March 30, 2007

Takeover Arbitrageur

New Disney Ride Simulates Disney–ABC Merger

The Onion

New Disney Ride Simulates Disney–ABC Merger

ORLANDO, FL—"The [boardroom] shake-up was really scary, but I still want to go again!" said 9-year-old Maddie Dahm who admitted she felt a little sick during the arbitrage part.

Jacob Weisberg asserts that "Michael Milken was not a 'takeover arbitrageur,' whatever that is." (Unsurprisingly, the "whatever that is" is omitted from the Financial Times version of the article. FT, too brilliant for your ignorance...) Had Weisberg troubled himself to google the phrase, he would have discovered that takeover arbitrage is a type of arbitrage involving risk, as in simultaneously purchasing stock in a target company while shorting stock in its potential acquirer. This is risky because if the takeover fails, the arbitrageur is out a lot of money, but he can avoid that with the use of insider information that keeps him abreast of how an acquisition is proceeding. Prof. Smith says*,

Consider the central stock-parking counts to which Milken pled guilty. The government claimed that Milken had an arrangement with takeover arbitrageur Ivan Boesky in which Milken would hold stock for Boesky. This would have allowed Boesky, among other things, to avoid filing the "13D" forms required when a stockholder�s holdings reach 5 percent or more of a company�s outstanding shares. Boesky testified as part of his plea bargain that he did have such an arrangement with Milken.
Andrew Roberts therefore was somewhat imprecise in attributing the position of takeover arbitrageur to Milken rather than to Boesky, who probably was the most infamous of the 1980s takeover arbitrageurs, but the term does exist and Milken was closely tied to it. Given that Milken's and Boesky's schemes were difficult even for lawyers and economists to untangle, I'd give a historian trained in neither discipline a pass on that.

More rightly deserving of criticism is Roberts's choice of "Anglosphere" to describe the political alliance of certain former British colonies: "His own idiosyncratic definition of English-speaking countries, which includes New Zealand but not Bermuda, Canada but not Ireland, and Australia but not India or South Africa, explains the book's curious cross-cutting from London to Wellington to Washington to Canberra." Weisberg's mention of Bermuda is simply stupid, as it is still an overseas territory of the UK, not an independent nation. However, Ireland, India and South Africa are easily distinguished from Canada and Australia: the former worked like hell to throw the Brits out, and the latter are still singing "God Save the Queen." The former remain dominantly populated by people who were there before the Brits showed up; the latter have carried the White Englishman's Burden well. A historian ought to be able to make these distinctions. The United States, of course, straddles these categories (successfully killed off most of the natives, yes, but also kicked out George III in short order), and is a law unto itself.

* Smith's review of Daniel Fischel's Payback is worth reading in its entirety, especially for students who want a brief review of the last week of Coffee's Corporations class, as applied to real life. Those who rail against Democratic support for Eliot Spitzer in the face of his dubious prosecutions of Wall Street figures might want to recall Republican favorite Rudy Giuliani's history in this area.

It was bad luck for economic progress and prosperity, and for Milken, that Giuliani found in Milken a way to become mayor of New York, and that Milken's behavior, while perhaps not even technically criminal, was injudicious enough to make him vulnerable to such opportunistic prosecution. ...
[Fischel's] account of the prosecution of the Princeton/ Newport partnership, for example, is shocking. In that case, Giuliani bootstrapped some alleged technical tax-code violations, based on transactions a federal circuit court subsequently held to be legal, into a criminal RICO prosecution. In response to Giuliani's RICO excesses, the Department of Justice changed its RICO guidelines. All the convictions Giuliani got in the Princeton/ Newport matter were thrown out on appeal, except for a perjury count against a 24-year-old junior trader named Lisa Jones. Her blind loyalty to her firm, according to Fischel, was inspired by its having plucked her off the mean streets of Los Angeles.
Fischel is right to be outraged that even though Giuliani's prosecution of Princeton/ Newport turned out to be baseless, it still destroyed that billion-dollar firm. The investment business is based largely on trust and reputation. As soon as Princeton/ Newport was accused, it was through, innocent though it later proved to be. Fischel succeeds utterly in terrifying his readers with his convincing description of how easy it is for unscrupulous prosecutors to destroy innocent people and businesses, even those who can afford the best lawyers.
The review also includes the

QUOTE OF THE DAY: "Economics is called the dismal science for good reason. For most of its inhabitants, this world is a cruel place. A principal role of economists seems to be to explain why things cannot be better. Most appear to enjoy this work and to regard harsh economic realities much as personal injury lawyers regard severe injuries." -- Lynn M. LoPucki, The Unsecured Creditor's Bargain, 80 Va. L. Rev. 1887, 1888 (1994).

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March 29, 2007

Rape and Dogmatism

In Saturday's New York Times, Slavoj Zizek opined,

In a way, those who refuse to advocate torture outright but still accept it as a legitimate topic of debate are more dangerous than those who explicitly endorse it. Morality is never just a matter of individual conscience. It thrives only if it is sustained by what Hegel called "objective spirit," the set of unwritten rules that form the background of every individual�s activity, telling us what is acceptable and what is unacceptable.

For example, a clear sign of progress in Western society is that one does not need to argue against rape: it is "dogmatically" clear to everyone that rape is wrong. If someone were to advocate the legitimacy of rape, he would appear so ridiculous as to disqualify himself from any further consideration. And the same should hold for torture.

This comparison bothers me on multiple levels. First, I would consider it somewhat factually inaccurate. The precise wrongness of rape continues to be discussed, and by august persons. Richard Posner infamously has claimed that in the absence of laws against it, normal people would commit rape and molestation, and that rape is illegal because there are substitutes that do not require the use of force. We implicitly countenance rape among prisoners, refusing to hold prison officials responsible for the abuse of the human beings in their charge so long as the abuse is perpetrated by someone not in the prison's employ. Some who support harsh treatment of terrorist suspects have claimed that the criminally convicted often are worse off than detainees, because given the choice between being raped and waterboarded, some likely would choose waterboarding.

Which brings me to another troubling aspect of Zizek's comparison of the legitimacy of rape versus that of torture. Most people don't consider rape to have any possible morally good goal. Even those like Posner, who think rape is part of a pursuit of simple sexual satisfaction, don't consider this self-interested desire ever to be sufficiently important as to outweigh the emotional harm done to the victim, even if the assault was committed with little violence and no significant physical health consequences. Those of us who have recognized rape as being motivated by the desire to exert power over a non-consenting person see the act itself as morally repugnant because that desire is evil, even if the non-consenter never is aware that the rape occurred. On the rare occasion when rape is used tactically by governments and militaries, it generally is to commit genocide, break the will of a population and subjugate it as a whole. That is, it is not used against specific individuals, but against any woman who is seen as a representative of a larger group.

All this is quite different from the mainstream discussion of torture. Aside from a few truly sick individuals like Rush Limbaugh, even conservatives were displeased by Abu Ghraib because the acts that got the most attention were purposeless torture, done for the soldiers' own amusement rather than to extract information. Only a small minority of Americans believe that we should harm others for the sake of harm; the vast majority of those who contemplate torture as acceptable do so because they sincerely believe that it can be a means to an intensely valuable end. (Hence those long discussions about how many people, would have to be at what magnitude of risk, at what probability, to justify what level of torture.)

Finally, I think it's worth noting that even torture advocates like John Yoo and other Bush Administration supporters consider one particular type of assault to be impermissible: sexual assault. I rather doubt that this is because they find it to be necessarily too awful to perpetrate against terrorists if it would somehow prevent the nuking of NYC. Instead, this seems to be the one type that might cause them to agree with anti-torture moralists like Jeremy Waldron: rape is too destructive of the rapist's own standing as a human being.

Posted by PG at 10:35 PM | Comments (7) | TrackBack

Law Journal Problem with Named Links

De Novo uses numbered links for individual posts, which is one of the Movable Type options. Another is to use the basename, which is automatically generated when you type into the "Title" space for a post. For example, the basename for this post is "problem_with_na," so if I used named links, the URL for the post would be As the MT User Manual points out,

If, in creating the entry, the basename field is left unedited, Movable Type will check for basename collisions with other entries. In case of a possible collision, an underscore and incremented number will be appended to the basename (e.g. title1, title2, etc) and the new basename will be displayed after the entry is saved.
If you choose to edit the basename, collision checking is turned off. If the basename you choose collides with another entry, it could cause one to overwrite the other on the published weblog. Also, if you edit the basename of a published entry, it will very likely change the published filename, hence breaking incoming links to the entry. Both of these actions are not recommended unless you know what you are doing.
(emphasis added). I hadn't realized this until I was looking at a De Novo post from last year, when I clicked on a link and got a dead page. Puzzled, I searched from Professor Bainbridge's index page, and found the post I'd linked; because I had linked it before he added information to it, my link was to the original "columbia_hires_" post name, which later had changed to "update_columbia," thus breaking my link.

Link breaks are always annoying, but when they're just on a blawg I can ignore them. When I'm hunting down a source because I'm checking an article's citations before it gets published in my journal, on the other hand, finding the correct URL is no longer optional. As pointed out not only in Adam Liptak's recent Times piece ("The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles. ... On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen"), but agreed by Ninth Circuit judges Reinhardt and Kozinski (when they recently spoke at Columbia), blogs are becoming a source for citations. They seem more likely than many legal journals to provide what judges want: precedent-based analysis instead of brilliantly original notions of jurisprudence. I had to agree with Kozinski that even in my limited experience, the most useful article is one that summarizes what's happening in a narrow field. One memo I wrote last year began, "There is an excellent survey of the deliberative process privilege in a recent law review article, Michael N. Kennedy, Comment, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege, 99 Nw. U. L.Rev. 1769 (2005)."

SPEAKING OF LAW JOURNALS: We're going to have to add to our list of sites to search before assuming that one's Note topic is original. While most people seem to have embraced SSRN, the ExpressO Preprint Series allows one to find people who haven't bothered with SSRN but who definitely are submitting their article for publication, even if it hasn't been picked up yet.

Posted by PG at 3:11 AM | Comments (0) | TrackBack

Extra(ordinary Ren)dition

I am on board with the notion that we should not engage in extraordinary rendition, the practice of sending terrorist suspects to foreign countries with even looser standards than the Bush Administration regarding interrogation. This is how we end up getting bitched at by Canadians.

A more difficult problem, however, is how to deal with just plain extradition. Indeed, I'm not even sure "extradition" is the right word for the process of sending former detainees home, given the term's connotation of yanking someone from a place where he'd found refuge in order to send him elsewhere. If Gitmo is refuge, I feel even more sorry for these poor bastards. Based on their last names, I'm guessing that all the men named in this AP piece about Russian abuse of Gitmo alums are Russians and therefore were simply sent to their home country. Where else are we supposed to send them? Maybe their treatment at the hands of Russian officials helps explain why hanging out with the Taliban originally looked like an inviting alternative to staying home...

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March 28, 2007

NYPD, Ask Yourself: What Would the Watch Do?

Most of what's being criticized among the NYPD's tactics against RNC protestors is genuinely questionable behavior, such as entering protestors' meetings by lying to the organizers. I only would caution civil libertarians to be careful of what they label as "spying," and not include monitoring of publicly visible behavior in that category.

There was a tradition of soap-box public speaking in Sator Square. "Speaking" was stretching a point to cover the ranters, haranguers and occasional self-absorbed mumblers that spaced themselves at intervals amongst the crowds. And, traditionally, people said whatever was on their minds and at the top of their voices. The Patrician, it was said, looked kindly on the custom. He did. And very closely, too. He probably had someone make notes.

So did the Watch.

It wasn't spying, Commander Vimes told himself. Spying was when you crept around peeking in windows. It wasn't spying when you had to stand back a bit so that you weren't deafened.

-- Jingo*

Also, in nominations for "dumbest thing read today," I would point guest blogger Dave to this New York Sun piece, which teases with the headline "Obama's View of the Constitution Hinted in Article," and begins with "Is Barack Obama a space cadet?" Yet the big revelation is that Obama "was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: 'The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics,' authored by noted legal scholar Laurence Tribe." If editors of law journals are to be dogged by every article published during their tenure, that will make those publications even duller than they are. And why the specification of a "page-one footnote"? Does reporter Gary Shapiro know of a law review that puts the author's note on some other page?

* Though if you're more of a stickler, even going undercover without lying can be tough.

Angua brushed out her hair in front of the mirror.

"I don't like this," said Carrot. "It's not a proper way to behave."

She patted him on the shoulder. "Don't worry," she said. "Vimes explained it all. You're acting as though we're doing something wrong."

"I like being a watchman," said Carrot, still in the mournful depths. "And you've got to wear a uniform. If you don't wear a uniform it's like spying on people. He knows I think that."

Angua looked at his short red hair and honest ears. [...]

"And I've never worn plainclothes."

"On you they'll never be very plain," said Angua, pulling on her coat. It was a relief to be out of that armor. As for Carrot, there was no disguising him. The size, the ears, the red hair, the expression of muscular good-naturedness...

Posted by PG at 2:24 AM | Comments (2) | TrackBack

March 27, 2007

Judicial pay increases

In the ongoing debate on judicial pay increases, Judge Richard Posner has now weighed in.

I'm sure his viewpoint is not going to increase his respect among his colleagues, nor increase his chances of getting a Supreme Court nomination. Kudos to him on calling it like he sees it.

Posted by Dave at 2:41 PM | Comments (0) | TrackBack

March 23, 2007

Phallocentric Feminist Friday

Blogger "Heart" found my post about why transgendered women may have less power and privilege than women-born-women, and therefore WBWs have an obligation not to discriminate invidiously against them. Unfortunately, what I thought was a reasonably well-thought-out analysis, which included comparisons to racism to illustrate why less-empowered minorities within a larger set ought to be both included in that set and allowed to have their own spaces in that set, got reduced in Heart's mind to "a creative, though idiotic, defense of transwomen being in woman-only space: that feminists should admit transwomen into female-only space because they have nobly sacrificed their penises for the anti-patriarchal Cause, either by having them surgically removed or pretending they don�t exist."

I cannot find any mention of "sacrificing a penis" in my post, though the phrase does remind me of a high school paper I wrote about castration in Jane Eyre. I think feminists should admit transwomen into female-only space because transwomen are women (scroll to the comments beginning in March 2007). There are some situations where I would not count transwomen among women: say, if I needed to tally up the number of women born in California in 1980, and I were relying on birth certificates -- though this method would cause me to include transmen. But the Michigan Womyn's Music Festival is not such a situation. Heart fails to engage the actual content of the post, and gives no answer to the question of whether white-women-only spaces are morally acceptable to feminists. After all, there are plenty of spaces that welcome all women, as well as ones that welcome only women of color, or even smaller subgroups -- shouldn't white women have their own space too? Because white women dominate most all-women spaces, many people find such a suggestion ludicrous and ignoring the actual reality of race in order to put up a false claim for equality. Similarly, women-born-women dominate spaces that welcome all women, so why does there need to be a space only for WBWs?

We have events like the MWMF because within the larger society, the dominant group is male. Not "people who were born with a penis," but "people who claim the privileges of masculinity and enact harm on others through those privileges." Women empower themselves and one another through a brief time of stepping out of that patriarchal mainstream to communicate and celebrate. Transwomen don't threaten that; they are not trying to bring patriarchal culture into the MWMF. Rather, they too need time away from threats to their bodies and psyches. Transgendered people also get harassed, abused, assaulted, raped -- possibly at even higher rates than WBWs, because trans folk pose such a threat to those who need to maintain rigid boundaries of sex and gender. Transwomen also have had to spend their lives "under the rule of men." To assume that because someone ever has been identified as male by others, that she has not had part of the women's experience, is a narrow-minded belief that does a disservice to feminism.

Posted by PG at 6:15 PM | Comments (4) | TrackBack

March 22, 2007

Quote of the Day

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection." -- Judge Lowell Reed Jr.

Posted by PG at 6:09 PM | Comments (0) | TrackBack

March 21, 2007

The Dumbest Thing I've Read Today

Before we get to the Grand Prize winner, here's the runner up:

A 1L at University of Denver, like many new law students (including me!), started a blog last fall, Diary of a Law Student. He apparently decided to post what look like case briefs for selected cases, including this brief of Williams v. Walker-Thomas Furniture Co., 350 F2d 445 (DC Cir. 1965), an oft-cited case for the principle of unconscionability in the formation of contracts. Without stating the rule the court adopts, analyzing the reasoning of the court in any manner whatsoever, and with zero "legal" analysis beyond his own feelings and some relatively unsophisticated economic analysis, he proceeds to pooh-pooh the result in the case on the basis that it will keep poor people from access to credit because it means businesses that offer credit to the poor will pull up and go elsewhere (a more common legal interpretation is that Williams stands for the proposition that a finding of unconscionability is based on the interplay of substantive and procedural unconscionability, and that the greater the potential substantive unconscionability at the time of contract formation, the greater the duty on the party with the upper hand in the bargaining to ensure that the lesser party understands the terms and consequences of the contract. An excellent paper contrasting a traditional and law & economics analysis of Williams, see Korobkin, Russell B., A 'Traditional' and 'Behavioral' Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company, University of Hawaii Law Review, Vol. 26, p. 441, 2004. And while the rarely invoked doctrine of unconscionability does theoretically increase costs on subrpime lenders, it most certainly has not held back the industry... in spite of it, predatory lending has flourished).

Suffice it to say I am not impressed with his legal reasoning over all. In another brief using similar personal-opinion reasoning, he disapproves of Martin v. Herzog, the case that stands for the proposition that violation of a statute is negligence per se . He dissaproves of it on the grounds that it seems too rigid and without exceptions. However, there is no mention of Tedla v. Ellman, the companion case thats states that a finding of negligence per se is rebuttable by an excuse. And I'm willing to wager a large amount that he read that case shorlty after reading Martin. And throughout he misstates issues (Martin is not about whether driving without your lights on is negligence, its about whether breaking a statute is negligence), and seems to have never been told that the "analysis" section of a brief is not for your personal thoughts on whether you like or don't like the outcome of a case, but instead how the judges apply the rule adopted to facts at hand.

But enough ragging on a fellow 1L. He was a student with a few weeks experience, and as much as I might think that he has poor legal reasoning skills, its tough to hold him to a very high standard.

But that certainly doesn't apply to everyone. The winner of the dumbest thing I have read today is this post by Alex Tabarrok, an associate professor of economics at George Mason and a purported expert on Law & Economics, despite, as a far as I can tell from his CV, no formal training in law. Of course, I may be mistaken, or he may believe that cross-registering or something along those lines is enough to be an economist with a specialization in law as opposed to a legal expert.

Tabarrok writes occasionally for Marginal Revolution, and is in my opinion generally a downside to what is often an excellent blog written on economics, culture and social policy by Tyler Cowen. Tabarrok's most recent post is titled The Credit Snobs, wherein he argues (using that term loosely) that attempts to regulate the subprime lending market is done out of paternalism and reflects an anti-poor bias.

Now, I'm not going to argue against the merits of his contention. I have my feelings about it, but I am certainly not an expert on credit. What I aim to do is show how incredibly poor the reasoning Tabarok uses to support his contention is, and why he should stop pretending he knows anything about law.

First he misquotes his purported opponent Nouriel Roubini, saying that he characterizes poor borrowers as "reckless patients" who "spent the last few years on a diet of booze, drugs and artery clogging junk food." However, if you read the actual article and read the 8th paragraph, it is clear Roubini is referring to laissez-faire capitalists and mortgage lenders when he makes those statements.

Second, he sets up a strawman argument saying that liberal anti-predatory-lending types want to stop credit access to the poor in the form of payday loan stores. As support for what the liberals are saying, he cites, of all things, a opinion piece in Reason magazine. Could someone please explain to me how a libertarian opinion piece serves as support for what paternalistic liberals are saying? Of course, Tabarrok might have gone that way because he could not otherwise find support for his strawman.... I don't really know anyone who argues that the poor should not have access to credit (rather, I think, it's really the other way around!), but that the terms of credit offered to them should not be usurious and take advantage of low education levels and unequal bargaining power.

Then he gets to unconscionability. Tabarrok again sets up a strawman, arguing that liberals don't want the poor to have access to credit, and that this is somehow embodied in some sort of conspiracy between them and the DC Circuit that came to a culmination in the Williams decision (The DC ciruit is by no means one of the more liberal courts, having produced Roberts, Scalia, Thomas, Bork, and Douglas Ginsburg... though it did produce Ruth Bader Ginsburg! But whatever). This, of course, is where he cites to the poorly reasoned brief our friend at the University of Denver wrote on Williams. Again, remind me how someone admittedly on the right/libertarian side of things speaks for the liberals?

But more problematic is this: Tabarrok passes himself off as a quasi-expert in law, particularly as it relates to economics. Yet, he lacks a) an understanding of what unconscionability is and isn't, including the reality that it is rarely succesful, b) unknowledgeable himself on unconscionability, he turns to a case brief writen by a two-month-old law student, and fails to recognize that it is nothing even close to a legally reasoned position, c) fails to check from a reputable authority whether this U of D 1L even has a half-assed clue what his is talking about and d) doesn't bother to try to reason what the opposing side might try to argue, thereby leaving holes in his argument so big you can drive a Mack truck through them. None of these things sound to me like Tabarrok knows much about the law at all.... this sort of response would garner him a D at best on a law school exam.

I know, I know... it's not a law school exam, it's a blog post. Still, this dude knows jack-squat about law (and jack-squat is a term of art, by the way!).

Anyway, he wraps this farce up with an absurd propostion: that the next thing the anti-poor credit snobs will go after is Grameen Bank. This is particularly rich, seeing as to how some of the main benefits of microcredit are to help the poor avoid shysters and predatory lenders who give usurious credit only on a consumer basis (so as to have collateral, which Grameen doesn't require).

And, he concludes with a baseless rhetorical flourish: "The democratization of credit worries the credit snobs. The credit snobs fear that capitalism isn't just for the rich."

Anyway, beyond my general belief that Tabarrok has poor reasoning skills (so, what else is new? Most people aren't so good with reasoning and logic) what do I seriously find wrong with this post?

Well, it illustrates a problem with the discipline of economics as practiced in modern times. Economists, and particularly econometricists, believe that because they deal in data and math, they have answers to everything. Including, apparently, law. This autistic approach to the discipline allows someone like Tabarrok to believe that "Hey, I don't need to engage with legal theorists, political theorists, sociologists, or anyone else. The answers are all in the data. My curve told me the free market is good, so any statement to the contrary is simply obtuse. And to hell with actually learning the law, I'll just declare myself an expert in it."

How's that for a strawman? Two can play at that game. Hehe.

But there is a kernel of truth there. This sort of poor reasoning certainly wouldn't be tolerated in the legal community. Why is it tolerated by economists?

Posted by Dave at 6:46 PM | Comments (3) | TrackBack

Makeup as Discussion of Human Sexuality

Harold Meyerson of the Washington Post says, "In Utah, a new law requires school principals to police every student organization to ensure that there's no discussion of 'human sexuality' (though experts believe the topic may still come up among teenage students). Lest it seem discriminatory, the statute applies to every student group under the sun, but it is entirely a reaction to the formation of gay-straight clubs at Utah high schools." I've never been able to understand why Grown Ups, i.e. people who left school before 1995, think that gay-straight alliances, or LGBT clubs, or Queer Unions, or whatever they're calling them nowadays, focus on discussion of human sexuality.

From what I've observed from the outside, since my high school didn't have one, the gay-straight alliances seem to focus on slightly self-righteous educating of other students about why gay bashing is bad. The few meetings I attended of the LGBTU at UVA were about national and state politics, and a demonstration of how to dress in drag (taping up the eyebrows is vital), prior to the Drag Bingo event put on every semester and reasonably popular even on a relatively conservative college campus. Such organizations certainly are an opportunity for gay students to be in a safe space, and to meet other gay students with whom they could hook up or form "a personal bond that is more enduring." But to my knowledge, they're rarely about human sexuality itself. Admittedly there may be some self-selection in my understanding of gay organizations; I'm inclined to align with those that are about equality politics or gay culture more than those that are about the practice of sex. Still, in my many years of education in fairly mainstream institutions, the people most inclined to talk publicly about sexual practices seem to be straight girls.

The Utah legislation that I found is slightly different from what Meyerson describes; it forbids clubs* that "involve human sexuality." Presumably an acknowledgement that people have different sexual orientations and certain orientations are discriminated against involves human sexuality, given that a recent proposal said,

"Involve human sexuality" means:
(a) presenting information in violation of laws governing sex education;
(b) promoting or encouraging self-labeling by students in terms of sexual orientation;
(c) disclosing attitudes or personal conduct of students or members of their families regarding sexual orientation, attitudes, or belief;
(d) advocating, approving, or engaging in sexual activity outside of marriage; or
(e) presenting or discussing information relating to the use of contraceptive devices or substances, regardless of whether the use is for purposes of contraception or personal health.

I'm not sure if the members of the band are all engaging in sexual activity outside marriage together whether they'll have to be disbanded. Is dressing in a manner not traditional for one's gender designation and showing men how to apply makeup a discussion of human sexuality? Are you discussing human sexuality if you lecture your classmates on why they shouldn't use "gay" as a negative term for anything they dislike or call someone they don't like a "faggot"?

That aside, the bulk of Meyerson's column is silly. He gets excited about what he sees as the contradiction between acknowledging a genetic basis for homosexuality, and continuing to condemn homosexual sex as wrong.

But once you recognize homosexuality as a genetic reality, it does create a theological dilemma for the Mohlers among us, for it means that God is making people who, in the midst of what may otherwise be morally exemplary lives, have a special and inherent predisposition to sin. Mohler's response is that since Adam's fall, sin is the condition of all humankind. That sidesteps, however, the conundrum that a gay person may follow the same God-given instincts as a straight person -- let's assume fidelity and the desire for church sanctification in both cases -- and end up damned while the straight person ends up saved. Indeed, it means that a gay person's duty is to suppress his God-given instincts while a straight person's duty is to fulfill his.
We know that many alcoholics have a special and inherent predisposition to sin due to their genes. We may someday find that senior citizens who are sexually attracted to 15-year-old girls have a genetic predisposition (technically, all straight men are genetically predisposed to want to have sex with a female who looks like she can breed). That doesn't remove moral culpability from those who cannot control their consumption of alcohol, or from adults who try to have sex with 15-year-olds. People can stop themselves from having sex with minors, or with people of the opposite sex, or with people of the same sex.

The question is not "with whom are you genetically driven to want to have sex?" It is "with whom is your desire to have sex superseded by the moral impermissibility of having sex with that person?" Sex with someone who is not yet fully physically developed (15 year old girls aren't ideal babymakers, despite the urges of human sexuality), nor sufficiently aware of the social, emotional and health effects of sex, has been deemed wrong in the United States. For conservatives, having sex with someone of the same sex -- even if you got married in Massachusetts, by a liberal preacher, and are much better at sexual fidelity than the majority of straight couples -- is always morally wrong. They aren't going to stop thinking it's wrong merely because someone has a genetic predisposition to do it. So Meyerson would be more helpful if he could convince Rev. R. Albert Mohler Jr. that there is no reason to discriminate between men and women in determining whether someone is morally permissible for you to sleep with; that the categories of male and female lack moral content relevant to whether one should prefer sex with one or the other.

I don't hold out much hope for this among Southern Baptists, given that they think that the categories of male and female hold moral content that excludes women from ordination in the church as pastors and that make wives submit to their husbands but not vice versa. In my experience, people who think that men are responsible for X and women are responsible for Y are not going to be able to wrap their minds around the concept that both men and women can do both X and Y well, and therefore a representative of each sex is not required. Someone who declaims that mothers' role is to nurture and fathers' to discipline is not worth trying to convince about the virtues of same-sex marriage and parenting.

* In fairness to Utah, the legislation also forbids a club that promotes bigotry, which "means action or advocacy of imminent action involving the harassment or denigration of persons or entities, including harassment or denigration based upon race, religion, national origin, gender, disability, or sexual orientation." Although I'm not quite sure what the part immediately following, which says, "an evaluation or prohibition may not be made of the truth or falsity of any religious belief or expression of conscience unless the means of expression or conduct arising therefrom violates the standards of conduct outlined in this section," affects the anti-bigotry provision. It implies that I can start a "Baptists Against Gays" ladies' club on the ground that I'm not encouraging harassment or denigration of homosexuals, I just want them to stop being homosexuals.

Posted by PG at 6:42 PM | Comments (0) | TrackBack

Somebody Gonna Get Ice Cream Headache Real Bad

True Majority says,

It's looking like after dumping on the Geneva Convention, ignoring the Constitution and firing public servants for not toeing the Bush line, Alberto Gonzales may have to resign as Attorney General. We sure hope so -- it would be a big step toward restoring the nation of laws we know and love.

If you guess the date and time Gonzales steps down, we'll give you a year's supply of Ben and Jerry's ice cream to celebrate.

The only options are ones within this year -- "never" isn't.

(Post title, at 42 min.)

Posted by PG at 4:18 PM | Comments (0) | TrackBack

March 20, 2007

Who pays for civil litigation?

Today's SCOTUS decision in Travelers Casualty & Surety Co. v. Pacific Gas & Electric (which allowed one massive company to recover attorney's fees from another massive company in a bankruptcy proceeding) got me thinking about a topic that I have had a few conversations about recently: the allocation of the costs of civil litigation.

The taxpayers, of course, bear most of the costs for the maintenance of the judiciary. Yes, there are filing fees and court costs, but they do not come close to approximating the costs of judges, courthouses, clerks, bailiffs, and the rising costs of dry-cleaned robes. And well we should bear those costs: it is difficult to question the effect that the rule of law and the relatively objective adjudication of commercial disputes has had on our economic progress as a nation, and whether as individuals we have been involved in litigation or not, we all benefit from that growth. As for the judges: despite the perennial complaints from the judiciary about how badly they are underpaid, the six-figure salaries that they receive dwarf the majority of American citizens' wildest dreams, and are certainly not bad for 9 to 5 government work with a large degree of power.

The parties themselves, of course, often expend huge sums of money on their case. Lawyers, expert witnesses, deposition and document management services, etc. all handsomely profit off of civil litigation. And even the litigating parties, in a sense, profit... if there was no profit motive there would be no litigation. Whether a plaintiff or a defendant, if one qualifies litigation as a cost of doing business, the parties benefit from winning awards in their favor, protecting against IP infringement, ensuring effective commercial contracts, allocation of costs through insurance, a stable marketplace that encourages growth, and a competitive business environment.

Of course, in relatively limited circumstances (as described in Travelers), and in some egregious circumstances a prevailing party might even recover their costs from the losing side. Now there's a nice benefit: being a party to civil litigation at a reduced cost!

All in all, I think the litigation system does a decent job of allocating costs (though the folks over at Overlawyered might disagree). But there is one glaring exception.


Jurors, who are required by law to temporarily suspend their lives and sometimes spend weeks listening to what Company A did to Company B (which to many will be nothing but stultifying, boring drivel) without any recompense beyond a few dollars a day and a free sandwich, bear massive costs in a system where they often have no stake nor get much benefit.

Why do jurors bear "massive" costs? First of all, jury duty is a regressive poll tax. Irregardless of one's financial situation (with the minor exception of those few for whom jury duty would pose catastrophic economic consequences), we are all equally required to give up the time that the courts ask us for in exchange for a $5 to $50 daily payment (curiously, it is high cost-of-living and highly litigious states like California ($15) that are at the bottom of that scale, while rural low cost-of-living states like South Dakota ($50) are at the high end).

While some might argue that high-income individuals give up more if they are required to sacrifice their high salary while on jury duty, most high-income individuals are salaried and either continue to receive their salary, or they have competitive jury pay available at their job. In addition, they have investment capital that continues to work for them regardless of what they are doing. And they have savings and a financial cushion that will reduce the impact on them if they do end up taking the juror fees.

However, the majority of jurors do not have high incomes or salaried positions. They often are paid hourly, and the loss of hours means loss of income. Many are living day-to-day, week-to-week, and even a few dollars in their daily take home has a significant economic impact on them.

Thus, it is a recessive tax. While high income individuals might give up a greater amount and/or percentage of their incomes when called on to serve on a jury (though often they need not give up anything at all), it is the poor and middle classes that might give up a greater impact on their disposable income and financial well-being.

Further, high income individuals have more at stake in civil litigation. As discussed, a stable system of litigation produces excellent economic results, results that primarily benefit high income individuals and owners of invested capital. I'm a big advocate of free markets and their effects on all class levels, but I find it hard to swallow that low-income individuals should bear such a great burden in ensuring that giant corporations have a fair playing field to continue to earn profits for their shareholders, most of whom are not the low income individuals forced to sit on civil juries. Talk about exploitation of labor.... Company A and Company B, as well as lawyers and judges, all profit from forcing common folks to help them resolve their disputes with little recompense or choice in the matter.

All of this is justified and compelled by the contention that is each citizen's "civic duty" to serve on a jury, even though, at the time this obligation was created, only white male landowners could serve on most juries (of course, that obviously had much more significant problems, but for the purposes of resolving commercial disputes there is less exploitation involved when we limit jury duty to those who had both the economic capacity to sustain the hit to their income as well as those who had the largest stake in a commercial system governed by the rule of law).

I propose that one of two things happen (though they won't): either the taxpayers bear the burden of better juror pay, or the losing party does.

If the tax system takes the hit, this will represent more accurately the relative stakes in the system. We tax capital, not heads. The greater the amount of capital, the greater the amount of tax, the greater the stake in the system.

Or, you could impose the costs on the losing party. This would provide side benefits: it would serve as a curb to frivolous lawsuits by plaintiffs, while serving as an incentive to defendants on the wrong side of the law to settle a case.

Of course, those incentives and disincentives are relatively meaningless when you consider how low the cost of paying jurors would be in comparison to the huge costs of civil litigation. I doubt the costs of reasonable wages would exceed the amount the litigation departments at US law firms bill their clients for photocopying.

Why won't it happen? No one to advocate for it. Jurors are a shifting group without a common set of long term interests. There is no jurors union. Who would pay for the lobbyists? Who would make the campaign contributions?

And politicians have no incentive to do it on their own. Even though jury duty is a tax, it is a politically easier one to charge (under the guise of it being a "civic duty") than raising taxes elsewhere. And they certainly don't want to annoy the chambers of commerce by passing laws imposing the costs on the parties.

What do you think? Other arguments for or against raising juror pay? Comments are open.

Posted by Dave at 5:18 PM | Comments (2) | TrackBack


Greetings! I've been invited by the current editors of De Novo to be a Guest Contributor. I want to thank PG, Armen and Sean for the invite.

A little about me: I'm a 1L at the University of San Francisco School of Law. I'm a couple of years older than the average law student; after spending my twenties pursuing a career in business I decided to fulfill a long-time dream and head back to school. Shortly after starting my 1L year I took my initial foray into blogging at Traditional Notions. I'm originally from New York, and have spent various parts of my life living in Latin America and Europe, but after five years in the Bay Area it is now my home.

Topics that interest me and that I like to blog about: Law and economics, international trade and trade law, development economics, the Supreme Court and the rest of the judiciary, and a zillion little esoteric legal issues (for example, I am fascinated by the development of personal jurisdiction rules). I'm also generally interested in international affairs and domestic politics, whether related to law or not.

I am also intrigued by the role of law as an attempt to balance diverse social interests, and the tension between having a body of law that tracks to a changing society while at the same time retaining a normative set of rules that is known to be the law and does not change in response to a merely shifting zeitgeist.

Additionally, I often enjoy some of the absurdity and lightheartedness found in the law. I find it easy to view law as a replacement for religion in secular society, with the high priests wearing their robes in their vaulted temples, all the while discerning meaning from centuries-old texts that no one else can understand. Meanwhile, acolyte lawyers and law students revere the faith of the law, participating in its ancient incantations and rigid hierarchies. Against this medieval background there is the occasional piercing of the veil of serious sanctity, such as the brief written as a parody of "How the Grinch Stole Christmas," Judge Posner giving a lecture on property rights in virtual worlds as a cartoon character in Second Life, or a Supreme Court case involving a banner with the inscription "Bong Hits 4 Jesus" (talk about the priests of secular society!). So, you will probably see some of that sort of thing from me as well.

I also enjoy feedback and discussion. Feel free to jump in, post a comment, call me an idiot. Law school was the best move I ever made because I love a good argument. I also like hearing diverse viewpoints on an issue that I do not know much about, and hope to post some questions here that readers might respond to. And I think PG 's idea to bring back the Symposia is terrific, and I hope to participate in one soon.

Anyway, thanks again to the current bloggers at De Novo. I'm a big fan of all of their blogs, as well as the work of previous bloggers on this site.

If you have any questions or comments for me, please feel free to email me at

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The Other Skill We Get in Law School: Devil's Advocacy

The Times editorial page tries to issue-spot potential crimes in Republicans' dealings with federal prosecutors, but apparently ran out of time before writing the other half of its exam paper: the defenses that would be thrown up against such prosecutions. (The moderate conclusion "It is far too soon to say that anyone committed a crime, and it may well be that no one has," implies that Examsoft didn't eat the end of their writings.) First of all, one statute on which the Times relies heavily is 18 U.S.C. � 1512 (c), part of Sarbanes-Oxley and thus in a parcel of legislation that has gotten so much criticism that even one of its named sponsors has admitted that it needs "refinements." Having it used to go after White House officials and a senator would be the final nail in SarbOx's political coffin.

As for the specific enumeration of potential charges: Gonzales plausibly can say that he does not view prioritizing election fraud prosecution as a "political" reason to change U.S. attorneys. A federal prosecutor who isn't on board with this Administration's preferences, as dimwitted as those may be (Gonzales is following up on Ashcroft's anti-porn crusade), is going to be seen as a bad prosecutor. It is stupid of the White House not to specify what it meant by "performance," because most people assume it to refer to basic competence rather than pursuit of a particular goal among many reasonably possible ones, but it's unlikely to be a prosecutable stupidity. Similarly, a Republican nagging a prosecutor to hurry up election-related indictments before another election occurs is sketchy but would make a bad case. (The unrecognized irony of the editorial is that it's urging prosecutions without a strong likelihood of success -- exactly what Senator Pete Domenici seemed to be doing to U.S. attorney David Iglesias.)

The one area where the firings may have been definitely, inappropriately, and perhaps illegally political was the removal of prosecutors who were investigating Republican congressmen and lobbyists. For the White House to say that prosecutors should turn their attention away from misdeeds by members of the president's party no longer sounds like a difference in policy priorities -- it sounds like an attempt to corruptly obstruct, influence, or impede an official proceeding. But even here, if the U.S. attorneys can be shown to have engaged in wasteful, harassing investigation of Republicans who ultimately were shown to be quite innocent, their firings can be justified on the ground that they themselves were overly political, carrying a vendetta against Republicans instead of serving the people.

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Fed Courts Fun with Mental Health

The New York Times points out that in the conflict between House and Senate bills on requiring mental health coverage from insurers, it's a family affair:

A patient�s ability to get treatment at an affordable price often depends on state law. The National Conference of State Legislatures says that 42 states have some type of parity law.
The House bill says that federal law will not override "any state law that provides greater consumer protections, benefits," rights or remedies. The Senate bill, by contrast, would "supersede any provision of state law" that establishes standards different from the federal standards for cost-sharing and treatment limits.

Karen M. Ignagni, president of America�s Health Insurance Plans, praised this provision of the Senate bill, saying it would help "achieve consistency on how parity is defined" in different states.
But Senators Christopher J. Dodd, Democrat of Connecticut, and Bernard Sanders, independent of Vermont, expressed concern that the Senate bill could interfere with laws in their states.

Senator Kennedy said he was confident that he and his son could resolve their differences. �We will find ways of working together,� he said.

This actually clarifies something for me that had confused me in class -- whether federal legislation normally occupies the field (as the courts have found with ERISA), or merely sets a floor (as with the minimum wage). It appears that well written legislation says whether it's preempting state law or not. But given ERISA's field occupying tendencies, I'm not even sure how Rep. Patrick Kennedy's House bill would allow state law to stand. The 4th Circuit implied that ERISA's pretty much the defining legislation on employment benefits, so subsequent legislation that would allow state laws to push further than the feds on mental health insurance specifically, without allowing demands on employer spending on health benefits generally, seems like it could create some hateration, holleration between federal and state.

Posted by PG at 2:46 AM | Comments (0) | TrackBack

March 19, 2007


Co-blogger Armen can be heard on San Francisco affiliate KALW 91.7 FM Monday, on the topic "What Is Private And What Is Public In A Blogged-Up, Myspace World?" Listen from 1-2 pm ET.

Posted by PG at 3:07 AM | Comments (1) | TrackBack

Today / 03.19.07

Today in History (1897) - Oscar Wilde is released from Reading Gaol. Before I knew Reading was a British town, I thought the "Ballad of Reading Gaol" was about being punished by being forbidden to read. Having been grounded from reading myself, I felt sympathetic toward Wilde.

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March 18, 2007

Maybe Because I'm Not a Libertarian

I tend to be under-impressed by Julian Sanchez's posts, at least the ones I've seen because they were linked by someone whom I read regularly. I fear that some of this is just law student snobbiness -- in reading Sanchez, I seize upon an error or omission about caselaw and thus miss the insight that other people with legal educations are pointing out. Nonetheless, I confess not to getting what Will Baude finds notable about this comment by Sanchez:

I think what Meg's bumping into here is a common (but misguided) tendency to place excessive stock in formal "guarantees," almost as though the word (at least in statues) had some kind of hypnotic power. Sure, actually existing public schools may produce a caste system as rigid and inequitable as anything you'd find in the fevered free-market dystopias that haunt Noam Chomsky's nightmares, but in theory, Marge, in theory, they're engines of equal opportunity. This is the progressive version of the intelligent design fallacy -- the implicit belief that complex results must be consciously aimed at to be achieved -- indeed, that to declare the intent to produce quality and equality vigorously enough in the appropriate magic statute books is sufficient to produce the result: fiat iuxta! Of course, if you actually want to promote greater educational equality, it seems as though one big and obvious thing to do would be to decouple schooling from geography and local property taxes to the extent possible. Maybe I'm excessively sanguine here, but supporting vouchers seems like one of the few ways to make this otherwise politically very difficult project more feasible.
(Also, as people who have suffered under my editorial red pen know, I am prejudiced against excessive italics. As Florence King says, "There's a rhythm to good prose, which is why I oppose the use of too much punctuation and textual enhancements. If you write a sentence with the proper attention to rhythm, you don't need to add emphasis. You can pick the reader up and carry him along with you -- dance with him, as it were -- so that he catches your rhythm and supplies the italics and commas in his own mind.")

First, despite what McArdle* and Sanchez may believe, public education was a government service originally provided more in the interests of quality than equality. A 1647 Act of the MA Bay Colony required "that every town of one hundred families or more should provide free common and grammar school instruction" -- not so the children of colonists could compete equally in a free market, in which case instruction in a trade would have been more useful, but so they could read the Bible and comprehend matters under vote. It was education in service of religion and politics. Even Adam Smith, who in the Wealth of Nations** ought to have been considering how public education would assist economic meritocracy, instead frets that lack of education makes laborers dull.

But though the common people cannot, in any civilised society, be so well instructed as people of some rank and fortune, the most essential parts of education, however, to read, write, and account, can be acquired at so early a period of life that the greater part even of those who are to be bred to the lowest occupations have time to acquire them before they can be employed in those occupations. For a very small expense the public can facilitate, can encourage, and can even impose upon almost the whole body of the people the necessity of acquiring those most essential parts of education.
He recommended that education be locally based because the benefits are most proximate at the local level, but he sees the benefit to the state at large to be primarily in preventing the populace from being liable "to the delusions of enthusiasm and superstition, which, among ignorant nations, frequently occasion the most dreadful disorders."

I'm not sure when a notion of education as a path to success became common. I would guess it to be mostly a 20th century invention, given that many of the self-made wealthy of the 19th century didn't even finish high school. Vanderbilt quit school at 11 and excused himself by saying "If I had learned education, I would not have had time to learn anything else." An ability to read, write and especially count seemed to suffice in a less specialized time than our own age of IBM and Microsoft fortunes.

The lack of a historical sense that education should be equal is reflected in U.S. Supreme Court jurisprudence. Brown found its rationale against "separate but equal" schools not in their obvious inequality, but in the effect of racial segregation on children's psyches; Rodriguez ruled that grossly inequitable school funding was permissible under the federal Constitution because there was no right to education. Texas's school funding formula eventually was found to violate the state constitution, and we've gone through many, many, many rounds of Robin Hood fights since then. At this point, I think even some Texans, fierce defenders of state prerogatives though they are, would welcome the federal government's settling the matter. I expect New York to go through some similar contortions.

But anyway, the point is that guarantees of equality in education -- even of a guarantee of any education -- are only possible if a judge finds them in a state constitution. If Sanchez knows of statutes in every state that require the state to fund each child's education with an equal amount of money***, I hope he will point them out on his blog. Therefore his implication that educational equality is in the "magic statute books" seems rather dishonest, and his argument that the good intentions of legislators have failed but the market will succeed appears to lack part of its base. Most of the legislators I've observed at most will say that all children should get a good education -- I've found few that will say they should get an equal education. Before we say that a legislative will for equal education has failed to produce it, I would like to see evidence that such a will has existed.

* McArdle makes the usual complaint that failing schools are the teachers' faults. "Matthew's argument is that politically, a different kind of system is not possible. Well, yes, it's not, as long as nice people like he and Kevin line up with the teachers' unions to oppose any substantive change to the current system that don't involve giving tmore teachers a whole lot more money without asking them to do anything much to earn it." My understanding is that teachers' unions would be delighted to have more money spent on schools that doesn't go to teachers. I've never heard of a teachers' union protesting that new money shouldn't be spent on the physical plant, supplies, books, computers, security, parent outreach or any of the other factors that go into making a school a safe environment where teachers can succeed in teaching and students in learning. I know the image of the state bureaucrat grown fat, lazy and greedy on her palatial state salary is one dear to libertarian and -- when it's not a defense-related bureaucrat -- conservative hearts, but it's not one I've often encountered even at my mediocre public high school (though at least our security guard was armed).

** Now with a P.J. O'Rourke gloss!

*** Or more to the point, fund each child's education as is needed to get the child to a minimum proficiency level, because children with learning disabilities, health problems or lack of English need more resources. This is one of those little details the voucher fans often ignore, as do the type of people who wail about how we're spending more on education now than we did in the halcyon days of the 1950s, but getting so much less. Well, there are costly difficulties in trying to educate kids who are mentally retarded or who come to school speaking a foreign language, instead of keeping them at home or laboring in the lettuce fields. But the mean ol' federal government has in this case required the public schools to do so -- something that private schools do not have to do.

Posted by PG at 11:42 PM | Comments (1) | TrackBack

Quotent Testable Hypothesis

The last couple of weeks have been fairly hectic for me. I've been busy writing my writing requirement paper on the admissibility of statistical evidence under Daubert and FRE 702. Specifically, I'm exploring the potential admissibility of the Johns Hopkins study last year on the number of civilian casualties in Iraq as a result of the US-led invasion. While I"m still uncertain as to the conclusions, there are a couple of heroes out there who know how to properly use statistics.

Homer Simpson: "Aw, people can use statistics to prove anything, Kent. Forty percent of all people know that."


LLOYD: I'm gonna ask you something flat out and I want you to answer me honestly: What do you think the chances are of a girl like me and a guy like you ending up together?
MARY: Lloyd, that's difficult to say. I mean we hardly --
LLOYD: I asked you to be honest, Mary.
MARY: But Lloyd, I really can't --
LLOYD: Come on, give it to me straight. I drove a long way to see you, the least you can do is level with me. What are my chances?
MARY: Not good.
LLOYD: You mean not good, like one out of a hundred?
MARY: I'd say more like one out of a million.
LLOYD: So you're telling me there's a chance? YEAH! I read ya, I read ya.

Posted by Armen at 11:22 PM | Comments (0) | TrackBack

March 16, 2007

Civic Liability

Somehow I had forgotten, or never known, that Citgo is full owned by Venezuela's national oil company, Petroleos de Venezuela SA, until someone reminded me recently in the context of wondering at how people could continue to do business with Hugo Chavez. So far, official U.S. sanctions on Venezuela go only so far as new arms sales, and existing contracts will be be respected until they expire. But one could argue that social sanctions are much preferable to legal ones; people who were unaware of laws against doing business with a particular country frequently get tripped up by them, whereas simply being condemned by others raises no problems of notice, due process and so forth.

It also doesn't create the potential First Amendment conflict that came to mind when I read about Republican presidential contender Rudy Giuliani's law firm doing lobbying for Citgo. If we put sanctions on Venezuela even beyond the level we did with South Africa (in 1986 Congress overrode Reagan's veto in order to ban the importation of South African goods and prohibit American business investments in South Africa), such that Americans were prohibited from doing business with Chavez's government or any state-owned Venezuelan company, could this include lobbying activity? As far as I know, the only groups with which we've actually banned all transactions whatsoever are terrorist groups, which generally don't have paid lobbyists to the U.S. government, though I'd want to double-check that with regard to the IRA and other organizations that haven't threatened the U.S. itself.

I would consider lobbying to be fairly core political speech, and one cannot easily be legally prohibited from getting paid for one's speech, so lobbying would seem to be a business one could continue to conduct on behalf of a sanctioned nation -- though if the country is at such a point of disrepute, the lobbying might be somewhat futile.

(Speaking of futility, an old question: should one be able to sell books advocating tax evasion? Despite my favoring First Amendment protection for books that tell one how to commit murder, I find Federal Mafia: How the Government Illegally Imposes and Unlawfully Collects Income Taxes less deserving of the same, perhaps because it's clearly advocating criminal activity, rather than simply being a guide on how to commit it.)

Posted by PG at 2:50 AM | Comments (0) | TrackBack

No Longer So Novo

I forgot to celebrate De Novo's own anniversary -- this law student blog has been up for three years now. Last November, it was described in the W$J Online thus:

The phrase de novo means "anew" in Latin and, as a legal term, refers to trying a case again. This blog, co-authored by a group of students from various law schools across the country, examines de novo all kinds of subject matter, from free speech on college campuses to the Doha world-trade talks to scholarly discussions of rulings and legal definitions. And, unlike many law-student blogs that shutter on graduation day, De Novo has survived by passing the task on to current students. The blog also hosts a series of symposiums that aim to emulate Plato's classic dialogues and bring together a variety of perspectives -- from professors, students, lawyers, bloggers -- on a single subject. Past topics have included the bar review, summer vacation and joining a law journal.
In order to live up to the hype, I hope I can interest some current or nascent law students in taking over for us. If not, I'll be archiving the blog at some friendly and free domain and host around this time next year. I'd also like to revive our symposia before I leave -- I feel like I finally might know enough to contribute to one! Readers with topic suggestions, please leave comments.
Posted by PG at 2:35 AM | Comments (2) | TrackBack

T-shirt, Place and Manner Restrictions

Amber Taylor reflects on Harper v. Poway's being vacated:

I don't disagree with Bethel's broad thesis that "[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences."
But I'm very hesitant to allow Bethel's holding that schools may restrict students from certain "modes of expression" (there, sexual innuendo used for the purpose of titillating other students) to swamp its apparent protection of the ability to advocate for certain ideas. What is to happen when a particular idea, be it the wrongness of homosexuality or the superiority of the high-IQ set, is deemed offensive and socially inappropriate?
I'm not clear on what has occurred that makes Amber think that the ability to advocate for certain ideas has been swamped by restrictions on certain modes of expression. The high-IQ set can continue to read The Bell Curve, advocate its ideas and look down upon the "'tards" -- they simply couldn't wear a particular T-shirt. According to the Ninth Circuit's opinion, "[Poway Principal] Fisher proposed some alternatives to wearing the shirt, all of which Harper turned down." There's no indication that Harper was prohibited from discussing the wrongness of homosexuality -- he simply couldn't wear a particular T-shirt. In both cases, the schools could document instances of altercations between the two opposing groups, and the Poway high school already had been held liable for failing to protect gay students from harassment. Amber concludes,
This is not to say that time, place and manner restrictions on student speech are not necessary for the educational mission of the public schools to be fulfilled; they are. But just as students have a right to pray in school, given that they do so at appropriate times, they should have a right to express themselves and their ideas. The school years are when many aspects of personal identity are formed. Preventing students from having discussions with their peers about political, social, or philosophical issues of import stifles them just when they should be forming a sense of their place in the world and their beliefs about it.
Again, there's no evidence that Brandt's and Harper's ideas were wholly stifled; they were prohibited from expressing them at a particular time (during school hours) in a particular place (on school grounds) and in a particular manner (by a T-shirt). Prayer is an inapposite comparison, given that prayer is an activity integral to many religions, whereas T-shirt wearing is a fairly recent phenomenon peculiar to the Church of Being Badly Dressed. Unlike Tinker, who was forbidden from wearing a plain black armband without any reference to whether it would cause problems -- "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" -- Brandt and Harper wore T-shirts inscribed with slogans that they had been told would be disruptive for their classmates.

Frankly, students are given far more leeway in the public schools than they will be when they are in the workplace, which is reason to encourage them to express themselves in the public square rather than where they have more captive audiences. If Harper grows up and tries to pull a similar stunt in a homophile workplace, he's likely to face far more severe repercussions than one day of doing homework in the principal's office. On the other hand, he's perfectly free to stand before City Hall and express his sense of homosexuality's immorality 'til the cows come home. The sooner he learns the difference between the two, the better.

Posted by PG at 2:05 AM | Comments (0) | TrackBack

March 14, 2007

Rule #1 from the MLK Version of Civ Pro: Defy the Injunction, Go to Jail

I took civil procedure from Prof. Jack Greenberg, who was on the Brown v. Board case and worked for the NAACP from 1949 to 1984. This meant that class frequently included an anecdote about how a civil procedure topic related to the civil rights movement. One that I particularly remember is the day we discussed injunctions and Prof. Greenberg told us about Dr. King's attempt to march on Good Friday 1963, getting slapped with a constitutionally-questionable injunction against his doing so, defying the injunction and getting jailed (during which time he wrote Letter from Birmingham Jail). The takeaway lesson seemed to be that even if an injunction itself ought not have been issued, if you violate it, you're still going to get punished. Unfortunately, this concept doesn't seem to have penetrated the minds of middle and high school students who deliberately go against rules with which they disagree. First there were the gifties, now there are the vagina warriors:

"We want to make it clear that we didn't do this to be defiant of the school administration," said Megan Reback, one of the three girls, who all received one-day suspensions for using the word during a reading of "The Vagina Monologues" at the forum last Friday. "We did it because we believe in the word vagina, and because we believe it�s not a bad word. It shouldn't be a word that is ever censored, and the way in which we used it was respectable."

School administrators said that the girls, all 16, were suspended not for using the word but rather for insubordination. The principal, Rich Leprine, said on Tuesday that the girls were told not to use the word because young children could be in the audience, but that they used it anyway after agreeing not to. "When a student is told by faculty members not to present specified material because of the composition of the audience and they agree to do so, it is expected that the commitment will be honored and the directive will be followed," Mr. Leprine said in a written statement. "When a student chooses not to follow that directive, consequences follow."

The girls say they never made such an agreement.

The notion that children shouldn't hear the word "vagina" is as silly as banning a children's book because it has the word "scrotum," and requiring the Vagina Monologues to be recited without the word "vagina" is equally absurd. Nonetheless, if the young women in question were so determined to deliver their monologue with integrity, they should have either convinced the administrators to let them do it, or refused to participate if they could not. One can simultaneously think that the school administrators were wrong for making the rule, and that the students were wrong in disobeying it; the suspension was justified, but the school should change the rule going forward. I admire people who defy authority in order to do what they believe is right, but the admiration is severely dimmed if they then whine about getting punished -- you're not a heroine unless there was a real risk involved.

Posted by PG at 7:03 PM | Comments (0) | TrackBack

A Note to Ruth Marcus

Dear Ms. Marcus,

When you say,
"Is there anyone left -- seriously, is there a Republican member of the Senate Judiciary Committee -- who has confidence in Gonzales's capacity to fix this mess? Is there anyone who accepts Gonzales's CEO analogy -- and thinks that a sentient board of directors wouldn't have fired him long ago?"
are you being purely rhetorical, or do you really want to know whether all boards of directors always fire CEOs for allowing mistakes to be made?

My Corporations course appears to be one long lesson in how much corporate officers can screw up before boards of directors, all of which seem to be sufficiently sentient to be subject to derivative shareholder lawsuits, will fire them. I would say that while Gonzales would not necessarily stay at the helm of a massive, publicly-traded corporation, he at least would leave with a severage package possibly larger than his lifetime government salary thus far. Therefore I recommend that you not echo Bush rhetoric about running government like a business; given the businesses run by Administration officials, if they actualize their cliches, you could find yourself with a new beat in the UAE. (Today: "Our mayor can say that he's not worried and that the move is small, and indeed, from a corporate standpoint, it is. It's so insignificant that Halliburton didn't deign to make a filing about it with the Securities and Exchange Commission. Investors yawned in response." Tomorrow...)


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March 13, 2007

Never Say "Mistakes Were Made"

Someone in the Department of Justice should be fired, but it's not necessarily Attorney General Alberto Gonzales. It's whoever from the public relations arm of the DOJ prepped him and didn't forbid him to use the phrase "mistakes were made." The classic passive may have worked when it came out of Reagan's mouth, but it has long since passed its life and is used mostly for satirical or antagonistic purposes now.

I find this choice of wording inexplicable, given that there are almost equally weaselly ways to avoid describing oneself as the person actually responsible while still sounding much more definite and active. Compare Gonzales's I acknowledge that mistakes were made here. I accept that responsibility with Members of the Justice Department made mistakes, and as the head of the DOJ I accept that responsibility. The latter would make Gonzales sound like a strong leader ready to clean house -- even if it's only to the extent of admitting that there should have been more disclosure to Congress without admitting any underlying error in the firings themselves. The former makes him sound like a guy asleep at the switch, belatedly waking up after the crash.

As for the substance of the scandal, I'd advise Democrats (i.e. Conyers and Schumer) not to invest too much in "getting" Karl Rove on this one any more than he was "gotten" in the Plame affair; with one aide who resigned yesterday, and Harriet Miers as an easy scapegoat who resigned back in January, there are enough low-level players to blame that Rove can escape responsibility. And he may well have had very little to do with the idea to fire all 93 chief prosecutors, a notion from which the Bushies backed down despite Clinton's having done it shortly after taking office. One of the benefits of Rove's working at the highest level without any defined place is that such day-to-day business rarely can be attributed to him.

UPDATE: The NYTimes calls it a "familiar fallback."

UPDATE II: This 2004 New Yorker piece seems to foreshadow a good deal of what has occurred with regard to the DOJ, federal prosecutors nationwide and the push for "voting integrity."

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We No Can Dunk, But Good Fundamentals

Lately I've been reading about a Title IX-studying law professor who got death threats after she suggested that a pink locker room intended to intimidate the opposing team actually had the effect of associating non-masculinity with athletic inability. At the same time, I've been obediently filling out brackets for the men's college basketball tournament, something both my Fed Courts professor and the Student Senate have invited me to do. The Senate e-mail was particularly disorienting:

Do you miss the days of cheering on your undergrad sports teams?
Are you wondering if this will be the year when all four #1 seeds will make it to the Final Four?
Do you think you can pick the winning bracket?
If so, join the Student Senate March Madness Bracket!
To join the Men's Bracket, go to
I don't know why, but after the specification "to join the Men's bracket..." I scrolled down expecting to see an option to join the Women's bracket. Nothing.

I guess that not more fun to watch after all.

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No Health Care, But Have a Job

Some people claim that it's unfair to put the burden on employers not to employ illegal immigrants -- that if the job applicant claims to be a citizen, and waves what looks like a driver's license, he is reasonably believed and the employer shouldn't be penalized for not checking any further. Yet we demand a higher level of scrutiny for a woman who wants Medicaid coverage for her three year old's heart surgery, because we're worried about illegal immigrants' using the American social service system.

I can see how from a certain viewpoint, this seems reasonable. Sure, if the "illegals" are going to come anyway, might as well have them work for otherwise-below-market wages and keep prices low and jobs in the U.S. against the recessionary day when Americans are willing to work for those wages. But don't have them steal resources out of the society by taking their kids to the doctor. From a more long term perspective, however, what seems to attract the greatest number of immigrants, both legal and illegal, is the prospect of a job, not of social services. If I were going to move somewhere for the government health care and outcomes for poor people of color, I'd pick Cuba way over the U.S.

To be serious about curtailing the supply of undocumented workers, we need to reduce the demand for their services. The federal government seems unconcerned about the number of citizens who can't obtain health care promptly because they lack the proper paperwork, so why stress if citizens also are slowed in their pursuit of employment by a few days to check their claimed Social Security number against the federal database? I realize that any lag increases the transition costs of labor and may reduce our economy's flexibility (fired today, hired tomorrow!), but this only increases the incentive to develop faster methods of verifying work eligibility, as well as employers' incentives to offer sufficiently decent wages that those who can offer pre-approval from a prior employer will be interested in the job.

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March 12, 2007

Today / 03.12.07

Happy 60th birthday to Mitt Romney, former governor of Massachusetts and current contender for the Republican presidential nomination.

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March 10, 2007

Quotent Ethicals

Tomorrow is the MPRE. Am I studying? You betcha. I am watching the episode of The Simpsons "Bart Gets Hit by a Car." The episode is a gold mine for any legal ethics professor who wants to draw up fact patterns. Here's a couple of my favorites.

Homer: "You sure have got some education Mr. Hutz."
Hutz: "Yes well Harvard, Yale, MIT, Oxford, the Sarbonnes, the LOUVRE."
*ambulance siren outside*
Hutz: "Oooooh uh oh well."


Hutz: "The bar association prevents me from promising you a big cash settlement, but between you and me, I promise you a big cash settlement. My fee is 50%"
Homer: "Fifty percent?"
Hutz: "You'll be getting more than just a lawyer Mr. Simpson, you'll also be getting this exquisite faux pearl necklace, $99 value, as our gift to you"

Posted by Armen at 1:17 AM | Comments (2) | TrackBack

March 9, 2007

Two Tax Thoughts

1) If the IRS is short on warm bodies to draft rules, why not enlist tax professors instead of practitioners? The federal government can wave its money stick and threaten to pull funds from law schools that won't count working on government publications for professors' tenure reviews. (Writing a ruling has gotta be a good way to get cited, anyway.) UVA students, note the Mortimer Caplin shout-out.

2) I've heard that the Democrats won't do well politically by talking about the "tax gap" (the difference between the taxes owed and the taxes actually paid), yet citing the annual per-taxpayer surtax of approximately $2,000 to subsidize noncompliance -- compliant taxpayers paying about 17 percent more in taxes to subsidize those who do not pay the taxes they owe -- seems like a good sell to the law-abiding American electorate. Since bringing back the good ol' days of armed raids won't work, I wonder if the Democrats might want to push for an overall reform of tax law and enforcement. This would include not only a crackdown on people getting paid in cash who don't report the income, but also an attempt to make hiding income more difficult for the wealthy: changes in laws governing trusts, deferred compensation, in-kind transactions, etc., so this wouldn't be seen as solely an attack on the poor guy who mows the lawn, pockets the cash and never quite reports it to the IRS.

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More Reason to Love Penteract

When I ask about the quality of care at VA hospitals compared to the care received by Medicare recipients in non-VA hospitals, he first gives his off-the-cuff answer, then does the research for me. My health care information hero!

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Why Not Try to Approximate the Ideal?

Jonathan Chait argues in favor of card-checks for unionizing workplaces:

The conservative objections to a "card-check" plan certainly have some merit. In an ideal world, workers would decide whether to form a union by holding a free secret-ballot election. The workers would be able to listen to arguments from both sides, consider their choice and vote entirely on the merits of the arguments put forward.

The problem is that, in the real world, union elections bear little resemblance to this happy picture. Companies that face organizing drives have an enormous amount of control over the elections. They can hold mandatory meetings and barrage employees with anti-union propaganda. (Employees, obviously, can't call a halt to work for a mandatory pro-union propaganda session.) They can predict that a union will result in the shop closing and everybody losing their jobs.

And that's just the legal part.

This to me is an argument in favor of changing the law of union elections: ban mandatory meetings called by employers, or require that equal time be given to union organizers as to employers. (If the employers claim that a union will result in a shop's closing, I consider that free speech by the employer and not something that can be banned.) And as I've said before, stiffen enforcement and penalties for employers who violate labor laws. But I've still seen no good justification for ending the secret ballot.

Chait is the first person I've seen who's honestly admitted that card-check likely will tip the balance toward unions, and he says, "Unions are so weak that we have little to fear from a small uptick in membership. Suppose union membership was exploding and there was some danger the American economy was going the direction of France, where it's impossible to fire anybody. That might be a good reason to oppose the spread of unionism."

Eh, what? From what I understand, of the few unions we do have in the U.S., those few are pretty fierce about any losses in job, wages or benefits -- indeed, I've heard that some union contracts peg wages to multiples of the minimum wage, so workers can get increases even if there's been no negotiation for their wages to go up. Seems like what we need are not a small number of strong unions to create their own little Frances in a few industries, but widespread weak unions that will allow workers to combine their bargaining power without being able to wrest so many concessions that they end up helping to cripple their employer.

I'd be curious as to how the unions work in countries we hold up as models of thrift and hard work (unlike France*) -- for example, what is the Toyota union in Japan like? Toyota's success indicates that a union need not be inherently crippling, so we should look at what makes Japanese unions different. They have some obvious advantages, of course; in a nation with socialized medicine, the employer need not carry the burden of paying employees' and retirees' health care costs. But is this the only difference? I'm a semi-well read person who is interested in economics, and I have no idea whatsoever.

* I see very little that's made in France, but I noticed last summer that my toilet brush -- the cheapest I'd seen in the store -- was made in Germany. What's that about? why are the Germans undercutting our (or more likely, China's) toilet brush prices?

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March 8, 2007

Scarves, Veils and Habits

The TNR review of Why the French Don't Like Headscarves: Islam, the State, and Public Space has excellent analysis and some interesting facts I hadn't known:

The ongoing controversy has had more than a touch of the absurd to it. As left-wing critics of the ban have pointed out, it is curious indeed to expel girls from public schools in the name of "integrating" them more fully into French society. The wording of the ban also left comically unclear just what constitutes an "ostentatious" sign of religion. Does a small cross or star of David on a necklace count? What about a small crucifix? After the law passed, some Muslim girls substituted colorful bandannas for the traditional black scarves, while journalists asked mischievously if schools would ban elegant silk carr�s from Herm�s. School officials found to their consternation that the most blatant infringement of the law came not from Muslim girls but from turban-wearing Sikh boys, although no one had ever previously detected a threat to la�cit� from France's small Sikh minority. In a ham-handed attempt to cover up this particular embarrassment, Education Ministry officials allegedly offered to pay full tuition for the Sikhs at Catholic private schools! In the oddest twist of all, two of the Muslim girls who became famous for defying the ban -- after their expulsion they wrote a book about it and appeared frequently on television -- had a Jewish father and were named L�vy.
This last absurdity reveals something important. Casual observers have usually assumed that the controversy pits "modern" secular Republicans against "traditional" pious Muslims wrenched out of their North African villages into metropolitan France. Yet as Bowen demonstrates, the girls who took part most actively in the controversy do not fit this mold. Most were French-born, and many came from relatively nonobservant Muslim families. Far from succumbing to family pressure to cover their heads, they made their own independent decisions to do so, often as part of individual quests to find a more meaningful form of religion than they knew at home. Bowen cites the case of a girl in Grenoble named Sch�razade, who read the Koran in her final year of high school -- in French, since she did not speak Arabic -- and only then decided to risk expulsion by donning the headscarf. Once expelled, she staged a twenty-two-day hunger strike in an RV parked in front of the school, and gave numerous interviews to the French and foreign press. Those are not exactly the actions of a "traditional" Muslim schoolgirl.

Though I think reviewer David A. Bell is on to something with his idea that much of the French alarm is due to such deliberate defiance of authority -- Posner's belief that the Brandt plaintiffs were not punished too disproportionately seems to be grounded in a similar concept of needing students to defer to principals in order for schools to function -- I wish he had done a better job of distinguishing just what various French women wear to signify their religious commitments. The traditional Catholic garb for a nun, for example, encases a woman from head to toe in loose black and white cloth, and observant Muslim women vary tremendously: some cover only their hair, while others cover their faces as well and allow only their eyes to be visible.

To object to the hair covering seems to me intensely stupid, whereas the face covering presents genuine problems for identification and communication and therefore should be treated differently on a practical level. Headscarves, whether they are colored Hermes silk or black cotton, strike me as essentially a style choice. I've seen African American women who did not seem to be observant Muslims wrap their hair entirely in cloth (Lauryn Hill, for example, sometimes follows this fashion), and I don't think the same action should be banned if done for a religious reason and permitted if done for a secular one.

In any case, French politicians who are truly worried about coercion and integration should shift their focus from the students to their parents. A girl who stays veiled throughout her education, but does well in school and goes to university, has a much better chance of being a contributing French citizen than one who is in school unveiled until high school, then disappears to be married. A French policy that says, "Wear whatever you want as long as you are educated like the rest of us" allows moderate French Muslims to pressure their brethren into keeping their daughters in school. It also gives French authorities the standing to prosecute parents for their daughters' truancy if they try to take them out of school before the girls have finished. Armed with an education and job opportunities, these women will not be dependent on their fathers and therefore can make their own choices as adults whether to be veiled, wear scarves, join a nunnery, whatever.

Expelling them embodies a policy that says, "Wear whatever you want as long as you stay hidden from public view" -- precisely what we don't want. Muslim women in public, though they may be uncomfortable for other French people to see, are actually a good sign; every woman who is out teaching school, getting a doctorate or running for office is a woman who is not being locked up at home. It may be unpleasant for a Muslim girl who would like to dress like her peers to have to stay covered in accordance with her parents' demands, but it is much worse to have such a girl forced out of school entirely.

UPDATE: And rock that burqini!

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March 6, 2007

One Last Brandt v. Board of Education Post

While writing my previous posts on this case, I hadn't noticed that the named plaintiff himself had posted on The Legal Reader, describing his situation thus:

The details of what happened are trivial except for this last one: an authority figure invented a safety issue in order to squelch freedom of speech. Besides showing the safety issue was imaginary, our primary legal obstacle is whether we, as 14-year olds, had free speech rights. The federal judge in our case has ruled that, at this stage, we have sufficiently established our claim that our free speech was violated.

So what harm was done when we were prevented from wearing our shirt? Well, what harm was done when the government censored the NY Times Op-Ed page a month ago (the White House successfully pressured the CIA pre-publication board to censor dozens of key lines of an op-ed critical of the administration�s policies on Iran)? To take it even further, what harm was done when a certain bus passenger in Montgomery, Alabama was told to get to the back of the bus?

I understand that compared to censorship in the NY Times or the Civil Rights Movement, our fuss over a shirt was a �kid-issue.� Don�t confuse that with �trivial,� though. We all were kids at the time - the things that seemed big to us were, inevitably, kid issues. I�m not pretending that our shirt bears an iota of the significance of the op-ed or Rosa Parks�s bus seat. The fact is, though, there is a striking similarity in each of these cases of civil rights: the oppressed in each situation drew a line, saying an issue was significant enough that they were not willing to sit idly by while their rights were usurped.

What keeps our democracy vital is the people who ensure that the rights and ideals granted by the Constitution play a role in every corner of politics. If kids aren�t taught to think democratically about �kid issues,� how are they as adults expected to think democratically about �adult issues?� Unlike eligibility to vote, deep understanding of civil liberties does not automatically come at age 18. Civil rights aren�t something to just reflect about on Martin Luther King Jr. Day; public schools have an obligation to foster a democratic attitude in the mind of each and every student.

That's only a partial quote of Brandt's comment; despite the encouragement of The Legal Reader's post title, he describes the kids who didn't vote for his design as "two regular classes" rather than as "'tards."

I suppose what I find most puzzling about the case is the First Amendment analysis that doesn't seem to recognize the concept of "time, place, manner" restrictions. Not being able to speak publicly at all about something important to one is indeed a serious impingement on one's civil rights, which is why the Supreme Court generally allows a total speech ban only when what one would like to express poses a clear and present danger to safety and security. But Brandt didn't face any such law -- indeed, the NYTimes itself faced not a legal restriction, but merely pressure to which it bowed rather than get into a fight with the White House. (I'd really like to see the White House try to pull another Pentagon Papers, but the Times lacks my spectator's instinct in this matter.) Government employees sign an agreement not to disclose matters without their supervisors' consent, a pact that follows them even after leaving the civil service, and this is the one legal restriction on speech involved. Nonetheless, people make the choice to have their speech thus circumscribed when they sign up for a government job and the access to confidential information that such positions entail.

So let's be clear on what Brandt and the other plaintiffs were demanding: that they be able not only to express themselves in the time and place of their preference -- during school hours, on school property -- but also that they be able to express themselves in a particular way, through wearing a Tshirt that said, "Gifties 2003." Expressing themselves through complaints to the principal or speech to their teachers and classmates was not enough; the contest-losing Tshirt was necessary. At oral argument, Brandt's mother said that the gifted students had passed around a petition about the Tshirts, and did not claim that the petition had been banned or that they had been punished for it. On the facts I've seen and heard in the opinion and oral argument, it seems that the only way the principal wouldn't let the gifties complain was through wearing the Tshirt.

If they had been attending a private school instead of the "gifted" classes of a public school, there would be no case at all because they wouldn't have been able to claim a First Amendment right against a private entity. The principal did indeed overreact, and that the Crisis Intervention Team was correct in saying that the students should be able to wear the Tshirt without punishment. But the principal did not behave so unreasonably that he overreached his administrative discretion. Though Brandt describes the punishment as "harsh and vindictive," it was merely a loss of privileges. There was no suspension, expulsion, corporal punishment, or even a disciplinary mark on the students' records. (I find Brandt's claim that the students weren't allowed to go to the bathroom while wearing the Tshirt somewhat difficult to believe; his mother didn't mention it at oral argument, and keeping kids from going to the bathroom all day long is flirting with liability for a urinary disorder. Surely the teachers wouldn't have students, particularly female ones, whip off the Tshirt and go to the bathroom topless.)

Even when not using the word "'tard," however, Brandt's sense of privilege still comes through. He is outraged that "many of our teachers treated us like delinquents," apparently never noticing that he was, in fact, breaking the rules and therefore was delinquent -- how could a gifted student be a delinquent? Brandt says, "The principle went so far as to liken our behavior to that of gangs," apparently unaware that insistence on wearing a uniform type of clothing to distinguish one's group from other groups is a type of behavior that marks gangs, which is why principals were empowered to prohibit such apparel in the first place -- how could gifties be like a gang?

At least Rosa Parks didn't bitch about getting punished when she broke a rule, even though the rule was an unconstitutional one with no reasonable concern behind it. Martin Luther King Jr.'s tactics are particularly notable because he accepted the assaults on his dignity, and even on his body, as necesary to expose the injustice of the system that perpetrated them.

I take no pleasure in criticizing Brandt. He's clearly a bright, articulate young man, but this experience doesn't seem to have given him any sense that the gifties' behavior, even if Posner is wrong and it was First Amendment protected, was ill-mannered and juvenile. The First Amendment, as KRS noted, tends to be most necessary for the deservedly unpopular expression. Because he has staked it out as an issues of civil liberties, and derides the principal as having no authority over them ("prohibited by nothing other than the principal�s arbitrary rule"), Brandt seems to believe that what actually underlies his defiance -- the failed bloc voting, the incredulity that his design could have lost, the manipulation of his status to act in ways that would have been promptly punished in the regular classes -- has become ennobled. No longer are the plaintiffs a group of privileged children whose parents urge them on in disobeying the rules; no, they are an embattled band of civil rights crusaders.

Or democrats.

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Now THIS Is a Med-Mal Case

I'm kind of sorry that I hadn't heard of this procedure becoming more common in the U.S. before I wrote this semester's mock trial hypothetical about a claim of medical malpractice by a cosmetic surgeon. Then again, given that some witnesses were leery about playing masseuses last semester, I probably would have had an even more difficult time coaxing people to talk about vaginal rejuvenation. Still, the quotes I could have put into the record!

Warner, who has operated on 18 patients, said he does not consider the lack of published studies to be problematic.
"Life isn't all about studies," Warner said. "These are real problems that don't require 50 people to research the same topic. Women are telling us that it's working."
It would have been helpful in tipping the case more into balance, instead of favoring the defendant as much as it did. The "re-virginization" procedures, however, is just too disgusting to contemplate.

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Money on Libby for the Appeal

While I disagreed with the conservatives who were convinced that Scooter Libby would be found not guilty by a jury (show 'em House of Cards, and he's going down), I admit that Libby has a better chance on appeal. I didn't follow Libby's trial closely -- falling asleep in a lengthy discovery hearing for the case last summer killed my interest -- but it seems like an Arthur Anderson thing: lack of credibility sinks defendants with juries and even many bench trials. When you no longer have to contemplate Libby's sketchy ass, but instead are considering whether the evidence established in the trial record actually rises to the legal standard necessary for conviction, his case looks better. This may be more to the defendant's favor in a perjury trial than in corporate law cases, where fiduciary duty complicates mens rea; if the trial record establishes that any under-oath falsities by Libby were not definitely conscious lies, he'll get off more easily than a corporate officers who said something incorrect under oath, without knowing it was incorrect, but who had a fiduciary duty to know the facts he was discussing.

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March 5, 2007

Quotent Quibbles

I apologize for the delay. I was hosting a friend during a gorgeous weekend in the Bay Area (high 68 degrees) that included biking across the Golden Gate. I'm posting this while Prof. Estates and Trusts is discussing waiving community property rights. I've had this discussion with many women and very few have given a sympathetic response, but here it is agian.

I'm a firm believer in prenups. It's just absurd to assume that a marriage will last forever. No one can possibly know. So if that's the case, why not prepare for that eventuality? The analogy I draw is to life insurance. Sure you can safely assume that you will live long enough until your loved ones are self-reliant (putting aside the tax advantages). But why do that? Putting aside mandatory state laws, you can also assume that you will always be a safe driver and forego car insurance premiums. Certainly most homes don't burn down. Well you get the point. I'm mostly concerned about avoiding unnecessary fighting. But the more I think about it, as a domiciliary of California, I probably want to distribute my assets more generously to my family than state law would allow. The hard part, of course, will be in convincing a g/f or a fiancee about the wisdom of all this. That's where Kanye West's "Gold Digger" comes to the rescue:

She was spose to buy ya shorty TYCO with ya money
She went to the doctor got lypo with ya money
She walkin around lookin like Michael with ya money
Should've got that insured GEICO for ya moneeey

If you aint no punk holla 'We Want Prenup'
It's something that you need to have
Cause when she leave yo ass she gonna leave with half

I certainly want a prenup.

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

March 4, 2007

The Other Charles (Mori More Swift than Stimson)

Major Michael Mori of the U.S. Marine Corps, the lawyer for Gitmo detainee David Hicks, is not happy to hear Hicks's prosecutor say that Mori may be subject to prosecution under Article 88 of the U.S. Uniform Code of Military Justice, which makes it a crime for a military officer to use "contemptuous words" about the president, vice president, secretary of defense and other high-ranking officials. More's vigorous PR efforts have succeeded in convincing Australian politicians to lobby on Hicks's behalf.

Mori, who was in Australia for the seventh time in three years, reacted with dismay and anger.
"Are they trying to intimidate me?" Mori said in a telephone interview Sunday, as he was leaving Sydney to return to Washington.
He compared the attack to the one last year by a senior Pentagon official, Charles Stimson, on law firms that were representing Guant�namo detainees pro bono.
Stimson, then the U.S. deputy assistant secretary of defense for detainee affairs, said that corporations should consider not using these firms. His remarks brought a torrent of objections and he was forced to resign.
Mori said that Davis's remarks created a conflict of interest that would make it hard for him to represent Hicks. In the future, the question would become, he said, "Am I doing what I'm doing because it is in the best interests of my client, or to avoid being charged?"
Davis did not indicate which remarks by Mori might be "contemptuous." But Mori has been blunt in his comments about the military commissions, calling them kangaroo courts.
This reminds me more of what happened with involuntarily retired Lt. Cmdr. Charles Swift, actually. Shortly after achieving victory in Hamdan, Swift was informed that he had not been granted promotion and therefore was "out" under the Navy's "up or out" mandate. Military lawyers who advocate vigorously for Gitmo clients -- to the point of challenging whether those clients are receiving due process under the law, and not merely arguing the facts -- all are in the difficult position of being subversive in an intensely hierarchical, rules-driven system.

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The FDA Burden of Proof Shifts

As part of a general trend in the Bush administration against regulation, the Food and Drug Administration now claims that it must approve antibiotics for use in animals, even ones that are highly controversial for such use due to their "last defense" status for humans, under a guidance document that states on its second page "This guidance represents the Food and Drug Administration�s (FDA�s) current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public." Quite possible this seeming contradiction is just due to bad reporting or writing by the Washington Post. Staff writer Rick Weiss states, "[Approval of cefquinome, a fourth-generation cephalosporin] is all but required, officials said, by a recently implemented 'guidance document' that codifies how to weigh the threats to human health posed by proposed new animal drugs."

I can't tell whether Weiss actually read Guidance #152. He quotes public health experts as saying "that the guidance makes it almost impossible to say no to a new animal drug unless it is likely to threaten the effectiveness of an antibiotic that is a critical player against food-borne illnesses ... although it is a highly important drug in human medicine generally -- and although the Infectious Diseases Society of America even recommends it against some food-borne bacteria -- that risk does not count under the terms of Guidance #152." Yet while whether a proposed animal medication includes antimicrobial drugs used to treat enteric pathogens that cause food-borne disease is indeed ranked the most important criterion, following immediately after it is whether the proposed animal medication is the sole therapy or one of few alternatives to treat serious human disease, or the drug is an essential component among many antimicrobials in treatment of human disease. If it's not just my general paranoia about superbugs (exacerbated by a close relative and cancer patient's difficult-to-defeat urinary tract infections) making me hopeful that approval will be derailed, that sounds like language that would keep cefquinome for humans only.

If the FDA is approving cefquinome for cattle because officials sincerely believe that Guidance #152 requires them to do so, then by all means, let us criticize the FDA for its very poor reading skills/ excessive enthusiasm for approving antibiotics for animal use. Guidance #152 in itself, however, seems fairly unexceptionable, which makes the headline "FDA Rules Override Warnings About Drug" unfair to the rules and too kind to the fools interpreting them. Guidance #152 attempts to lay down criteria by which drugmakers will know how to present their case to the agency, but it does not appear to force the FDA to approve any drug that does not clearly raise the first-ranked issue. Perhaps there has been a revision of Guidance #152 that is as catastrophically stupid as the Post article implies it to be, but the version currently posted is not. If the FDA really had said that the burden of proof for safety had shifted such that the agency now must approve any drug whose opponents have not proven it unsafe, that might be a conservative dream come true, one that surely would have raised a bit more furor before now.

Posted by PG at 3:02 AM | Comments (1) | TrackBack

Today / 03.04.07

Today in Teflon (1987) - President Ronald Reagan addresses the nation on the Iran-Contra Affair, acknowledging that "what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages." By December 1988, his approval rating goes back up to 63%.

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March 2, 2007

The Disparate Impact on the Japanese of Balkin's Poetic Proposal

Prof. Balkin, inspired by Jim Gibbons, says,

The idea is to summarize your latest academic work, whether a paper or Ph.D thesis, in the famous five syllable, seven syllable, five syllable form. [...] I propose that every scholar-- and certainly anyone who sends a work to an academic journal or posts a new piece on SSRN-- should always provide three things: (1) the academic haiku, followed by (2) the 300 word abstract, followed by (3) the actual work itself, in that order. This will let readers know how far they need to read before they inevitably become distracted by some other glistening bauble in our Information age.
Unfortunately, haiku purists aware of the kigo will have a major handicap in attempted to fulfill Balkin's ambition. Consider his summary of his recent paper:
Original meaning,
The Living Constitution,
Are one and the same.

Abortion bans are
Compulsory motherhood,
Class legislation.

-- Jack M. Balkin, Abortion and Original Meaning

One might at a stretch call "motherhood" the reference to the natural world required for a haiku, just as a reference to "tax" could be considered mention of a season, but the haiku for Prof. Levinson's last book fails even this forgiving standard:
Our Constitution
Is completely screwed up; more
Democracy please!

Posted by PG at 9:15 PM | Comments (0) | TrackBack