, given that its arguments rest on a discussion of race and discrimination, but Wikipedia remains in the footnotes. In the case of Gilroy v. Letterman, I fear that if the plaintiff cited Wikipedia accurately, the online encyclopedia provides false hope to litigious lunatics: "UNPOPULAR SUBJECTS: THE BASIS COURTS MAY USE FOR DISMISSAL: Wikipedia encyclopedia stated that 'unpopular subject(s)' are the real reason that courts Dismiss cases when they provide 'Delusional' as their reason for dismissal."

* This brief is an astonishing piece of work, written by Timothy Don-Hugh Mak. An Australian with a Columbia LLM (!), he concerns himself with the litigation because his niece and nephew are American citizens whom he fears will be discriminated against because they are Asian, it claims that Mak "was the first person to question the legality of race-based affirmative action programs in Law Schools in the United States; and the first person to point out the deleterious effects of these policies on Asian students in particular"; that Asians are systematically disadvantaged by affirmative action programs; that the black and Latino students admitted also are not truly advantaged due to high dropout rates; and that such programs exist for the benefit of the white Establishment.

Based on this detailed statistical analysis and research, the main effect of affirmative action is simply to allow the not-particularly gifted offspring of the white Establishment to progress through selective high schools and universities unmolested by "unseemly" numbers of highly competitive Asian-American students.
The equation is simple: Replace hard-working ("nerdy"?) Asian-Americans with under-prepared and under-qualified minorities, thus lowering the grade averages required for the relative "success" of the "established" student population.
Thus, in one elegant move, affirmative action makes it easier for the offspring of the white Establishment to score reasonable grades and simultaneously eases their misplaced guilt over the abject poverty and disadvantage of blacks and Hispanics in their midst.
See, Asians are better at everything, including conspiracy theories. Beat that, Black Panthers!

Posted by PG at 5:41 PM | Comments (11) | TrackBack

For Once, Posner Is Not the Elitist

UPDATE: Follow-up.

Amber Taylor criticizes Judge Richard Posner's opinion in Brandt v. Board of Education as

dangerously elitist in its refusal to protect speech that is childish or uneloquent. ... Similarly, his brusque assertions about the existence of other avenues of protest, such as petitions to the principal and school council, ignore the importance of being able to communicate the message of a protest to different audiences; expressing something to one's schoolmates is not the same as expressing something to a school official. ... I wonder what else could be considered an "inappropriate slogan" in public schools: anti-war messages? anti-Bush messages? anti-homosexuality messages in a school with gay students? Posner's ruling tars all such expression with a pretty broad brush. It was apparently more important for the judge to snark at the students than it was for him to respect the rights at issue.
The plaintiffs are a group of "gifted" students who referred to themselves as "gifties," in opposition to the non-honors students with whom they share a Chicago public school and whom the "gifties" called "'tards"; the named plaintiff's mother is lead counsel. One of Amber's commenters asks, "Was it really necessary to continue using "gifties" and "tards" throughout the opinion? I mean, really." Personally, I find it ironic that Amber calls Posner the elitist in this dispute. Whatever snarkiness she detects in this opinion probably derives not from his scorn for Tshirts as speech, but for these "giftie" brats, and he uses their childish language to emphasize the conflicts existing at the school that were in the minds of administrators in their decision-making.

But the importance of context cuts both ways. The protesters in this case are school children. They are privileged schoolchildren in a school that contains a majority of nonprivileged children. They insist that unless their T-shirt is adopted by the entire eighth grade, they will as it were secede, and flaunt their own T-shirt. They do not recognize the principal�s authority or the legitimacy of the school�s procedures for determining the winner of contests.
In other words, the gifties were thinking There's no way another Tshirt could be better than ours! And the class Tshirt should represent the gifties, not the class generally! A parent who supports her child in referring to others as "'tards" needs to go back to kindergarten herself. I was in all the gifted/ honors/ Advanced Placement classes in my underperforming public school -- so backwards that I was the first person there to take the Calculus AP exam -- but I certainly never referred to people outside those classes as "'tards" and neither did anyone I knew. Maybe it's just something about being in a non-magnet Texas school, but we were well aware that many of the non-honors students were much cooler than we were, especially the athletes. (Another reason not to call the non-honors students "'tards" -- they tended to be bigger than us, too.)

Inasmuch as the gifties were trying to express something to their 'tard schoolmates, that was precisely what the school administrators were worried about: that the gifties' expression would incite fights and disrupt order. The gifties were free to wear their Tshirts outside school, in social interactions that most likely were limited to one another and did not include the 'tards. (I can't deprecate such self-segregation too much, as my high school graduation party invitation list almost matched the National Honor Society membership.) The eventually-lifted prohibition was on their engaging in speech that teachers feared would be taken personally and angrily by other students. Pro/anti-war, pro/anti-Bush, in eighth grade even pro/anti-choice messages all are suitable political speech for school because children mostly don't care enough about political issues to become disruptive over them. Direct insults, whether of another student's race, religion, sexual orientation or educational status, on the other hand, are far more likely to create problems for administrators who are harried enough in just trying to get these damn kids to graduate so they can start with a new bunch of hellions.

Perhaps tutoring just has given me more fellow-feeling with the teachers than with the students, but my sympathy is far more with those who have to educate than with the obstreperous adolescents too self-obsessed to recognize when their preferences may impede that objective. Nothing personal against the students at Beaubien Elementary; it's the nature of teenagers to be selfish and immature, which is why we don't have teenagers run the schools. And the necessity of order in schools, much like the necessity of order in public life, does not allow authorities to burden speech excessively. At the same time, the very existence of a non-school public life means that school restrictions inherently are far less onerous than general governmental restrictions. If I can wear my giftie shirt everywhere except school, I still can express my sentiments to my schoolmates, my neighbors and the public generally. I just don't have the specific academic venue as a stage for my speech. Admittedly Posner says,

The defendants also contend that there was a danger that the non-gifted children would be incensed by the gifties� refusal to accept the result of the election, and violence might result; there apparently had been a shoving incident between a �gifty� and a �tard� a week before the gifties started wearing the Brandt T-shirt. But the evidence of tensions between the two groups of student was not developed, and so cannot be a ground for upholding the defendants� actions.
Nonetheless, that administrators reasonably had disruption as a concern is part of the rationale behind giving administrators discretion in the first place: "Prohibiting children from wearing to school clothing that contains 'inappropriate' words or slogans places appropriately broad limits on the school authorities� exercise of discretion to maintain a proper atmosphere."

It's easy to say now that elementary and secondary school are a decade behind me, but I just don't see speech within those confines to be as vitally important as speech in public life generally. Moreover, Amber misses what Posner is really deriding: not the childishness of how the message was communicated, but the childishness of the message itself. Her reference to Tinker is inapposite because there the message was a quite serious political one, and Posner actually cites Tinker to support his argument that "clothing as such is not -- not normally at any rate -- constitutionally protected expression." He points out that the plaintiffs wisely are not asserting the T-shirt itself to be protected speech, only when the T-shirt is worn to protest the election for the official class Tshirt. "We must be precise about the right that the plaintiffs sought to vindicate by protesting. It is the right to an explanation by the school for how the election to pick an official eighth-grade T-shirt was conducted." The subject of protest probably would be an improperly content-based rationale for regulating protest, but it's a perfectly suitable explanation for the tone of Posner's opinion. Indeed, that tone was predictable from his question at oral argument: "'Why do people bring lawsuits for such trivialities?' Judge Richard Posner, a notoriously tough jurist, asked [lead counsel and named plaintiff's mother] Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. 'Have they been harmed, these Gifties?'"

Posted by PG at 9:53 AM | Comments (0) | TrackBack

February 21, 2007

Columbia OutLaws Get It Right

Even as the administration funds a luxury bus for lobbying, the dean treads the standard discussion-is-great! line, and the professors take up Chief Justice Roberts's invitation to voice their disapproval, the Columbia OutLaws urge the practice I've been advocating since my first year and that was rejected by the Student Senate:

Dear Fellow Students,

We are all at law school for a reason. For some of us, it�s our first step toward becoming a partner at a prestigious law firm. For others, we�re on our way to a career in politics. Still others hope to serve the public interest. For some of us, our ambition has always been to serve our country as members of the armed forces. Like most of the students here, we excelled in college and are working hard in law school. To the military, however, our dedication does not matter. To the military, the gender of the person we love is a bar to effective representation of our country. To the military, who we are is incompatible with our desire to serve our country in a time of need.

Outlaws regrets that Columbia Law School has been economically coerced into allowing the military to recruit on campus in violation of the Law School�s anti-discrimination policy. The military�s �Don�t Ask, Don�t Tell� policy implies that gay people are less than, that they are an inferior class of individuals. Outlaws finds this stance intolerable.

Outlaws is committed to encouraging Congress to change its policy and lift the ban on openly gay service members. To that end, Outlaws is asking students who are interested in seeking employment with the Judge Advocate General to interview off-campus at one of the many recruiting stations throughout Manhattan (nearby locations are listed below). By taking this small action, students will be respecting the space created by Columbia Law School � a space where discrimination is unacceptable. If students refuse to participate in military interviews on campus, Columbia Law School will not be forced to violate its nondiscrimination policy and the rights of its gay students.

In response to the military�s presence on the Law School campus this Thursday February 22 and next Wednesday February 28, we would like to begin a dialogue with students who plan to interview off-campus to suggest ways in which you can make clear your disapproval of the �Don�t Ask, Don�t Tell� policy while still serving your country through JAG. Your decision to interview off-campus will not only represent your support for your colleagues, it will also add to a growing national desire to change this discriminatory policy.

Columbia Law School is a place where all students should feel respected and valued. The military�s �Don�t Ask, Don�t Tell� policy is an affront to that goal. We hope that you join Outlaws in our effort to make the military a place for everyone.

Columbia Law School Outlaws

Nearby recruiting locations
HARLEM (Army and Air Force), 76 West 125th Street, New York, NY 10027, (212) 860-5084
LINCOLN CENTER (Army), 141 West 72nd Street, 2nd Floor, New York, NY 10023, (212) 787-0404
TIMES SQUARE (Army and Air Force), 200 West 43rd Street, New York, NY 10036, (212) 575-0450

[Emphasis added.]

Posted by PG at 4:39 PM | Comments (1) | TrackBack

February 20, 2007

Today / 02.22.07

Happy 275th birthday to George Washington, 75th to Ted Kennedy and 10th to Dolly. Although Washington and Dolly both are dead, recently he's gotten reframed, rediscovered and repossessed; the FDA declared milk and meat from clones to be safe; and Kennedy is in great power and spreads like the green bay tree.

Posted by PG at 5:42 PM | Comments (0) | TrackBack

The Relationship of Power and Privilege to Discrimination That Is Invidious

UPDATE: Responses to Heart, including those she has censored from her blog, here.

I've never attended nor had much interest in attending the Michigan Womyn's Music Festival, though I've been aware of it since college when one of my queer friends went as a research project for her Anthropology honors thesis (or as she likes to put it, "I got the University of Virginia to pay for me to make out with girls for a week!"). I like women, I like music, but Michigan and mud do nothing for me. In observing the debate about whether the Festival should continue to bar women who were born with male genitalia, I'm always struck by how convinced the people who defend the Festival's discrimination against transsexuals are that women-born-women are the most powerless, underprivileged people possible in terms of gender. That attitude is well represented Festival founder and producer Lisa Vogel's statement, "Supporting womyn-born womyn space is no more inherently transphobic than supporting womyn of color space is racist."

So is supporting white-womyn-only space racist? Shouldn't every sub-group within the community have a room of her own? I doubt that the Festival would have a white-only tent, because the organizers recognize that being a white middle/upper-class woman still tends to be treated as the default woman's experience, so inevitably most of what is considered to be woman's experience at the Festival will be that. (For example, talk about Take Back the Night and how much it sucks not to be able to walk through a "bad neighborhood" tends to ignore the low-income women, often women of color, who live in that "bad neighborhood" -- it's represented as frightening foreign territory that must be occupied and civilized, never as one's own 'hood.) Therefore giving womyn of color a space to share their common experience makes sense.

In the same way, being a woman-born-woman also is the default woman's experience. I don't understand why women who have the privilege and power of social approval for their gender identity think they're being victimized by uppity transwomen who aren't respecting them. The transwomen are saying, "Ain't I a woman, even if my experiences don't fit into the default Woman's Experience?" Biscuit and others seem heavily invested in declaring that one cannot be a woman without having been born with a vagina, yet are unwilling to admit that this is a transphobic -- or for those who dislike the misuse of "phobic," a trans-denying -- attitude. They want to keep their queer friendly credentials even as they exclude the people who have been most hurt by the insistence that "masculine" people have XY chromosomes and "feminine" people have XX.

It's like a bad conservative joke about how a group has become so focused on its victim status that it can't recognize how other people might have it worse. The womyn-born-womyn go on about the male privilege that Male-to-Females have had, while ignoring that MTFs' refusals of male identity frequently mean that they can access the privileges of neither sex. (Yes, women do get some gender privileges, though they're mostly ones I don't want.) The refusal of these alleged feminists to recognize that having a penis can be a bad thing sometimes strikes me as the biggest threat to the feminist movement's continued viability, not only with regard to transfolk but also with regard to issues that impact men more damagingly than women, such as prison rape. Feminists should be the biggest experts on male prisoner-on-prisoner rape, because they can bring the insights of heterosexual sexual assault to bear on the problem, particularly the coercion-consent continuum negated by the Prison Rape Elimination Act's assumption that all homosexual sex in prison must be rape. Yet I fear that the widespread belief that feminists care solely about women-born-women prevents those analyzing men's problems from looking to feminists for help, because feminism so often is caricatured -- and thanks to people like Vogel, sometimes is accurately depicted -- as seeing only women as victims and men only as perpetrators.

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How Hillary Clinton Is Like the In Re Disney Plaintiffs

It's one of those theories that makes sense at midnight when you've had five hours of sleep the night before.

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February 18, 2007

To CIR, It's Racism

Prof. E. Volokh praises the Center for Individual Rights for filing a class-action lawsuit against Virginia Commonwealth University and Dow Jones, the sponsor of nationwide Urban Journalism Workshops. After seeing an article advertising VCU's workshop --

Richmond Times Dispatch, Feb. 26, 2006
Summer workshop calling for applicants; High school students invited to try out for journalism seminar
The 22nd Urban Journalism Workshop, designed to help high school students of various racial and ethnic backgrounds improve their journalism skills, will be held June 18-30 in Richmond. ...
The student who demonstrates the best journalism skills - taking into account improvement, quality of work, enthusiasm and other factors - will receive a $1,000 scholarship from The Times-Dispatch that can be applied to his or her college education.
-- Emily Smith was interested in applying. According to her attorney, Center for Individual Rights President Terence Pell, Smith didn't understand that race or ethnicity was part of the evaluation of applicants.
"The article said the workshop requested students from diverse racial and ethnic backgrounds," Pell said. "Diverse could mean anything.
"After talking with her parents, Emily didn't know what that meant," he said. "So they decided to apply anyway."
Pell said Smith had no reason to believe white students were not allowed. Smith also thought she might fit into the definition of a minority, either from being female or having muscular dystrophy.

Smith applied, was accepted, and then revealed in answer to a direct question that she was white, at which point she was told that she was ineligible for the program. CIR sued, VCU and Dow Jones have settled, and Smith will attend during the summer of 2007 rather than 2006. As part of the settlement, Dow Jones agreed not to consider race or ethnicity in the future, and has changed the wording on its site accordingly. Many of administrators of the programs apparently haven't been notified to do the same. The website for the workshop held at San Jose State still says, "Latino, African-American, Native-American and Asian American students are strongly encouraged to apply";
the one for NYU says it "is designed to encourage minority students to consider a career in journalism" and will admit "[t]wenty minority high school juniors and seniors";
the University of Kentucky still advertises last year's program: "This workshop is for students who will graduate in 2006, 2007 or 2008 and who are of African-American, Hispanic, Asian-American or Native American descent. ... The reporting focus for this workshop will be on sports, girls are encouraged to apply";
St. Thomas in Minnesota says, "The workshop is targeted at students of color in hopes of encouraging greater diversity in the profession."
The statement on the left sidebar of Seattle University's website is the most extensive. "The Journalism Summer Workshop seeks out talented high school students of color, interests them in the world of journalism, and establishes a pipeline as they go from high school to college. Why? There are too few professionals of color in journalism. The lack of diversity in news operations hampers the ability to be fair and accurate and to inform the public responsibly." The right sidebar includes lists of "Journalism of Color Associations" and "Ethnic Media" (where ethnic = en espanol).

CIR's complaint in the case argued that there was no "compelling reason to exclude individuals from the Workshop on the basis of race," and that even if there were a compelling reason, "the complete exclusion of applicants on the basis of race is not narrowly tailored to achieve that interest." This is Grutter/Gratz language. A racially diverse student body that would supply a racially diverse educated population for the military and private sector has been found to be a compelling state interest, and a "holistic" approach to such diversity was deemed acceptable by the Supreme Court. The settlement, however, precludes the Workshops from considering race even to the extent that Michigan Law School was approved in doing.

CIR doesn't seem to want any program that avowedly seeks to improve the representation of blacks, Latinos and Native Americans in higher education or in professional fields. Remember that one of the things colleges were told they should do instead of using race in admissions was to improve the academic credentials of the applicants they sought to admit. But now CIR is attacking that form of affirmative action -- outreach to improve the skills of underrepresented racial minorities -- as well. Pell says, "It's OK to target underrepresented people. You just can't do this based on race," but that presumably means that any program that considers race is subject to attack by CIR for unconstitutionality.

For example, a few years ago VCU started a partnership with five Historically Black Colleges and Universities (HBCU) to improve academic and research opportunities for minority undergraduate students and faculty. The goal is to "increase the number of minority health professionals and researchers nationwide, with the hope of promoting better health outcomes for underrepresented minorities... there is a significant lack of racial diversity in health care policy, administration, researchers and health practitioners."

The press release is awash in language about opportunities given on the basis of race, and should be a fertile hunting ground for CIR in new litigation: "In the past three years, UNMC [University of Nebraska Medical College] has provided summer research experience for 40 minority undergraduate students, 26 of whom are from HBCUs. Twenty-two of these students were awarded NIH minority undergraduate stipends."

Yup, this flagrant racism and reverse discrimination victimizing white students is perpetrated even by the federal government. Why are VCU and UNMC singling out HBCUs for partnership? What about the academic and research opportunities that white students and faculty need? Why isn't VCU looking to work with schools that are mostly white instead of ones that are mostly black?

(For that last question I say only VCU because even in my ventriloquized outrage, it's hard to imagine the University of Nebraska can find schools substantially whiter than itself.)

Posted by PG at 1:58 PM | Comments (2) | TrackBack

February 17, 2007

It Was Free Spermicide, Dammit!

Because of my belief that the state has enormous power to regulate consenting economic conduct due to reliance on the state for the upholding of contracts, but not so much power to regulate consenting non-economic conduct that does not rely on the state, I personally am convinced that the state has the right to prohibit the sale and purchase of sex toys (as well as the sale and purchase of sperm, eggs and surrogacy, though the right to create and raise a family is of longer standing than any sexual liberty). Even if you disagree with me -- as most people probably do -- there's still an obligation to get your facts right, which is why it makes me crazy when commentators misrepresent what actually happened in famous Supreme Court cases. Take Julian Sanchez: in criticizing the 11th Circuit's Valentine's Day decision to uphold an Alabama statute that prohibits commerce in sexual devices, he says "Two of the seminal privacy cases of the last century -- Griswold v. Connecticut and Eisenstadt v. Baird -- involved contraceptives, which were publicly sold and distributed commodities."

The Connecticut law challenged in Griswold dated from 1879 and prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception." In contrast, the Alabama law �It shall be unlawful for any person to knowingly distribute... any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.� If I'm bringing back '70s consciousness raising parties with the mirrors and I provide everyone a sex toy out of the goodness of my heart, I'm not violating the Alabama law, whereas if I'd been distributing free condoms to married couples in Connecticut, I was subject to arrest. The Massachusetts law in Eisenstadt prohibited the distribution of contraceptives by anyone except a doctor or pharmacist, as well as banning their distribution to unmarried women. William Baird was charged with a felony for distributing contraceptive foams during lectures on population control at Boston University -- not for selling them, but for giving them away. (Didn't want BU folks reproducing, I guess.)

As the 11th Circuit highlights, "The statute does not prohibit the use, possession, or gratuitous distribution of sexual devices," any more than an anti-prostitution law prohibits the gratuitous distribution of sex itself. It's not so much about being public as it is about being pecuniary. And it's about being pecuniary intrastate, because I would be surprised if Alabama made an effort to prosecute internet retailers who mail these tools of Satan in discreet brown boxes with AMAZON.COM stamped on them. For one thing, it might entail invading individuals' privacy in their internet use, mail and homes, whereas shutting down the local "novelties" shop is much easier, both practically and constitutionally. Concerns about "public morality" are cited, but I think the court's failure to mention, when saying "This statute targets commerce in sexual devices, an inherently public activity, whether it occurs on a street corner, in a shopping mall, or in a living room," the commerce that occurs in the ether of online communications may be significant.

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Burger's Marginalia

Brett Marston saw the same sale of Chief Justice Warren Burger's library that ChaliceChick did, and picked up some of the books with lots of Burger's notes so they wouldn't get lost among various buyers. He's made the marginalia available to the rest of us with several posts: the first one here, and the rest collected here.

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February 16, 2007

Late to Conscience

As an opponent of the U.S. invasion of Iraq, I ought to be sympathetic to those who are trying to avoid being part of it, but I find myself deeply exasperated by many of the men who are litigating the issue. As Armen said of one, "As much as I'd like to sympathize with 1LT Watada, I think he broke one of the most fundamental rules governing the armed services. No soldier should have to obey an immoral order, but the legality of the war, and by implication his deployment orders, do not constitute immoral orders. He broke the law, and he should be punished for it accordingly."

But today it's Army Specialist Agust�n Aguayo who is annoying me. He's a medic with the Army�s 1st Infantry Division -- one of the guys who patches up those injured in battle, including enemy POWs -- but he's claiming a conscientious objection and his lawyer says that his beliefs have "crystallized" since joining the military in 2002, such that he no longer can take a life. He served as a combat medic in Iraq from February 2004 to February 2005, having applied for conscientious objector status shortly before his deployment. He then refused to re-deploy, deserted in Germany and now is held in a U.S. military prison. His lawyer says, "'These cases are hard for people to believe because they involve a change in people's beliefs, but when you think about how old they were when they signed up, it's not that surprising at all." Aguayo was no teenage GED recruit, however; he's 35, married with adolescent children. In his statement to the U.S. Court of Appeals in D.C., Aguayo said,

By doing guard duty, appearing to be armed, even without bullets, I gave the false impression that I would kill if need be. I am not willing to live a lie to satisfy any deployment operation. By helping countless soldiers for �sick-call� as well as driving soldiers around on patrols I helped them get physically better and be able to go out and do the very thing I am against � kill. This is something my conscience will not allow me to do. Although I myself did not pull the trigger, I now realize that what I did as a non-combatant nonetheless supported and enabled these missions.
I suppose at a certain point, the Bush Administration would pull out of Iraq if the war lacked sufficient medics, but absent a widespread refusal by such support staff, one less medic means there is just one less person to help care for the combatants who may not want to be there either, but who need medical care nonetheless. Their claims do not seem to trouble Aguayo.

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Quotent Quotables

After being labeld a "fair dancer...not good, but fair" by my EU Law professor, I decided this week to focus on more substantial events. This week has seen a flury of stories about the pending surge in Baghdad and Anbar. Sadr may not even be in Iraq. But at the same time some Sunnis are now cooperating with American and Iraqi forces. Though the Kurds and the Arabs may be going to blows fairly soon.

With all that, it's worth remembering that historically the Middle East hasn't really been a symbol of peace and tranquility. With that, I bring you this week's quote from Monty Python's Life of Brian. Although I hope the scene is familiar to all, the premise is that an underground organization called the People's Liberation Front of Judea is planning the ouster of Romans from the Holy Land. Their leader, Reg, has posed the question what have the Romans ever done for us:

Francis: Yeah, they certainly know how to keep order. Let's face it. They're the only ones who could in a place like this!
Commandos: Hehh, heh. Heh heh heh heh heh heh heh.
Reg: But apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us?
Xerxes: Brought peace
Reg: Oh, pea-- Shut up!

Such is the world of the occupying force.

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February 15, 2007

It's Mishomony, and Allies Gotta Wait for the Acclaim

Despite the term's lack of literal accuracy, people who hate homosexuals continue to describe themselves as "homophobic."

One week after retired NBA player John Amaechi publically identified himself as gay, retired Heat guard Tim Hardaway said on a Miami radio show that he would not want to play with a gay man.
"You know, I hate gay people, so I let it be known," Hardaway said Wednesday, according to a transcript on the Miami Herald Web site. "I don't like gay people and I don't like to be around gay people. I am homophobic. I don't like it. It shouldn't be in the world or in the United States." Hardaway was a guest on the show and was asked at the end of the interview how he would handle having a gay teammate.
I'm disappointed that Hardaway apologized, because you just don't hear from the open haters much anymore; even the religious conservatives who get on TV feel the need to couch their feelings as a desire to bring sinners to Jesus and vaginas. At least Hardaway didn't claim he was drunk, that his comment came from having been attacked by the group he now was attacking, or that he needed to go to homophobia rehab.
Amaechi also said he had not heard from a single former teammate or NBA player, but had been contacted by Boston Celtics coach Doc Rivers. He also urged heterosexual players to support the cause.
"It's hard to get straight guys to step up," he said. "When men stood by women during the suffrage movement, they were called progressive and bold. When whites stood by blacks, they were heroes. But a straight guy standing up for a gay guy faces discrimination, and that's a big part of the battle we're fighting."
Actually, when whites stood by blacks during the civil rights movement, some of them got murdered. The allies of minorities struggling for equality don't get beat up quite as badly as the people they're supporting, but they're rarely considered heroes until the cause has won.

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February 14, 2007

Columbia's Ameliorative Efforts

Columbia's method of coping with Rumsfeld v. FAIR, in which the Supreme Court unanimously upheld the Solomon Amendment's requirement that law schools accept military recruiters or forfeit federal funds for themselves and their associated universities, thus far consists of buses to D.C. and Boston and an e-mail from the dean. To wit:

As part of the Law School's Solomon Amendment amelioration efforts, Columbia is working with other area NYC law schools to participate in the Servicemembers Legal Defense Network Lobby Day on Monday March 26. There will be a bus leaving Fordham Law (140 West 62 Street) on Monday March 26 at 6am and returning to Fordham Law by 6pm. The luxury bus (air conditioned, reclining seats, toilet, sound system, dvd player) and participation in the day's activities is free of charge for Columbia students. ...
As part of the Law School's continued Solomon Amendment amelioration efforts, we will be sponsoring a group of students to attend a conference on the United States military's Don't Ask Don't Tell policy. The conference is taking place at Harvard Law School on March 2nd and March 3rd.
The basic impulse behind this program is correct: the judiciary has proven unhelpful in remedying an ill, so all efforts will have to go toward legislative change. Of course, Congress has been getting lobbied for years to change its policy on homosexuals in the military, but the combination of a war in which we're lowering standards* and our allies have gay soldiers (the presence of women and homosexuals doesn't seem to have affected Israel's ability to whup ass), growing acceptance of homosexuality within the military as well as general society, and a newly Democratic Congress may make this the year that Don't Ask, Don't Tell is repealed, though at the moment only 112 representatives are co-sponsoring Meehan's Military Readiness Enhancement Act. I question how much undecided politicians will listen to lobbyists who are connected to neither the military nor the congressperson's district, and therefore whether such a lobbying effort is the best use of our resources.

Dean Schizer's message was as follows:

Over the next few weeks, the U.S. Army, U.S. Navy, and U.S. Air Force Judge Advocate General will conduct interviews at the Law School. As you know, Columbia has a long-standing nondiscrimination policy, under which employers who use Law School facilities in recruiting are asked to pledge that they will not discriminate based on numerous factors, including race, sex, religion, or sexual orientation.

The military's "Don't Ask, Don't Tell"� statute cuts against our strongly held conviction that employer hiring should be solely based on merit, and without regard to factors including race, sex, religion, and sexual orientation. The U.S. Army, U.S. Navy, and U.S. Air Force Judge Advocate General are being permitted to interview at the Law School pursuant to federal legislation known as the Solomon Amendment. Under that legislation, a law school's refusal to permit the military equal access to recruit on campus can result in the withholding of a wide range of federal funding to an entire university.

As a community, we are mindful of the military's status as an institution that protects the nation. We admire the courage and self-sacrifice of our troops and appreciate the particular contributions of military lawyers in an age when national security and personal liberty must be balanced in difficult new contexts. We believe strongly that those of our students who choose careers in the military can offer invaluable service to the nation. This very certitude renders it even more acutely troubling that our gay, lesbian and bisexual students are precluded from doing so, due to the "Don't Ask, Don't Tell" statute.

I encourage you, as future advocates, to participate in a robust, vibrant, public conversation around the issues raised by military recruiting. It is the role of a great law school -- including both its students and faculty -- to explore contemporary legal issues in an open, collegial, and thoughtful way. We urge you to examine this issue through the various ameliorative programs at the Law School and the greater university during the course of the semester and in conversations with your peers, professors, and administrators.

If the law school wants to embody and not just mouth its simultaneous support for the military and for gay students, encouraging students interested in JAG service to interview off campus still seems like the best option. Instead of creating tension between gay students unable to serve openly and their straight peers who would like to interview, or making the latter feel guilty, the law school could help both groups by making the off-campus interview option easier, and the on-campus interview an unused option. Thus the military technically is able to violate Columbia's nondiscrimination policy, but it will gain no recruits in doing so -- only at their own offices.

* Ironically, now that same-sex sexual activity no longer can be criminalized, the military is increasing the number of moral waivers it gives recruits with criminal records, including offenses like aggravated assault. I'm all in favor of letting people busted for possessing a bag of pot or running a red light join the military, but inviting folks who have previously shown violent tendencies is not a great way to avoid future Abu Ghraibs.

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For Your Valentine's Pleasure

Maria Golia sees the sexy side of Islam:

Likewise, Hirsi Ali erroneously states that "there is a strict taboo in Muslim families on talking about birth control, abortion and sexual violence". Islam, like the Judaeo-Christian traditions, bans premarital sex, but it does not ban birth control. The Prophet Muhammad advocated coitus interruptus -- not the most effective means of family planning, but in keeping with Islam's encouragement of sexual activity as a source of marital pleasure, not solely of procreation. Egypt's state-sponsored birth control programmes began in the 1960s. In Iran, condoms manufactured in a government-operated facility are distributed through clinics and state-sponsored family planning centres. By contrast, the Vatican, which condemns "artificial" birth control, recently announced that its ban on condoms may be lifted -- for married couples where one partner is HIV-positive. Islam permits abortion only under certain circumstances, but several former Soviet countries with Muslim constituencies, as well as Tunisia and Turkey, allow it.
I would point out to Italian-American Golia that merely because Islam permits birth control and some abortion does not mean that discussing such things is not taboo within families; people assume because of the Kama Sutra that Hinduism celebrates sexuality, but I don't recommend carrying that attitude into most temples, no matter what kind of art they may have.

Posted by PG at 12:32 AM | Comments (2) | TrackBack

February 13, 2007

A Goldman Sachs Style Law Firm

I'm hesitant to discuss BigLaw economics again, as my last attempt showed that a) I don't know what I'm talking about; and b) one of my co-bloggers is much better at it. Nevertheless, after reading two posts at Above the Law this afternoon, I couldn't help but wonder: why are we so fixated on salary? That's not to say that bonuses don't get plenty of attention in their season, but it's in a quasi-salary fashion, i.e. focused on across-the-board rewards. Law firm bonuses are reported as a specific sum depending on grade, whereas investment bank bonuses were averaged because different people were given different amounts. And not giving bonuses at all doesn't seem to bring the shame that failing to match higher salaries does.

Consider a highly unscientific survey of law firm associates that revealed the majority would take a cut in pay proportional to the cut in the billable hours requirement. If firms paid in a more backward looking fashion, wouldn't it be easier for people to individualize the number of hours they worked? Those who want to go home and walk the dog themselves can have the hours and money appropriate to their preference, while those who want to pay someone else to walk the bitch can as well. Compensation also could be more closely commensurate with the quality and challenge of the work, which might force the firms to realize that paying so much for document review and due diligence work is silly.

Two obvious problems with this approach: people like to get their money earlier rather than later, so even if Seyfarth Shaw and other firms on the "list of shame" plan to make up for their failure to salary-match by beating the market at bonus time (including an additional amount for the time value of money), young associates with loans and other monthly expenses to pay might be unhappy, despite looking to the IRS just like their higher-salaried, less-bonused peers. Perhaps more importantly, letting people figure out over the year how much they want to work, instead of having a pre-set requirement at the beginning, would wreak havoc on planning. How can the partners know how much work to take on, if they don't know how much work will be done?

Posted by PG at 6:57 PM | Comments (0) | TrackBack


I'm still trying to cope with the idea that there's a "Supreme Fashion Court" at the University of Chicago, but OK:


People of the University of Chicago Law School, plaintiff,
Lior Jacob STRAHILEVITZ, defendant.


Citation 1 G.Q. 1 (2007)

The People of the University of Chicago Law School, through the Justices of its Fashion Court, state and allege the following:

1. Plaintiff is informed and believes, and upon that basis alleges, that defendant is an assistant professor of law at the University of Chicago Law School.

2. Plaintiff is informed and believes, and upon that basis alleges, that defendant teaches the legal subject of Property to Class of 2009 sections A, D, and E in Classroom III on Mondays, Tuesdays, and Thursdays of the University of Chicago Winter Quarter.

3. Plaintiff is informed and believes, and upon that basis alleges, that defendant did, on the 29th of January 2007, wear a grossly unmatched tie and shirt combination to his employment, to wit: a white dress shirt with vertical dark-blue stripes and a baby-blue tie with diagonal stripes.

4. Plaintiff refers to and incorporates herein each and every allegation of �� 1-3 of this Amended Complaint.

5. As a result of the actions described in �� 1-3 of this Amended Complaint, plaintiffs� sense of vision was gravely offended and an otherwise hair-raising and exciting lecture on the history and constitutionality of zoning regulations was disrupted.

6. As a result of the actions described in �� 1-3 of this Amended Complaint, the defendant is alleged to have perpetrated the fashion crime of aggravated sensory assault against the plaintiffs.


Wherefore, plaintiffs pray for judgment against defendant as follows:

1. Declaratory relief in the form of declaring the defendant to be poorly dressed;

2. The penalty of death by wood-chipper against the defendant�s offending tie;

3. A two-week probationary period, to be supervised by a duly appointed probation officer of the Court; and

4. Court costs, to include one beer for each Justice at the next Bar Review.

Dated: _______________ By: __________________________

Hon. Joshua B. Elkins
Chief Justice
Supreme Fashion Court
Law School District
University of Chicago

And the response from the professor, who perhaps was focused on his driving to the exclusion of his clothing:

People of the University of Chicago Law School, plaintiff,
Lior Jacob STRAHILEVITZ, defendant.

Defendant�s Answer

Citation 1 G.Q. 1 (2007)

Defendant Strahilevitz hereby invokes his constitutional right to a trial by a jury of his peers, and responds to the Fashion Crime Complaint as follows:

1. Defendant admits that he is presently an assistant professor at the University of Chicago Law School.

2. Defendant admits that he teaches the legal subject of Property to, inter alia, Class of 2009 sections A, D, and E in Classroom III.

3. Defendant denies that he did, on the 29th of January 2007, wear a grossly unmatched tie and shirt combination to his employment. Defendant further denies that on said date he wore a white dress shirt with vertical dark-blue stripes and a baby-blue tie with diagonal stripes. In actuality, the shirt stripes were brown, dark gray, and powder blue. The necktie in question displayed navy blue, Tahoe blue, white, and Cape Code gray stripes. Defendant further denies that he owns any baby-blue ties.

4. Defendant denies that plaintiffs� sense of vision was gravely offended. To the extent that some plaintiffs suffered such aesthetic harms, they are not actionable. See, e.g., Wernke v. Halas, 600 N.E.2d 117 (Ind. App. 1992). Defendant further asserts that during Property class on January 30, 2007, several of the plaintiffs admitted that they approved of the ensemble in question. Defendant further asserts that a disappointingly large number of prospective plaintiffs were inexplicably absent from class on January 29, 2007, and could not possibly have suffered any damages. Defendant denies that he delivered an otherwise hair-raising and exciting lecture on the history and constitutionality of zoning regulations on January 29, 2007. Defendant does not lecture. Defendant uses the Socratic method.

5. Defendant denies having perpetrated the fashion crime of aggravated sensory assault against the plaintiffs.


Defendant further asserts the following affirmative defenses:

1. Defendant asserts the defense of sovereign immunity. See Alden v. Maine, 527 U.S. 706 (1999). A Professor in his class is the applicable sovereign, and defendant has not waived sovereign immunity via statute.

2. The instant suit is time barred. Defendant wore the tie in question in his Glass Menagerie photograph, which was published at the beginning of the academic year. The applicable statute of limitations requires that all complaints about neckties be brought within one quarter of their initial appearance. 34 R.F.C. Stat. � 45.2.a.

3. The instant suit violates the separation of powers. Joshua B. Elkins is a plaintiff in this suit, purportedly the Chief Justice of the Fashion Court, and served the complaint upon the defendant. One man acts as plaintiff, prosecutor, judge, and jury? Where the heck does Elkins think he is, France?

4. Beauty is in the eye of the beholder, and aesthetic judgments are protected by the First Amendment to the United States Constitution. Plaintiff Clowery said as much in class yesterday, and plaintiff Donoho even stated that he liked the look of the Stoyanoff house in State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 (Mo. 1970).

5. Plaintiffs have failed to seek certification of this cause of action as a class action. Incorporating by reference the facts asserted in paragraph 5 of the defendant�s answer, defendant asserts that some purported plaintiffs were not injured by the defendant�s conduct and lack standing to sue. In such instances, it is incumbent on the plaintiff to seek to certify his suit as a class action, and plaintiff�s failure to do so is grounds for dismissal. See generally Fed. R. Civ. Pro. 23(b) or something like that.

6. The instant suit violates the Defendant�s rights under the Ex Post Facto Clause of the United States Constitution. The purported crime of �sensory assault� was neither enacted by the legislature nor promulgated prior to the facts forming the basis for the plaintiff�s complaint.


1. Defendant asserts the counterclaim of civil extortion. One of the plaintiffs, Joshua B. Elkins, demanded on January 12, 2007, that defendant �donate� an orange, lavender, and white striped tie to the CLF auction. Upon receiving defendant�s reply that he would instead selflessly donate a monopoly game night, complete with dinner, drinks, and desserts for five students, Elkins responded thusly:

I am saddened and dismayed at the news that your orange tie will not be donated to the auction. I was looking forward to getting my hands on it. I urge you to reconsider before the January 23rd deadline for auction item donations.

Worse still, I've looked over the list of items up for bid at the auction and there's none I'd like to have more than your tie. Crochet lessons? Oh, please. Even your (doubtlessly fun) Monopoly Night is no substitute. CLF is going to miss out on a thick-walleted, bad-decision-prone bidder for lack of a simple orange tie.
On January 30, 2007, plaintiff Elkins responded to defendants� allegations by signing and serving the instant complaint upon the defendant. Plaintiff Elkins had no legal right to demand that defendant turn over his tie, engaged in misrepresentation by asserting his interest in owning the tie, when his true purpose was to destroy it, sought to abuse his power as a justice of the Fashion Court by demanding the defendant�s compliance, and caused the defendant financial distress. The orange tie was designed by the famous fashion designer Ike Behar and was relatively expensive, to say nothing of its sentimental value. See Perez v. Alcoa-Fujikura, 969 F. Supp. 961 (W.D. Tex. 1997).

2. Defendant asserts that plaintiff Elkins has committed the crime of sensory assault repeatedly during the winter quarter of classes. Defendant remained silent during the events in question, so as not to embarrass the plaintiff. But defendant is of the firm belief that plaintiff Elkins� fashion sense �ain�t all that.�

3. Defendant asserts that plaintiff Elkins is guilty of the tort of �having too much time on his hands� and that this excess of leisure time be remedied by his being held responsible for knowing the facts of every noted case referenced in Dukeminier, Krier, Alexander, and Schill�s casebook �Property� for the remainder of the quarter.


Defendant moves that �Justice� Elkins, purportedly the chief justice of the fashion court, be recused, given his obvious lack of objectivity, his alleged involvement in an extortion plot against the defendant, and his own written admission that he is �bad-decision-prone.�

Dated: January 31, 2007 By: __________________________

Lior Jacob Strahilevitz
Assistant Professor
University of Chicago Law School
WSBA # 30310

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Conservative Caricature Competition

Having despaired of writing a publication-worthy version of Dahlia Lithwick's old Slate column about the Duke sexual assault accusation, I graciously notify De Novo readers of her call for assistance:

So, I turn to you, my readers, to help me invent a new Imaginary Right-Wing Hack. And I'm asking you to start with that bilious conservative wing nut, Dahlia Lithwick, whose April 22 column on the Duke rape case was a full-bore assault on women and minorities, and a stunning piece of right-wing vitriol to boot. Make free with the cut and paste functions, and please don't be afraid of those ellipses ... Rewrite the column as Ann Coulter channeling Bill O'Reilly and send your entries to Dahlia.Lithwick@hotmail.com. I reserve the right to print your name unless you tell me otherwise.

Bonus points if you can turn this around for Valentine's Day. And triple bonus points if you can manage to do the same thing with the Chili's menu.

First prize will receive a subscription to the Weekly Standard, on my dime, plus a copy of my upcoming book, How the Duke Lacrosse Team Is Responsible for Global Warming, 9/11, the Death of Anna Nicole Smith, and the Black Plague of 1347.

I tried, but when I found myself writing "Because the incompetence of the liberal, elitist Supreme Court has infected trial courts, such that predating black men are allowed to escape from punishment, while the once-and-future Democratic Senate tarred the Good Black Man Clarence Thomas with that dark brush," I realized that I lack the Coulter/O'Reilly combination of allegedly humorous insult and hammering ideas untainted by literary allusion. (Both actually are somewhat uncommon among the right for an apparent lack of Biblical knowledge; if I have to listen to mishomony, it sounds better with ringing references to Sodom than with Coulter's tittering talk of "in a gay wedding, whose name will they take?")

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Today / 02.13.07

Today in History (1914) - In New York City, the American Society of Composers, Authors and Publishers is established to protect the copyrighted musical compositions of its members. Pay up, "Happy Birthday to You"-singing intellectual property thieves.

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Not Your Typical Town-Gown Divide

I thought the hostility of Columbia's neighbors to the university's expansion into Northern Manhattan simply was the usual antagonism between a wealthy school and working class people who think they are unlikely to benefit from the academic presence. There might be more specific causes:

"In the 1990s, African American [and Latino] youths in New York were injected with Fenfluramine -- half of the deadly, discontinued weight loss drug Fen-Phen -- by Columbia researchers investigating a hypothesis about the genetic origins of violence."

That's from a Washington Post review of Medical Apartheid: The Dark History of Medical Experimentation
on Black Americans from Colonial Times to the Present
. The use of the word "apartheid" seems peculiar, given that what the author focuses on is not the mere refusal to admit African Americans to medical facilities, but the active abuse of their bodies. If African Americans had been neglected only, Tuskegee would have no particular resonance; white people's not providing health care to black people is hardly news. The false assistance given to trusting patients, in the name of "research," is what gets remembered.

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February 12, 2007

I Don't Know and I Don't Care

Is the problem in enforcement of labor law ignorance or indifference? One question I forgot to ask Allyson Ho, a former Bush administration assistant who was speaking in New York about immigration reform today, is whether the government has any plans to increase people's awareness (and hopefully, attendant sense of guilt/ fear) about the laws regarding employment, particularly in reporting that one is paying people for work and ensuring that those people are legally permitted to work.

When Ted Frank recently mentioned his difficulty getting good help, I was -- perhaps naively -- shocked by the idea that educated people could be unaware of whether they were following the law with regard to household employees. My experience has been either in Texas, where I futilely scold my parents for paying cash for their summer lawnmowing and weekly maid; or in New York, where I find a housecleaner to help with subletter wreckage by Googling, and figure that part of the $30+/ hour on my credit card bill goes to Social Security. When I, like Ted, lived in Northern Virginia, my roommate arranged the housecleaners who came by a few times a year, and given her government employment and general straight-arrowness -- and the fact that we paid by check -- I assumed that they too were reasonably by the books.

Judging mostly by my n=1 of a popular radio station, there seems to be a big advertising campaign in Britain to inform the populace about the perils of hiring undocumented workers, with the common tagline being, "If you employ illegal migrant workers you're as illegal as they are." That the folks across the pond also see this problem particularly among domestics is highlighted by the phrase's use on the website for the Cleaning and Support Services Association. Certainly the term "employ" has connotations that imply one ought to be filling out forms, in a way that the services for which we often pay cash don't. One of my friends likes to tell a story about his first winter in Alabama, when it snowed to the point that he and his brother pulled out the family snowblower (carried from Up North) and knocked on doors, cleared sidewalks and got paid for the combined utility and entertainment* values. Probably no one involved thought about noting this on their tax returns, much less asking for SS numbers.

* The good lines from Pat Conroy's otherwise awful Beach Music: "Southerners love snow. It always surprises us."

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February 9, 2007

Quotent Quotables

Once again, my weekend engagements* prevent me from posting this week's quotent quotable on Sunday. This week, 1LT Watada's court martial was declared a mistrial because of disagreements over the stipulations. As much as I'd like to sympathize with 1LT Watada, I think he broke one of the most fundamental rules governing the armed services. No soldier should have to obey an immoral order, but the legality of the war, and by implication his deployment orders, do not constitute immoral orders. He broke the law, and he should be punished for it accordingly. With that, we have this week's quotent quotable.

"Smokey, this is not 'Nam. This is bowling. There are rules." -- Walter Sobchek, "The Big Lebowski."

This is essentially the point that Intel Dump blogger Phil Carter makes in this MTV News segment on the topic.

*I have only one engagement party this weekend. It just so happens to be that of a classmate of mine who just so happens to have invited my current EU law professor as a guest as well. Should be interesting.

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February 8, 2007


Apparently electronic devices are a sufficiently significant cause of death and injury to New York's urban population that people who use them while in crosswalks should be fined and summoned to criminal court. There's a new dilemma to add to professional responsibility class: If you need to be walking to court simultaneous with checking on the latest information for your client's case, do you have an ethical obligation to use your Blackberry or cellphone in the crosswalk even if it means breaking the law?

(OK, that's not much of a dilemma because in legal ethics, the answer that involves becoming a defendant oneself never is the correct one, whereas journalists actually debate whether to go to jail to protect a source. The only serious dilemmas in legal ethics are the ones where you have to steer between the Scylla of prosecution and the Charybdis of bar sanctions, as with the Washington State bar's attempted defiance of SarbOx.)

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February 7, 2007

Jurisdiction fun

Finally someone wants to talk to me about a topic I truly enjoy, (I know, I'm a sick puppy), and I don't really have any time to do so. i recently wrote a post about jurisdiction, Shisler v. Sanfer Sports Cars, and received a very long and detailed response from Dave over at Traditional Notions titled "Attention jurisdiction geeks...." (I have to admit that Dave did a much better job than I at thoroughness.)

Essentially, he thinks I'm wrong about whether the case was decided correctly. Obviously, I disagree. (By the way Dave, Mr. Sirrine is my father.)

Unfortunately, I really don't have the time this week to do a thorough post on why I think my analysis is correct. (We both agree that this area of law is pretty murky, so this is a place where reasonable minds can differ.) So, until next week, I'm going to have to settle with the comment I quickly typed to his response:

I enjoyed your analysis and hope to discuss this case with you again at length, but I am currently "snowed-under" by school work. (If only I could concentrate on the fun stuff.) The one point that I have to agree with you on is that it is far from "cut-and-dry" because of the muddle the courts have made of this issue. However, as a purely legal abstraction I do think this case is cut-and-dry.

Your analysis is right on the mark, (and far more thorough than what I have written on the subject), but I think you failed to analyze an important distinction.

I think the language found within is probably the most on point and I'd like to refer to two particular passages (I apologize for the citation omission, but as I said, I'm pretty swamped):

Here, LiVid's Web site merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded the DeCSS source code from, the LiVid Web site. Thus, Pavlovich's alleged "conduct in ... posting [a] passive Web site[ ] on the Internet is not," by itself, "sufficient to subject" him "to jurisdiction in California." (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1060, 85 Cal.Rptr.2d 611 (JDO ), fn. omitted [refusing to exercise jurisdiction under the effects test even though the defendant had "passive Web sites on the Internet"]; Cybersell, Inc. v. Cybersell, Inc. (9th Cir.1997) 130 F.3d 414, 419-420 [refusing to exercise jurisdiction under the effects test even though the defendant posted infringing material on its Web site]; but see Bunn-O-Matic I, supra, 46 U.S.P.Q.2d at p. 1377 [suggesting that the operation of a Web site, by itself, is sufficient to establish express aiming at the forum state].) " 'Creating a site, like placing a product into the stream of commerce, may be felt nationwide--or even worldwide--but, without more, it is not an act purposefully directed toward the forum state.' " (Cybersell, at p. 418, quoting Bensusan Restaurant Corp. v. King (S.D.N.Y.1996) 937 F.Supp. 295, 301, affd. (2d Cir.1997) 126 F.3d 25.)

Pavlovich v. Superior Court 29 Cal.4th 262, *274, 58 P.3d 2, **10, 127 Cal.Rptr.2d 329, ***339 (Cal.,2002)

And this passage as well:

Because nothing in the record suggests that Pavlovich encouraged Web site visitors to use DeCSS to illegally pirate copyrighted motion pictures, his mere "awareness" they might do so does not show purposeful availment. (See Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (plur. opn. of O'Connor, J.) [the mere awareness that third parties will sweep the defendant's product into the forum state does not convert its act of selling the product to third parties "into an act purposefully directed toward the forum State"].)

Pavlovich v. Superior Court 29 Cal.4th 262, *276, 58 P.3d 2, **12, 127 Cal.Rptr.2d 329, ***341 (Cal.,2002)

So the Web site by itself isn't enough to show that there is purposeful availment, but you are arguing that the defendant actually taking action to put his product in California is not enough of an availment?

Here two citations from a case involving a church sending a pedophile into the state of California (these citations are even worse, I apologize):

Did the Milwaukee Archdiocese engage in intentional conduct expressly aimed at or targeting California, knowing the intentional conduct would cause harm in this state? The evidence supports the conclusion the Milwaukee Archdiocese intentionally sent Widera to California to get him out of Wisconsin where he had been convicted of sexual perversion against a boy and could create further problems for the Milwaukee Archdiocese. As the trial court concluded, "the evidence is certainly sufficient to show that the Archdiocese of Milwaukee chose to place this troublesome member of its clergy here in California as a sort of lend-lease program with the hope that he would be out of their sight and out of their jurisdiction." The evidence supported the conclusion the Milwaukee Archdiocese knew Widera was a pedophile and posed a serious threat of sexually abusing boys in California. By sending a known pedophile into California, the Milwaukee Archdiocese aimed its intentional conduct directly at this state. The brunt of the harm, indeed all of the harm, resulted in California. Having sent Widera into California knowing he was a convicted child abuser and a pedophile, the Milwaukee **168 Archdiocese reasonably could expect to be haled into court in California to answer for the consequences of its actions.

Archdiocese of Milwaukee v. Superior Court112 Cal.App.4th 423, 5 Cal.Rptr.3d 154 Cal.App. 4 Dist.,2003.


In Vons, supra, 14 Cal.4th at pages 460-467, 58 Cal.Rptr.2d 899, 926 P.2d 1085, the California Supreme Court firmly rejected a proximate cause test for analyzing the relation between the defendant's forum contacts and the plaintiff's claims in determining specific jurisdiction. "To require that the injury be proximately caused by the forum contact is to require that the injury 'arise out of' the forum contact in the strictest sense. Such a requirement is inconsistent with the formulation that appears in [United States Supreme Court authority].... [Citations.] ... [and] is inconsistent with the relevant standard in Cornelison [v. Chaney ]...." (Id. at p. 462, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)

Archdiocese of Milwaukee v. Superior Court112 Cal.App.4th 423, 5 Cal.Rptr.3d 154 Cal.App. 4 Dist.,2003.

I think a careful reading of Pavlovich leads to the conclusion that if you avail yourself of the forum, (say, make money by selling products directly to citizens of the forum), you will find yourself within that jurisdiction.

Like I said, I'll be glad to take this up with you some more later. next week will be a bit better for me, but I wanted to at least defend myself. ;)

Posted by Sean Sirrine at 6:05 PM | Comments (0) | TrackBack

The Grating Ahistoricism of Short News Reports

I may have unintentionally implied that I blamed Prof. Peter Strauss for the incredibly poor use of his knowledge that was made in a New York Times article. I don't -- I blame the writer and editor of the article. I can't tell whether the media fears context because it will make them seem more biased (the stuff that gets them in trouble if they mention under a headline about a Jerusalem suicide bomber that his sister had miscarried when her ambulance was held up at a checkpoint), or if they're just lazy.

Sometimes they can manage a bit of it, if it's fairly recent. Take the Washington Post article about Nancy Pelosi's request for a larger jet so she can fly nonstop to California. Because only one other Speaker had gotten a government plane, and he was the guy with the job on 9/11 and right before her, the Post didn't find it too painful to note what had been the Hastert habit so readers could compare it to the Pelosi practice.

No such help for the reader in this article about the Justice Department's firing various federal prosecutors, and in at least one case doing so to make room for a more experienced attorney who happens to be a former worker for Karl Rove and for the Republican National Committee. How many federal prosecutors were fired during the Clinton era, and how many of their slots were filled by Democrats? The only historical hint is:

Several lawmakers, including Sen. Dianne Feinstein (D-Calif.), have been further angered by a little-noticed provision slipped into USA Patriot Act legislation last year that now allows Attorney General Alberto R. Gonzales to appoint replacement prosecutors indefinitely. Feinstein and other Democrats in the House and Senate have proposed legislation to repeal the legislation and return to the old process, which allows district courts to appoint interim prosecutors after 120 days.
But there's nothing about who put that provision into the Act, nor how well the old process worked in getting quality prosectors in office, nor even some basic explanation of who would appoint the permanent, non-interim prosecutors after the district courts put in their interim prosecutors. If Gonzales is going to have the power to move out any interim prosecutor chosen by the district court anyway, does it really matter whether there's ever an interim prosecutor at all, unless Gonzales is slow on the uptake and sometimes fails to fill posts?

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February 6, 2007

Today / 02.08.07

Today in History (1993) - General Motors sues NBC after Dateline NBC allegedly rigs two crashes intended to demonstrate that some GM pickups can easily catch fire if hit in certain places. NBC settles the lawsuit the next day.

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A Hymn to Our Rule of Law System

[or, why when my older sister found the word "disputatious" in her SAT vocabulary list, she said, "Hey, that's you!"]

Last week, when I saw a guest op-ed in the NYTimes headlined "Bush Is Not Above the Law" and demanding to know why the FBI has not begun investigating the president for committing a serious felony, I didn't even bother to post about it because it seemed so obviously silly and its historical comparisons absurd. During the Watergate scandal, there was no serious legal debate as to wheter a break-in is against the law, nor whether covering up one's involvement in criminal activity is obstruction of justice. It essentially was a matter for the jury, not the judge, had it ever gone to trial: was there a break-in, and was Nixon involved, and did he try to cover up that involvement?

No such tidy questions of fact are presented with Bush. He isn't inclined to be forthcoming about what he's doing that might be legally questionable, but when wiretapping is traitorously disclosed by the media, he doesn't deny it either, and instead wades into court to argue that it is entirely legal. Therefore a single district judge's opinion that it's illegal, a violation of FISA unsupported by AUMF or Article II or pick-your-"this is war!"-justification, is wholly insufficient for the FBI to open any investigation. We would need a more definitive statement about the program's legality, and one is unlikely to be come now that the issue at least temporarily moot due to the program's shutdown.

That sort of behavior, along with the decision to ship Hamdi back to Saudi Arabia rather than put him on trial, gives me a sense that the Administration's participation in the debate about presidential power is a reluctant one. Will at Crescat Sententia* says that "it seems to me important that the legal controversy over the war on terror is at worst not an attack on the legal system or the idea that even powerful men are governed by laws, but rather an example of argument within it." When a commenter noted cases where the government has argued that courts cannot review the legality of executive action because the dispute implicates state secrets, Will replied, "Nonreviewability is not extra-legality." But I don't find the government's making legal arguments to be as reassuring a sign about the Bush Administration as Will apparently does.

What do you expect the government to do when the ACLU files suit or detainees petition for habeas -- refuse to show up in court and allow the judge to make a default judgment? I'd consider the non-reviewability cases cited to be as close as the government can get to extralegality in a system as intensely legal as ours. In the absence of the "loyal opposition" (or unpatriotic pawns of militant Islam, if it's Deputy Assistant Sec. Def. Stimson doing the characterizing), I doubt that the Administration would feel the need to justify itself under the law so much. This doesn't seem to be an inherent impulse in the government; it is a necessary response to the inherent impulse of left-wingers to challenge Bush. And by putting detainees before executive adjudicatory bodies, Congressional Republicans have done their best to minimize how much the radicals at the Vault Top 100 Firms can interfere with Bush's decisions.

I suppose that the anti-terror stalwarts could have told the suicidal constitutionalists** on the Supreme Court to put their decisions that detainees are entitled to some due process where the sun don't shine, and at this point Will might agree that the government is acting outside the law. Or perhaps not; if Article II demands that the president act to preserve the nation, even in the face of Article III judges' telling him not to do it, then his defiance itself can be defended by a clever lawyer as still being lawful. These clever lawyers, after all, were what inspired the post to which Will responded.

David Bromwich's desire that "Alberto Gonzales [be] slapped with a censure by the American Bar Association" strikes me as almost ignorant of the legal system as the above-criticized op-ed is. Let's be honest about our profession: how often does the ABA slap lawyers with censures for making arguments that are too clever for their own good? The paucity of censures against some of the wealthiest plaintiffs' attorneys -- those lawyers who managed to win big in cases that defendants thought were so long a shot as not to be worth settling -- indicates that it takes a pretty bad argument to rate such action from the bar. Indeed, those who think the Bush Administration's arguments are laughably bad should file FRCP Rule 11 sanctions against them, on the ground that Gonzales et al. are filing papers with the court with "claims, defenses, and other legal contentions therein" that are not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." I suspect even Judge Anna Diggs Taylor would have been reluctant to grant such a motion, because saying some arguments are impermissible squelches the vitality of our legal system. We allow lawyers to say almost any damnfool thing they want, and leave it to judges and juries to be convinced or not. This is our strength.

* Every time you link "Crescat Sententia" to the new .net address, the domain squatters cry.

** I don't suppose I could get our new Congress to require that all references to Justice Robert Jackson's famous sentence be followed by an explanation of the actual holding. (Jackson wrote in dissent against the Terminiello v. Chicago majority's holding that an anti-Communist, anti-Semitic Catholic priest's speech could not be prosecuted as a breach of the peace. Jackson apparently regarded such an interpretation of the First Amendment as inviting anarchy: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.") Alas, incomplete information, like flag burning, Communism and anti-Semitism, is part of the First Amendment, much as arguments that don't pass the laugh test are part of the American legal system.

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February 4, 2007

Supremacy Clause Stumper

Will Baude asks, "Can slightly less addled readers than I name Supreme Court cases where the court held that a state constitution was held to violate a federal statute? I'm positive such cases exist-- under the Voting Rights Act if nothing else-- but nonetheless have been oddly unable to enumerate any..."

I couldn't think of any myself. Dalton v. Little Rock Family Planning Services is the closest case that comes to mind. In Dalton, the Arkansas constitution was amended to prohibit use of state funds to pay for any abortion other than to save the mother's life, and this constitutional provision was enjoined by a federal district court due to conflict with Title XIX of the Social Security Act, which in conjunction with the Hyde Amendment permitted funding for abortions that resulted from rape or incest as well as those to save the mother's life. But the Supreme Court decision was to limit the scope of the district court's ruling to enjoin the state amendment only with regard to Medicaid funds.

State constitutionally-mandated distribution of representation seems to get challenged more under the 14th Amendment than the Voting Rights Act (Brown v. Thomson), though I'm surprised that Arizona's attempt to amend its constitution to make English the official language didn't run afoul of the VRA's language requirements. I suppose the amendment was tailored to fit with the VRA. States generally have the sense to amend their constitutions in accordance with federal law, rather than try to challenge it (Three Affiliated Tribes v. Wold 1984), and federal interpretation of rights sometimes is more popular than the state's. See Fla. v. Casal, where the Forida electorate amended their constitution to say that it grants no more rights than the federal 4th Amendment, and a similar move in Crawford v. Bd. of Educ., where the state constitution was amended so that busing demanded by that state constitution couldn't exceed that demanded by the federal courts.

I'm surprised that the Republican Congress did not pass a federal statute in response to Locke v. Davey that specifically prohibited states from discriminating against religious education in granting scholarships, which statute then would have overridden the Washington State constitution. It seems like it would have been good red meat for the conservative base that is convinced religious people are oppressed. And if we had a federal anti-discrimination law that applied to sexual orientation, that would have killed Colorado's amendment in Romer. In Gregory v. Ashcroft, the Missouri state constitution's requirement that judges retire at 70 was found not to violate the ADEA because the ADEA was assumed not to cover appointed state judges.

I'm also surprised that we haven't seen a lot of state constitutional amendments created by intitiative later found to be violating federal law, given that the federal courts can't give an advisory opinion on such initiatives before they become law.

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February 3, 2007

Quotent Quotables

I just noticed this description of me by co-blogger Sean Sirrine. It's worth repeating: "Armen is a studly blogger from U.C. Berkeley over at Nuts and Bolts�an excellent writer that you're likely to see wearing black robes in the future." This of course reminds me of several memorable quotes, ergo, this week's Quotent Quotables (a day early in honor of Superbowl XLI).

Marge: I want Bart to be a Justice of the Spureme Court, NOT a sleazy stripper!
Homer: Couldn't he be both, like the late Earl Warren?
Marge: Earl Warren was not a stripper!
Homer: NOW who's being naive?

Lisa: Dad, nerds are nothing to fear. In fact, they've done some pretty memorable things. Some nerds of note include...popcorn magnate Orville Redenbacher, rock star David Byrne, and supreme court justice David Souter.
Homer: Oh, not Souter! Oh, no!

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When I Was 17

I was thinking back to high school a couple of days ago, and remembered that our graduation song was Green Day's "Good Riddence (Time of your Life)." I wonder if the juniors picked the song. Well this got me thinking really hard about what song would best capture my law school experience. Here's my tentative list that others can add to:

Clash/Bobby Fuller Four - I Fought the Law

Pink Floyd - Another Brick in the Wall, pt. 2
Beatles - Help

When I was younger, so much younger than today,
I never needed anybody's help in any way.
But now these days are gone, I'm not so self assured,
Now I find I've changed my mind and opened up the doors.

And of course, The Police - Don't Stand So Close to Me

Posted by Armen at 1:39 PM | Comments (1) | TrackBack

February 1, 2007

Virginia Legislation, Siskel & Ebert Style

From the Virginia ACLU, some bills being reviewed in the General Assembly [ACLU message in bold]:

SB 820 (Devolites Davis) and SB 1310 (Lucas). These bills prohibit discrimination in state (SB 1310) and all public (SB 820) employment on the basis of pregnancy, childbirth or related medical conditions, marital status, sexual orientation, or status as a special disabled veteran or other veteran covered by the Vietnam Era Veterans Readjustment Act of 1974.

Thumbs up. But who cares? A state that recently amended its constitution to keep same-sex couples from marrying is an unlikely candidate for anti-discrimination regarding sexual orientation. In a more optimistic vein, however, this does make some existing federal laws applicable to the state, which helps to get around the usual 11th Amendment sovereignty problem in trying to sue the state for violating federal law.

HB 2221 (Amundson) defines birth control as determined by the Federal Drug Administration, including the morning-after pill. It will protect contraception from being included as abortion procedures.

Thumbs up. Given some of the other bills being introduced (see below), not getting contraception and abortion muddled together is particularly important.

HB 1665 (R.G. Marshall), a bill that would prohibit any person from forcing or coercing a pregnant female to have an abortion. Forces or coerces is defined as any act or attempted act including a threat of physical, emotional, financial, or psychological harm. Abortions should never be coerced, but this bill could infringe on the free speech right to express an opinion on a woman's decision to have an abortion.

Thumbs down. Forcing or coercing a woman's decision on abortion -- whether to have it or not have it -- certainly is wrong, and my understanding is that threatening anyone with physical harm, at least in writing, already is a crime. If the Assembly wants to expand that to oral threats in the case of pregnant women and make it a felony, I'll congratulate them for doing it. But a threat of "emotional, financial or psychological harm" seems insanely inappropriate for the state to interfere with. If I get knocked up and my boyfriend is thinking, "If she keeps this kid, I'm gone," sure, he's a jerk, but it's better for me to know that before I make the decision, than for him to feel obliged to keep quiet about this threat of "emotional, financial or psychological harm" for fear that it will get him in trouble. It's terrible that some women abort because otherwise their partners will leave them, but this bill doesn't prohibit the leaving, just the telling her about it. Real helpful.

HB 1883 (R.G. Marshall) requires abortion clinics that perform 25 or more procedures per year to have same equipment and facilities as ambulatory surgery centers. This bill would create unnecessary and expensive requirements for abortion clinics.

Thumbs down. This bill, or some version thereof, has been kicking around the General Assembly for years as a way to shut down all but one abortion facility.

HB 2123 (R.G. Marshall) requires disclosure of the identity of ova. The bill also prohibits the anonymous donation of gametes in the use of infertility treatments. The bill requires physicians to disclose any possible risk with the procedure. The bill removes the privacy associated with the donation of ova and gametes and subjects donors to intimidation.

Thumb up, thumb down. I'm sort of torn on this one. On the one hand, I can imagine why R.G. Marshall, who thinks that telling your girlfriend you're unwilling to support a baby should be a crime, would want this bill: he's probably the type who'd like to make assisted reproductive techniques illegal, but doesn't have the guts to put that legislation or even useful regulations (which the industry desperately needs) forward. So instead he'll try to dry up the sources of the eggs and sperm that allow people missing one or the other to make a baby.

On the other hand, there are reasonable health concerns that disfavor total anonymity in gamete donation: the resulting person needs to know what his family health history is. Assisted reproduction facilities should be required to keep records of who donated what to whom, and that those records should be able to be opened by the resulting child if s/he can show that it's necessary for health purposes. Theoretically these could include his own decision to reproduce with someone who is a carrier, as some awful genetic diseases occur only when both parents are passing on the recessive gene, so that if the gamete-resulting man turns out to be a carrier as well, he should be cautious in making babies with a fellow carrier, but if he's not, he needn't fear. However, carriers generally can detect their status through blood testing, without reference to the family tree, so I doubt the records would be opened often.

SB 1168 (Stolle), will permit judges to waive the cap on compensation for court appointed attorneys who represent the indigent.

Thumbs up. Virginia judges aren't particularly known for love of defendants, and if they see that an attorney has had to put in an uncommon amount of work, they should give that an attorney extra compensation. In all the hubbub about the Duke lacrosse case, those focused on the wealth and privilege of the defendants usually are too busy assuming that their status must indicate guilt to be able to point out that in one sense, they're quite lucky young men; they have enthusiastic, well-paid attorneys working on their behalf to prove innocence. I doubt that indigent defendants in rape cases get a tenth of the legal assistance that each of these students have, even before going to trial.

HB 1970 (Albo): In addition to a federal offense, it makes it illegal to be an illegal immigrant in Virginia. It also gives all law enforcement officers in Virginia, including sheriffs and conservation officers, the authority to enforce federal immigration laws.
HB 1918 (Cole): Allows state and local law enforcement officials to enforce federal immigration laws. Includes everyone from the state police to local sheriffs and conservation officers. The Constitution vests federal government with the authority to oversee immigration. The ACLU of Virginia is concerned that such state and local enforcement in a time of strong anti-immigrant bias would lead to discriminatory treatment of immigrants.

Thumbs down. This just puts more of a burden on Virginia's courts and jails without a clear benefit, and puts state law enforcement in the position of making the judgment call about how to deal with a given immigrant. I know some people view immigration in black-and-white terms -- if you're not 100% legal, you're "an illegal" -- but there's a spectrum ranging from people who enter the country illegally, never having been given permission to come to the U.S. at all; to people on expired study visas; to people who have filed for permanent resident status but whose work visa has run out.

HB 2136 (Miller, J.H.): Permits all law-enforcement officers authority to enforce immigration laws of the United States, and to arrest an individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security that the individual is an alien illegally present in the United States.

Thumb up, thumb down. I'm potentially OK with the arrest as long as the feds guarantee to pick the immigrant up within 24 hours and handle processing her in compliance with federal immigration laws. I don't mind having state officers help the feds out in this area. What worries me is hyperactive -- and yes, potentially racist and xenophobic -- state law enforcement taking up cases that the federal government isn't going to bother with, filling already overcrowded state jails and prisons because the state has no real mechanism for deportation. Without assurance from DHS that they'll come deal with it as an inherent limitation on the number of people arrested, state authorities are likely to arrest every undocumented woman who pressed 2 for Spanish when she called 911 because her husband was abusing her. I don't want people to be afraid of coming into contact with law enforcement for fear that they'll be deported, and it's likely to be detrimental to law enforcement's ability to get tips from illegal immigrants. Who wants to inform on the local drug dealer if it could get you arrested too? The warrantless part is worrying, but as long as it's for an actual crime of entering the U.S. without permission, then it's constitutional by almost anyone's standard.

HB 3096 (Lohr): Fees for English Interpreters -- permits any locality to require non-English speaking defendants in criminal cases to pay for court interpreters if they are convicted.

Thumbs way down. This is an attempt to apply the loser-pays system, which makes some sense for civil trials, to the criminal arena, where it makes no sense whatsoever. A plaintiff who files a case and loses perhaps ought to bear the burden of the cost to minimize frivolous lawsuits, but it's not like the defendant asked to get arrested. If the defendant is afraid he is highly likely to be convicted and fears burdening his family (now that he's in prison) with the cost of paying for an interpreter, he may attempt to hurry the trial to minimize the cost, or plead guilty to avoid using the interpreter at all.

Posted by PG at 5:23 PM | Comments (0) | TrackBack