July 30, 2007

Today / 07.31.07

Today would have been the 95th birthday of Milton Friedman.
It also marks the end of the British army's 38-year Operation Banner in Northern Ireland to quell sectarian violence.

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I Am Terrible

After my first concern about the Chief Justice's health was assuaged, I couldn't help thinking that Torts professors across the land finally have an up-to-date example for Hammontree v. Jenner. "What if Jenner never was formally diagnosed with epilepsy, but had had two unexplained seizures, and limited his driving right after each seizure but then went back to driving?"

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July 29, 2007

Other Blawgs to Read

As you may have seen elsewhere, there have been two compendiums of blawgs recently released.
blawgworld_tilt_c1_free_500 (2).jpg
One, BlawgWorld 2007, is a free ebook that features posts from 77 blawgs. It's of interest both for its content and its design.

The second, the ABAJournal's Blawg Directory, is much bigger and quite intelligently tabbed: you can look for blawgs based on their subject matter, author type (e.g., Associate, Consultant, Judge, Professor), Region (breakdowns by both circuits and states), and law school. It links to RSS feeds and itself acts like a quasi-feed, offering the titles and first few lines of each blawg to which it links.

(I admit that I'm aware of these only because De Novo is featured in both, but don't let that prejudice you against them.)

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Never Complain or Explain

In a post about why people may not report instances of discrimination or harassment that may have violated the law, David Schraub notes, "A new label, 'troublemaker,' also carries negative consequences for the individual. ... Besides avoiding the negative consequences of complaining, people may discover direct benefits from enduring discrimination without complaint." The only benefit he describes is a sense of empowerment from being capable of absorbing harm. There may be an additional benefit: the benefit of getting the reputation of being the Good Girl or Good Negro.

This is one who's not a troublemaker or a complainer, who understands how things are done around here and who is willing to go the extra mile to prove herself a member of a community dominated by men/ whites. This person is more of a mascot than a "token," because she proves that the community is not discriminatory -- see, they have women/ people of color! I've certainly witnessed white people, and non-white people in a superior position, who say that so-and-so is great because she is not like those others of her group who are always complaining. It can be a very useful tool for the person willing to undergo the discrimination without complaint, and sadly can act as a factor against supporting a new person who does make a complaint. First, the person who didn't has to reconcile her own inaction; second, she feels like she is losing status because the stereotypes of the others with whom she curried favor have been shown true: here is this woman/ person of color who walks in and immediately starts complaining. Doesn't this newcomer understand that you've got to work extra hard around here?

One may observe that reaction among a few African Americans, for example, when another black person complains about not getting served when he's wearing baggy jeans and Tshirt. "What does he expect," they say, "dressing like a thug." The complainer, of course, thinks he should be able to dress this way and be treated just like the white kid who walked in ahead and was dressed the same way. But other black people, especially those of a certain age and/or socioeconomic class, will tell him that that's not the standard he's judged by. He's got to dress better, speak better, send better signals than the white guy, because his blackness is itself a negative.

I once had a white person tell me that race is a useful, albeit unfair, way to distinguish who is a good and safe customer from who is not, and that we would have lower-priced (and thus a greater variety) services in American big cities if we didn't make racial discrimination a Title VII violation. Then business owners could keep out the majority of bad customers, along with a relatively small group of people who would have been good customers but set off a false positive because of their race, while serving the majority of good customers. It's basically the same as any racial profiling argument: we'll make some mistakes, and some people will be treated unfairly because of it, but it is an efficient way to do it.

Despite the acknowledgement of false positives and the injustice done to some individuals because of them, generally ignored in such arguments is the likelihood of false negatives. If the shopkeeper is occupied watching the black customers to ensure they don't shoplift, it's easier for the presumed-good white customers to do so. Similarly, if an innkeeper wants to ensure he gets a sufficient clientele and he's screening out any black person not in a suit, he's likely to accept some white people who don't look as tidy as he'd like, and they turn out to be disruptive, dirty, whatever.

But even if someone could show empirically that the number of false negatives is negligible, and thus the harm to the business owner and other customers of using this profiling is negligible, we'd still be troubled by profiling because of the American instinct to prioritize fairness, and concern that a benefit to some is created by putting a burden on others. It makes us uncomfortable to confront that people are treated unequally based on race, and we are willing to make sacrifices to ensure that doesn't happen. So in NYC, profiling for service is done by price rather than race; anyone can get into the Waldorf, no matter how he's dressed, if he can afford it. The Waldorf assumes that if you can pay, you're either a decently orderly person, or can foot the bill for whatever goes wrong. (Thus all the celebrities that still get hotel rooms after trashing a prior one.)

This prioritization of fairness distinguishes the U.S. from other nations that put a much lower priority on fairness compared to efficiency, even though Americans have the reputation of prizing efficiency and productivity uber alles. Perhaps it's a social productivity that interlaces with the perceived economic efficiency; if the "outsiders" have to work harder to be treated equally with insiders, the society gets the benefit of their extra hard work. The society has minorities who feel compelled to look better, speak better, act better, while there is little cost to the majority/ socially dominant group.

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July 26, 2007

How Quickly We Forget

I forgive those who don't have Lexis access for not checking the actual history of the mainstream media's treatment of Bill Clinton, but it's less excusable in a law professor.

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Is Mark Zuckerberg Really Your Friend

I hadn't planned to write about the Facebook-ConnectU, partly because I'm embarrassed to be on Facebook, but after seeing a visit from IP Address 204.15.23.# (Thefacebook.com) of Palo Alto, CA, I figured that they're looking for publicity, so here goes:

According to the Associated Press, ConnectU's founders are charging in a federal lawsuit that Facebook's founder stole their ideas while they were students at Harvard. They say Mark Zuckerberg agreed to finish computer code for their site, but repeatedly stalled and eventually created Facebook using their ideas. A hearing on a motion to dismiss the lawsuit was scheduled for today in U.S. District Court in Boston.

In November 2003, the three asked Zuckerberg to complete software and database work on the site. They repeatedly asked him to finish before they graduated in June 2004, and Zuckerberg assured them he was working hard to complete it, the lawsuit says.
"Such statements were false and Zuckerberg never intended to provide the code and instead intended to breach his promise ... and intended to steal the idea for the Harvard Connection website, and in fact he did so," the suit alleges.
Zuckerberg launched Thefacebook.com in February 2004. ConnectU started its Web site in May of that year. By beating ConnectU to the market, Facebook gained a huge advantage, the lawsuit claims.
In court documents, Zuckerberg's attorneys say ConnectU has no evidence of any contracts with Zuckerberg or that what it shared with him were trade secrets.
That the attorneys were quite so specific -- mentioning contracts and trade secrets, rather than flatly denying that Zuckerberg had any knowledge or involvement of the Harvard Connection project -- makes me think that the allegations must have some basis in fact. Even if there was a lack of consideration to create a contract (maybe the Harvard Connection kids just asked him to do it as a favor), there might be some public backlash against a site that was created on a stolen information, even if it was not contractually protected as a trade secret. Surely one of the ConnectU founders -- or better yet for veritas, Harvard's IT -- can produce an e-mail that would show Zuckerberg had been asked to work on the site. At least in the court of public opinion, Zuckerberg then would have to show that he had had a similar idea, independently, before he started working on ConnectU or its predecessor.

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July 24, 2007

Harvey Birdman Lands

Sad: No more Harvey Birdman episode on Cartoon Network's Adult Swim.

Happy: Those who need to catch up can get the ful series for $80.99. (Though by my math, you're better off buying all three sets individually. Really. I'm not just saying this because I have.)

PG: I can get the third volume to complete the HB collection!

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Via CC, the prescription of choice for political wankers.

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July 21, 2007

The New Conservatism

Cleaning off my bookshelves, I noticed in the October 2005 issue of Engage, "the journal of the Federalist Society's practice groups" (the Harvard Journal of Law & Public Policy being too infrequently published), an article by Ninth Circuit judge Diarmuid F. O'Scannlain proffers his "Ten Reasons Why the Ninth Circuit Should Be Split." Judge O'Scannlain retreaded the article for a Fed Soc presentation at Harvard, where he noted, "Thirty-three of my colleagues on this 47-judge Court, including Chief Judge Schroeder and all past (and future) Chief Judges co-authored a response to my arguments ... I believe that it is split opponents who must now bear the heavy burden of
establishing that the status quo should be maintained... But, my colleagues argue that Congress has never split a circuit contrary to the wishes of that circuit�s judges. Well, there�s a first time for everything."

Anti-majoritarian and putting the burden of argument on those who support the status quo? Say it ain't so!

(O'Scannlain is correct to say that historically, Congress has added and reconfigured the circuits several times. However, I don't think Congress ever has divided a single state between two circuits. Though O'Scannlain never explicitly supports the Hruska Commission's recommendation that California be split, and even says that "maybe California should be a circuit by itself," he also talks about the cultural differences between northern and southern California, and must be aware that the most vocal proponents of a split demand that California be divided.)

The article notes a bill of which I had been unaware, i.e. Sen. Specter's proposal to put all immigration appeals in the Federal Circuit, much as all patent and federal employee appeals are. This is a promising idea, as is the notion of creating an additional Circuit that would have a parallel specialization in federal tax, bankruptcy and perhaps securities or even antitrust appeals. As we already have distinct tax and bankruptcy courts, feeding their appeals into a specialized Circuit strikes me as quite easy and sensible, and certainly tax, bankruptcy and securities cases are so peculiarly statute-based that handing them off to a group of business geek judges and clerks would benefit everyone else. I'm more doubtful about antitrust because of how much is judge-made rather than statutory law.

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July 19, 2007

Lawyering v. Lobbying

Fred Thompson can add "attorney-client privilege" to "federalism" in his stock of responses to why he isn't marching in step with conservatives on some issues. Federalism was his reason not to support a constitutional amendment to ban abortion. (Presumably he is not among those who believe that abortion is murder of a person who deserves legal protection and that Roe is a travesty on the order of Dred Scott, as otherwise "federalism" would seem to justify not passing the 13th and 14th Amendments either). Now "attorney-client privilege" is why he can't talk about lobbying on behalf of a pro-choice organization. As Thompson made his stand on the conservative blog Powerline, let's trace this story through Powerline posts:

July 6 - John Hindraker considers the first allegations about Thompson's lobbying, and says

There is a broader point here that I find troubling. It appears that Thompson's opponents will use his career as a lobbyist as one of their significant avenues of attack. But a lobbyist, like lawyers in general, represents clients. To assume that a lawyer always agrees with the clients he represents is not only juvenile, it tends to undercut the premises on which our legal system is based. A lawyer needs to be able to represent, for example, a man accused of homicide without being labeled pro-murder.
Based on Thompson's disclosures of his earnings as a lobbyist, I take it that some of his income from approximately 1975 until around 1993 came from lobbying, and the rest from other kinds of legal work. For someone who knows how things are done in Washington, lobbying may well be the most valuable use of his time. Lobbying is an honorable profession: legislators and regulators can't possibly research, ab initio, all of the myriad issues they are called on to address. Of necessity, they rely in part on parties who have the expertise, and, equally important, the interest to lay out facts, make arguments, and try to sway them to their point of view. This is an essential part of the democratic process, and a good lobbyist makes a valuable contribution to our legislative system, just as a good lawyer makes a valuable contribution to our judicial system, no matter what clients he represents.
The idea that attorneys should not be attacked for representing dubious clients in litigation is an old one; because of our adversarial system, each side should be able to get the best lawyers it can obtain, and especially in criminal matters, a decent defense is imperative. The defense attorney may not believe that his client is innocent, but he still needs to present his case and attack the government's.

Expanding this axiom to lobbyists is a somewhat novel move on Hindraker's part. It is not quite analogous, because Hindraker posits that the lobbyist works to inform the "judges" of the dispute, i.e. the legislators and regulators, rather than to defeat the arguments of the other side. This makes it sound more like the Continental system, particularly in arbitration rather than litigation, where the supposed goal is to uncover the truth. Nonetheless, an underlying premise of Hindraker's comparison is that like all parties to litigation, all who seek to change government policy should be able to obtain representation, and that those who represent them should not be faulted for the content of the positions they advocate.

I find incredible that Hindraker really believes this. If I lobbied on behalf of NAMBLA to inform state legislators of the developmental needs of LGBT adolescents that would make lowering the age of consent a good idea, I doubt that Hindraker would consider me an essential part of the democratic process who ought not be tarred with my client's pedophilic brush when I ran for office. However, if I were defending a Catholic priest against accusations of child molestation that everyone believed were true, a zealous advocacy on his behalf would be required by professional ethics.

July 11 - Powerline publishes Fred Thompson's response. I quote the part that appears to be making an argument:

Likewise during the Roberts confirmation, the New York Times reported on August 5, 2005 that as an appellate lawyer in the mid-1990s, Roberts gave advice to a gay-rights group that helped them win a 1996 anti-discrimination suit. Chief Justice Roberts had no direct hand in the suit. Rather, colleagues at his firm were handling the case and sought advice from a number of partners, him included. The group said that Chief Justice Roberts provided �invaluable strategic guidance� formulating legal theories.

I�ve experienced another gambit of those schooled in the creative uses of law and politics: dredging up clients � or another lawyer�s clients � that I may have represented or consulted with, and then using the media to get me into a public debate as to what I may have done for them or said to them 15 or 20 years ago. Even if my memory serves me correctly, it would not be appropriate for a lawyer to make such comments.

This situation does however bring to mind my many years in the law, and the nature of law practice in a country such as ours that prizes independence and individual rights. Of course, these values could not be protected without lawyer-client confidentiality or if lawyers were identified with the positions of their clients.

As an idealistic teen-ager I could think of nothing more inspiring than the notion of representing a just cause against the most powerful forces in the country, including the government. I�ve had a chance to do some of that. It�s fair to say that not all of my clients have been so praiseworthy. Some were, indeed, accused of crimes. Some were convicted against my best efforts.

The practice of law is a business as well as a profession. It�s the way you support your family. And if a client has a legal and ethical right to take a position, then you may appropriately represent him as long as he does not lie or otherwise conduct himself improperly while you are representing him. In almost 30 years of practicing law I must have had hundreds of clients and thousands of conversations about legal matters. Like any good lawyer, I would always try to give my best, objective, and professional opinion on any legal question presented to me.

Thompson does not mention lobbying in this passage, only lawyering. The sole mention of lobbying is buried in one sentence: "I�ve had the opportunity to help small farmers in Tennessee, the Chief Justice of the United States, previously mentioned, and several folks in between, as well as a half dozen or so lobbying clients."

Certainly lobbying would complicate the statement that "if a client has a legal and ethical right to take a position, then you may appropriately represent him." Legally, under the First Amendment, we all can take whatever political position we want as long as it doesn't advocate the violent overthrow of the U.S. government. Hindraker might counter my example by saying that NAMBLA lacks the ethical right to take the position it does, but I don't understand how this is different, in the eyes of someone who thinks abortion is murder and should be illegal, from Thompson's client's position that clinics counseling people toward abortion should be eligible for federal funds. Statutory rape generally gets a shorter prison term than murder, which would seem to indicate that we find the latter more immoral.

The distinction between lawyering and lobbying that Thompson collapses is noticeable when one compares Roberts's work for a pro-equality group with Thompson's for the pro-choice group. Roberts gave advice about the law and how it could be applied for a cause in which he may not have believed. Thompson, by contrast, met with administration officials to convince them that the abortion-advising clinics should get the government's money. Moreover, litigation is clearly part of the practice of law and thus communications, matters, or acts of an attorney engaged in litigation obviously require attorney-client confidentiality. Lobbying, on the other hand, is not the practice of law.

July 18 - Hindraker posts in response to a New York Times article:

But the bottom line is that there is nothing here: a lawyer represents all kinds of clients. This particular representation, on Thompson's part, amounted to very little.
What's interesting, I think, is that the news outlets that are pushing this story are not conservative. They seem to think that the story will somehow discredit Thompson among conservatives, presumably because conservatives are too dumb to understand how law firms and the legal process work. The appropriate response from the right would be, I think, a yawn. So far, that's what we've seen.
I realize that unconstrained campaign contributions and massive lobbying corps enjoy a better reputation among Republicans (except for McCain) than they do among many Democrats, but I still am surprised that conservatives are so role-specific that as long as I tell them I am a lawyer, whatever I'm doing for someone I call a client will be OK'ed as "how law firms and the legal process work." Of course, one can register on Capitol Hill as a lobbyist without ever having been a lawyer -- I would be unsurprised if Tom DeLay, former exterminator, resurfaced as a lobbyist -- so perhaps only lawyer-lobbyists receive a pass for advocating policies that are opposed by those whose votes they later seek. I don't know whether lawyer-lobbyists get to invoke attorney-client privilege against testimony for their lobbying clients, while non-lawyer lobbyists would have to testify.

Personally, I thought conservatives weren't so dumb as to believe that law firms only engage in work that requires a JD. But I expect Hindraker knows the breed better than I. Incidentally, somehow none of the three Powerline posts I read -- neither Thompson's nor Hindraker's -- about the nobility of the legal and lobbying professions mentioned John Edwards and the attacks from the right on his career as a plaintiff's attorney.

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The Dangers of Sixth Grade Puppy Love

Apparently the big news in Houston tonight was that a 12-year-old girl who had written "I love Alex" (referring to a 15-year-old boy) in permanent marker on the gym wall would not have to go to alternative school for the infraction. Since I find the general overpolicing and overdisciplining of public schools ridiculous anyway, I'm in favor of this, but a little doubtful of the constitutionality of the distinctions the girl's parents made:

The case drew national media attention after the May 21 incident when district police read Shelby Sendelbach her rights and ticketed her for the graffiti act. The Sendelbachs blasted the school district accusing administrators of failing to make a distinction between Shelby's act of puppy love and graffiti done by a gang member.
Severely punishing a white adolescent girl for graffiti: bad. Severely punishing a most-likely African American or Latino male for graffiti: good.

I am opposed to gang activity, especially in the schools, and think that administrators, police and community leaders should be working hard to prevent it. However, routinely punishing "Thug Life" with the same discipline given for making terroristic threats, possessing dangerous drugs and assaulting with bodily injury (all also Level 4), while letting off "I Heart My High School Boyfriend" with a slap on the wrist seems unfair. Again, if the schools are trying to do a kind of broken-windows policing where even seemingly-small infractions that demonstrate disregard for order are prosecuted, I'm not going to fuss too much. But to my knowledge, NYPD doesn't penalize you more for writing one message rather than another, assuming that it doesn't have unprotected speech aspects like obscenity, threat or libel -- if someone is writing "I'm gonna kill Julio," by all means punish that person extra for the threat. Otherwise, graffiti is graffiti is graffiti. It all violates the law, damages property and degenerates the appearance of the city, and should not be treated differently based on who did it.

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July 18, 2007

Labor + Capital = Law Firm Associates?

In Slate, Daniel Gross attacks Simpson Thacher's program to donate $45 to a public interest group each time a summer associate spends $15 or less on her lunch. Gross sees this as emblematic of modern upper class culture, and he may be right from a sociological perspective. His economics, however, seem a little skewed:

4. It's Good To Be the King. In this economy, management and owners of capital always win. The partners of law firms have been among the most fortunate owners in this economy. They don't face competition from China. They mark up the labor of junior associates and then pass on the costs associated with that labor -- copying, car services, long-distance phone calls -- to their deep-pocketed clients. Summer associates are already a great deal for law firms -- their hours are billed out to clients at hourly rates of between $200 and $300, but the firms don't have to pay any benefits.
First Gross says the owners of capital are winners; then that partners are among the most fortunate owners (compared to whom? surely not their college classmates who went into finance instead); and that their work involves management of labor, not capital. What is this capital that partners own, the Swingline staplers? The massive value Americans are seeing from capital nowadays is not its direct use in the old fashioned Econ 101 sense of a factory, but its investment in various funds, arbitrage among currencies, etc. Law firm partners don't do any of that as part of their job. They write the contracts and devise ways to minimize taxes and litigate when it all goes wrong, but they are prominent as neither owners nor managers of capital.

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Shades of Footloose/ Fair Use

Notable copyright scholar and Google senior counsel William Patry uses Blogger, and has this as his profile image. The site states, "All material within this site is � 2002 - 2007 and can not be reprinted without our express written permission." What are the odds that Patry is infringing copyright... ?

Also, I heart Patry's bitchiness about grown women who are still into Hello Kitty and similar styles. And to wander really off-topic, is it appropriate to refer to Rep. Mary Bono as "Mrs. Bono" when she remarried after Sonny Bono's death? She divorced her second husband and of course is entitled to use her first husband's last name, but referring to her as "Mrs. Bono" seems odd, and "Ms. Bono" more appropriate. Dear Miss Manners...

UPDATE: Following this visit --

Domain Name (Unknown) IP Address 72.14.228.# (Google Corporate IT) ISP Google Location Continent : North America Country : United States (Facts) State : California City : Mountain View Lat/Long : 37.4192, -122.0574 (Map) Language English (U.S.) en-us Operating System Macintosh MacOSX Browser Firefox Mozilla/5.0 (Macintosh; U; Intel Mac OS X; en-US; rv: Gecko/20060728 Firefox/ Javascript version 1.5 Monitor Resolution : 1440 x 900 Color Depth : 32 bits Time of Visit Jul 18 2007 3:33:11 pm Last Page View Jul 18 2007 3:38:16 pm Visit Length 5 minutes 5 seconds Page Views 6 Referring URL http://technorati.co.../%22William Patry%22 Visit Entry Page http://www.blogdenov...archives/001753.html Visit Exit Page http://www.blogdenov...archives/001753.html Out Click Patry's bitchiness http://williampatry....ttpwwwbloggerco.html Time Zone UTC-5:00 Visitor's Time Jul 18 2007 3:33:11 pm Visit Number 331,101
Patry's profile picture became this:
Touche. Incidentally, for those wondering about this post's title, see here.
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July 17, 2007

My PR Knowledge Killed by KPMG

I have a vague recollection of reading about the KPMG case in my 12-hour professional responsibility course, but apparently even that shred of information no longer will be good law. While the ruling doesn't have much effect on the Justice Department as a whole because the DOJ already had revised its policies on allowing corporations to fund employees' counsel, I wonder if having a court disapprove of the government's interference in how defendants obtain counsel -- to whom they have a constitutional right -- will affect the SEC's frowning on corporations' compensating employees for fines and penalties incurred in the court of employment.

I'm thinking of the case underlying some of the KPMG prosecutions, i.e. that of Xerox. That probe was resolved by a settlement that included six former officers' paying $22 million in penalties and "disgorgement," but Xerox annoyed the SEC by indemnifying the officers. Then-chairman William H. Donaldson complained that "the fight against corporate fraud requires resolve in the boardroom and at all levels of government. I'm concerned about companies that, under permissive state laws, indemnify their officers and directors against disgorgement and penalties ordered in law enforcement actions, including those brought by the Commission. In my mind, this isn't good public policy. This is an area we may need to consider ways to bring about reform." For a while, the SEC required that settlements include a promise that the penalties really will be punishments and not just indemnified by the company or reimbursed by the D&O insurers, but I get the sense they're turning away from that on efficiency grounds. Requiring that the penalties come from the officer's own pocket might bankrupt him and keep the SEC from getting all the money, as well as reducing the likelihood of settlement.

Because Judge Kaplan's reasoning regarding KPMG seems to turn on the constitutional aspect of access to (employer-funded) counsel, rather than on any freedom of agreement between employers and employees, the ruling probably will have no such effect on the SEC's attempt to make the bad guys pay. Nonetheless, I'd be interested to see a federal court address this issue directly, even if only to say in passing that yep, the state courts have it right and Xerox can indemnify its heart out.

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Debra Livingston as Bizarro Harriet Miers Scenario

In all the chatter about Tom Goldstein's predictions for a Democratic president's Supreme Court nominees, I haven't seen an explicit reference to a possibility that immediately popped into my mind: what if President Democrat nominated a Bush appellate court appointee to the Supreme Court? This nominee couldn't be a Kavanaugh nor any other judge whose appointment was contested -- it would have to be someone who received little or no opposition and who was unanimously approved by the Senate.

Of course, the person of whom I am thinking is Debra Ann Livingston, recently of Columbia Law School and currently of the Second Circuit. Due to the not-wholly-abandoned tradition of consulting with the senators from the state in which a federal judge would sit, Bush got the input of two Democratic senators in choosing Livingston, who appears to be somewhat conservative-to-moderate on law'n'order (a former AUSA), national security (coauthored a semi-defense of racial profiling in the search for terrorists) and NSA wiretapping, but likely to tilt more liberally on other issues. President Democrat, who may not be wholly averse to retaining some of the powers Bush assigned to the executive, could see Justice Livingston as an excellent way to avoid a confirmation battle from the right (how can they fight a G.W. Bush appointee?).

However, as Milbarge remarks parenthetically, "What will be very fascinating to see is if the lefty blogosphere erupts in a Bizarro Harriet Miers scenario, if it feels a candidate isn't liberal enough." I think Livingston would easily counter any complaint of her being "unqualified" -- she could analyze circles around anyone on the Senate Judiciary Committee -- but as described above, while she didn't arouse liberal opposition this time, that probably was because as a Bush appointee to the Second Circuit, she's a gift. As President Democrat's nominee for the Supreme Court, groups with views to the left of Livingston's essentially would wonder why Democrats should give up a seat to a mere moderate when it could get someone liberal on all the issues to fill that seat instead.

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July 15, 2007

Was I Asleep for That Lecture?

Despite an undergrad concentration in bioethics that included a seminar on Reproductive Ethics, I wasn't aware of this chapter of in vitro fertilization history:

Back then, doctors extracted women�s eggs surgically under general anesthesia. The risks of infection, organ damage and even death from the procedure may have been justifiable for an infertile woman going through I.V.F., but not for a donor. So early researchers borrowed a trick from animal husbandry: when the donor ovulated, she was inseminated with the recipient�s husband�s sperm, the embryo formed in her body and, four to six days later, was flushed out of the uterus and transferred to the intended mother. This adapted procedure �was problematic in many ways,� said Dr. Richard Paulson, chief of reproductive endocrinology and infertility at the University of Southern California�s Keck School of Medicine in Los Angeles and a pioneer in the development of egg donation. For one thing, if the doctors missed the embryo, the donor could wind up pregnant.
I didn't even know you could "flush out" an embryo from a uterus without destroying it (as opponents of the morning after pill worry that Plan B does in preventing a fertilized egg from attaching to the uterine wall). It seems incredible that physicians ever could have taken such a risk. Presumably they used hormones similar to those in Plan B in order to render the egg donor's uterus inhospitable to the embryo, but surely many embryos were deliberately created and then lost in the process of recapturing them from the donor.

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July 13, 2007

Keeping That Graduate Employment Rate High

On Wednesday, Columbia Law students received the following email from Dean Schizer:

As you may know, Michelle Greenberg-Kobrin, our Dean of Students, is on parental leave through October. Gail Heatherly, Director of Academic Counseling and Student Organizations, is leaving to accept a wonderful opportunity to be Bureau Chief of the Criminal Prosecutions in the office of Attorney General Cuomo. While Michelle is on leave, the activities of her office will be overseen by Carol Liebman, Clinical Professor, who will serve as Acting Dean of Students. Harry Kavros, our Associate Dean for Administration, will become more involved in the office's operations as well. Ilene Strauss, Director of Judicial Programming, Clerkships and Academic Counseling, will continue to handle academic counseling and clerkship matters.
Today, among the postings in the weekly "Graduate Opportunities" email from the Center for Public Interest Law, was this:
Columbia Law School
New York, NY
*Director of Academic Counseling/Student Organizations
Overview/Qualifications: Reporting to the Dean of Students, the Director provides academic and other student life related counseling to students as well as developmental advice to student organizations. A Bachelor's degree
and 4-6 years of relevant experience is required, or the equivalent combination of education and experience; and a law degree is strongly preferred. Excellent communication and interpersonal skills is a must.
Duties: The director will counsel students about curriculum and scheduling choices, and hear student concerns about law school issues; act as a liaison with Student Senate and approximately 80 student organizations; help groups organize, plan, and budget events; collaborate with other law school groups that provide services to students; advise students about federal, local, university, and law school policies; organize major law school activities, including orientation, graduation, and course evaluations; help create programs, such as faculty advising, tutoring, and others that foster student development; and produce handbooks and other publications.
To Apply: Send materials to:
Harry Kavros
Columbia Law School
435 West 116th Street
New York, NY 10027
Deadline: Unspecified
Salary: Unspecified

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July 12, 2007

Not Retire and Publish

Through sometime co-blogger Jeff Lipshaw, Prof. Garnett expresses his frustration with practitioners who talk about how nice it would be to "retire and teach." At least in Garnett's summary, Lipshaw seems to have confused teaching with scholarship. They are not precisely the same thing, though I certainly recognize the tremendous benefits that scholars afford their students, and sometimes complain about my school's use of non-tenured teachers. Nonetheless, the majority of students I know from Columbia Law was taught evidence by practitioners, and taught quite competently (it was the one class I never missed). Two classes sure to be oversubscribed this fall will be taught by federal judges who were once full time faculty members.

I agree that people who think they can jump easily from practice to scholarship sound silly and uninformed about how difficult getting a full time faculty position is. However, I think practitioners can make wonderful teachers, and hope that those who aspire to supplement their retirement incomes by teaching Trusts & Estates will hie themselves to Morningside Heights so we can have more than one section of it per year.

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Genarlow Wilson Needs the Walsh Act

In the lastest chapter of the sorry saga of Genarlow Wilson's 10 year prison sentence for receiving oral sex from a girl two years younger than himself, people are criticizing Douglas County DA David McDade for giving the videotape of Wilson's sexual activity with the 15-year-old and a 17-year-old to "about three dozen people, including reporters, lawmakers and several members of the public who requested it." Because all the participants in the video are definitely underage, it constitutes child pornography under federal law. "State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases.
'I'm going to call it the David McDade Act,' Jones said. 'Sometimes we have to protect our kids from district attorneys.'"

Ironically, we already do protect our kids from defense attorneys. Section 3509(m) of the Adam Walsh Act severely restricts the access of defendants, their counsel and their experts in alleged sex crimes to the images in evidence -- i.e., photographs and videotapes of the sex acts or the child pornography for which the defendant is being prosecuted. (See the end of the post for the full text.) I watched proceedings in federal court on Monday where a defendant had been in custody for 17 months and his attorney still has never has accessed the computer on which the pornography was stored. Given that once child pornography is found on your computer, your only hope is to convince a jury that it may have been put there without your knowledge (e.g. by a previous owner, another user, a virus), being able to have an expert evaluate how and when the files got there is rather important.

While prosecutors can freely distribute child pornography to help them look better in the public's eyes, and to convince legislators not to assist the defendant, the defendant himself cannot successfully request to "copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography" even in the course of preparing his defense, and even if he himself never sees it. Any request from those acting in the defendant's interests is deemed a request from the defendant, so even if a defense attorney swears on pain of disbarment that he will not let his client within 50 feet of the pornography, said attorney still cannot get a copy. I suppose a risk-taking journalist could make a public records request and then pass it along to defense counsel, but that's probably a good way to end up in the net of our expansive anti-child porn laws.

In U.S. v. Knellinger, the Eastern District of Virginia said the Walsh Act was not facially unconstitutional, even though a reasonable computer expert would not agree to take a case in which she was required to examine the hard drive on government premises because of the expense and difficulty of moving her equipment to a government facility and the inability to provide adequate assistance under those conditions, because the court ordered that a mirror image had to be provided to the expert. I don't know enough about technology to say whether a mirror image of a computer would capture all of the possible ways in which someone might unintentionally come into possession of child pornography. U.S. v.
O�Rourke, 470 F. Supp. 2d 1049 (D. Ariz. 2007), also found the Act not to be facially unconstitutional. Though citing Knellinger, Judge Babcock of the District of Colorado recently refused to let the defendant in U.S. v. Sturm have "bit-by-bit copies of all computer generated media, including discs and hard drives, containing evidence that the Government intends to introduce at trial." Under Georgia practices, however, I can get it!



Congress makes the following findings:

(1) The effect of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography on the interstate market in child pornography:

(A) The illegal production, transportation, distribution, receipt, advertising and possession of child pornography, as defined in section 2256(8) of title 18, United States Code, as well as the transfer of custody of children for the production of child pornography, is harmful to the physiological, emotional, and mental health of the children depicted in child pornography and has a substantial and detrimental effect on society as a whole.

(B) A substantial interstate market in child pornography exists, including not only a multimillion dollar industry, but also a nationwide network of individuals openly advertising their desire to exploit children and to traffic in child pornography. Many of these individuals distribute child pornography with the expectation of receiving other child pornography in return.

(C) The interstate market in child pornography is carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce, such as the Internet. The advent of the Internet has greatly increased the ease of transporting, distributing, receiving, and advertising child pornography in interstate commerce. The advent of digital cameras and digital video cameras, as well as videotape cameras, has greatly increased the ease of producing child pornography. The advent of inexpensive computer equipment with the capacity to store large numbers of digital images of child pornography has greatly increased the ease of possessing child pornography. Taken together, these technological advances have had the unfortunate result of greatly increasing the interstate market in child pornography.

(D) Intrastate incidents of production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the transfer of custody of children for the production of child pornography, have a substantial and direct effect upon interstate commerce because:
(i) Some persons engaged in the production, transportation, distribution, receipt, advertising, and possession of child pornography conduct such activities entirely within the boundaries of one state. These persons are unlikely to be content with the amount of child pornography they produce, transport, distribute, receive, advertise, or possess. These persons are therefore likely to enter the interstate market in child pornography in search of additional child pornography, thereby stimulating demand in the interstate market in child pornography.
(ii) When the persons described in subparagraph (D)(i) enter the interstate market in search of additional child pornography, they are likely to distribute the child pornography they already produce, transport, distribute, receive, advertise, or possess to persons who will distribute additional child pornography to them, thereby stimulating supply in the interstate market in child pornography.
(iii) Much of the child pornography that supplies the interstate market in child pornography is produced entirely within the boundaries of one state, is not traceable, and enters the interstate market surreptitiously. This child pornography supports demand in the interstate market in child pornography and is essential to its existence.

(E) Prohibiting the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the intrastate transfer of custody of children for the production of child pornography, will cause some persons engaged in such intrastate activities to cease all such activities, thereby reducing both supply and demand in the interstate market for child pornography.

(F) Federal control of the intrastate incidents of the production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the intrastate transfer of children for the production of child pornography, is essential to the effective control of the interstate market in child pornography.

(2) The importance of protecting children from repeat exploitation in child pornography:
(A) The vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and related media.
(B) Child pornography is not entitled to protection under the First Amendment and thus may be prohibited.
(C) The government has a compelling State interest in protecting children from those who sexually exploit them, and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain.
(D) Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.
(E) Child pornography constitutes prima facie contraband, and as such should not be distributed to, or copied by, child pornography defendants or their attorneys.
(F) It is imperative to prohibit the reproduction of child pornography in criminal cases so as to avoid repeated violation and abuse of victims, so long as the government makes reasonable accommodations for the inspection, viewing, and examination of such material for the purposes of mounting a criminal defense.


Section 3509 of title 18, United States Code, is amended by adding at the end the following:
"(m) Prohibition on Reproduction of Child Pornography.--
(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) shall remain in the care, custody, and control of either the Government or the court.

(2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.
(B) For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.''

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July 11, 2007

Don't Forget, Hinduism Is Devil Worship

Thus saith Jack Chick.

I don't remember how I got on the American Family Association's mailing list, but they send an email at least once a week. Two of their major themes are 1) that their boycott of Ford for its tolerance of homosexuals is partly responsible for Ford's loss of market share ("Boycott helps drop Ford sales 6.8% in May") and 2) including sexual orientation in the federal hate crimes law will make the mere verbal expression of intolerance a crime.

I got an email today that reminded me of an old discussion of Judge Wilkinson's claim that discriminating against polytheistic faiths in selecting a person to give an invocation is constitutional. In fairness to AFA, rather than excerpting the email message, I have copied it in full below. I do appreciate their realizing that treating Hinduism as an equal religion is constitutional, even if they find such treatment distasteful:

July 10, 2007

Please help us get this information into the hands of as many people as possible by forwarding it to your entire email list of family and friends.

Hindu to open Senate with prayer
Send an email to your senator now, expressing your disappointment in the Senate decision to invite a Hindu to open the session with prayer.

Dear P,

Please read this news report from OneNewsNow.com.

On Thursday, a Hindu chaplain from Reno, Nevada, by the name of Rajan Zed is scheduled to deliver the opening prayer in the U.S. Senate. Zed tells the Las Vegas Sun that in his prayer he will likely include references to ancient Hindu scriptures, including Rig Veda, Upanishards, and Bhagavard-Gita. Historians believe it will be the first Hindu prayer ever read at the Senate since it was formed in 1789.

WallBuilders president David Barton is questioning why the U.S. government is seeking the invocation of a non-monotheistic god. Barton points out that since Hindus worship multiple gods, the prayer will be completely outside the American paradigm, flying in the face of the American motto "One Nation Under God."

TAKE ACTION � Call your Senators at 202-224-3121
"In Hindu, you have not one God, but many, many, many, many, many gods," the Christian historian explains. "And certainly that was never in the minds of those who did the Constitution, did the Declaration [of Independence] when they talked about Creator -- that's not one that fits here because we don't know which creator we're talking about within the Hindu religion."

TAKE ACTION � Click here to send your E-mail today!

Barton says given the fact that Hindus are a tiny constituency of the American public, he questions the motivation of Senate leaders. "This is not a religion that has produced great things in the world," he observes. "You look at India, you look at Nepal -- there's persecution going in both of those countries that is gendered by the religious belief that is present there, and Hindu dominates in both of those countries."

And while Barton acknowledges there is not constitutional problem with a Hindu prayer in the Senate, he wonders about the political side of it. "One definitely wonders about the pragmatic side of it," he says. "What is the message, and why is the message needed? And will it actually communicate anything other than engender with folks like me a lot of questions?"

Barton says he knows of at least seven cases where Christians have lost their bid to express their own faith in a public prayer.

Zed is reportedly the first Hindu to deliver opening prayers in an American state legislature, having done so in both the Nevada State Assembly and Nevada State Senate earlier this year. He has stated that Thursday's prayer will be "universal in approach," despite being drawn from Hindu religious texts.

Take Action
Send an email to your senator now, expressing your disappointment in the Senate decision to invite a Hindu to open the session with prayer.

Click Here to Email Your Senators Now!

If you think our efforts are worthy, would you please support us with a small gift? Thank you for caring enough to get involved.

Please help us get this information into the hands of as many people as possible by forwarding it to your family and friends.


Donald E. Wildmon, Founder and Chairman
American Family Association

P.S. Please forward this e-mail message to your family and friends!

There's so much to love, but I think my favorite has to be the simple declaration, "In Hindu..." Also, unless there are multiple Rajan Zeds in Nevada, apparently he used to be a postal worker and recently lost an appeal to the Federal Circuit. Hopefully no senator will be convinced by the AFA to stage the same sort of walkout a couple of Republicans did when a Muslim gave the invocation in the Washington State legislature.

Posted by PG at 9:36 PM | Comments (3) | TrackBack

The Good Things Paid Plaintiffs Have Brought Into Our Minds That Were Not There Before

(Post title inspiration.)

I'll have to wait until I read the full paper before I make a serious judgment, but on first glance Larry Ribstein's argument that the law should not prohibit Milberg Weiss's paying plaintiffs, because the prosecutors who made a plea agreement with Bershad also are paying off someone to participate in a court proceeding, seems really strange. Yes, of course prosecutors risk getting bad testimony by giving a benefit to a witness for his testimony that the witness would not receive if he didn't testify. But it's a cost-benefit analysis: until an intolerably large number of people go to prison on the word of false jailhouse rats or lying plea bargained co-conspirators, the number of people who go to prison on the word of accurate witnesses will be seen as too much of a good to give up.

Paid plaintiffs, on the other hand, provide no public good that I can discern. Reportedly, most named plaintiffs in securities class actions don't have to do much beyond signing their names to papers, and unless payments are extremely widespread, we're not short on people who will volunteer to be named plaintiffs without bribes to do so. All of the good provided by paid plaintiffs goes to the people paying them, i.e. the attorneys who are more likely to be assigned as lead counsel for the class by reason of having been first to file.

So why are the two, paid plaintiffs and plea bargained witnesses, worth comparing? Expert witnesses frequently give somewhat dubious testimony that is partly motivated by the desire to get paid by the party in whose favor they spin the facts.[1] Do such witnesses also make the law behind barring pay to plaintiffs suspect? Some people just aren't likely to participate in a judicial proceeding unless they are compensated. Neither the jailhouse rat nor the expert witness has a self-interested reason to get involved in a civil or criminal trial of other people. Indeed, the rat has self-protective reasons not to get involved. Sure, both rat and expert could altrustically, in service of the truth -- or in order to screw someone else -- volunteer to give testimony with no compensation of any sort, but that makes a large demand on selfish human nature.

Plaintiffs, in contrast, have an inherent interest in participating. After all, they are supposed to be vindicating their own rights or interests. If a plaintiff does not feel she has been in any way harmed, or if harmed, that the harm is not another person's fault, then the lawyer who hunts her down and convinces her that she has been harmed is an ambulance chaser. The lawyer who pays her to pretend to feel a harm -- to be a plaintiff when she otherwise would not be -- potentially manufactures litigation that otherwise would not exist. (Though possibly every case Milberg Weiss has had required a race to the courthouse because of other, unpaid plaintiffs who had espied a harm on their own, which would mean the litigation would have occurred regardless of whether a plaintiff had been paid or not.)

As for referral fees to law firms being equally (il)legimate as fees paid to plaintiffs, I don't know much about how referral fees are regarded in the legal profession. The American Medical Association has declared them unethical both when the doctor refers a patient to another physician/ facility, as well when the doctor refers a patient for a clinical trial (a situation where it is more often called a "finder's fee"). But to my knowledge, the fees are not illegal.

Again, one can distinguish this on self-interest grounds: why should a firm give a referral unless they are rewarded for it? As with physicians, I think this rationale is shakier than with the jailhouse rat or expert witness because doctors and lawyers are supposed to be professionals with fiduciary duties to their patients and clients. The doctor should refer a patient to a hospital or clinical trial because it benefits the patient, not because it benefits him, and the same should be true of the lawyer referring to another firm. But these are demands of disinterest that we make on professions; they are not the same as the self-interest -- the concrete and particularized injury -- a plaintiff inherently should have as part of standing.

[1] Ideoblog commenter Richard Painter says in support of Ribstein's point, "Expert witnesses in civil li[t]igation get paid a fixed amount -- usually an hourly rate -- regardless of how effective their testimony is for the party that retains them (or at least they should be)." That's true, but expert witnesses are chosen in advance based on how effective their testimony will be for the party that retains them. If I am suing Merrell Dow, I will retain only an expert who says that Bendectin causes birth defects, not the ones who say it isn't a risk factor. Painter's mistake is in looking backward on the plaintiff-expert relationship.

Posted by PG at 9:14 PM | Comments (0) | TrackBack

July 9, 2007

Tampons Are Medical Devices

According to Lexis:

Murphy v. Playtex Family Prods. Corp., Civil No. AMD 00-3664, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, 176 F. Supp. 2d 473; 2001 U.S. Dist. LEXIS 21531; CCH Prod. Liab. Rep. P16,229, December 19, 2001, Decided, Affirmed by Murphy v. Playtex Family Prods. Corp., 2003 U.S. App. LEXIS 12939 (4th Cir. Md., June 26, 2003)

OVERVIEW: Tampons were regulated as medical devices by federal law[,] which expressly preempted any different or additional state regulation of medical devices, including label regulations. Manufacturer acted reasonably in putting its product on the market.

That Fourth Circuit in Maryland, they love them some preemption...

If you're comparison-shopping tampons, be comforted to know that a 2004-issued FDA rule, which requires all tampon makers to label their low-absorbancy products "light" rather than "junior," came into effect earlier this year. There is no word to describe a tampon that absorbs more than 18 grams of fluid. (The persistent delicate references to "fluid" in the rule remind me of those maxipad ads where they dump blue-tinted water on the product to demonstrate its absorbant power.)

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July 5, 2007

Maybe I Need a Better Pick-Up Line

One of my biggest pet peeves in life is the feeling I get when I have some sort of a creative idea and then realize that someone else has thought of it long before me. I think I've even blogged about it here, but I'm not sure. The latest rejection comes from two Levinsions. At Balkinization, Sandy Levinson begins a post with:

As readers may recall, I'm a big fan of Daryl Levinson's argument that the Madisonian system of separation of powers cannot withstand the reality of party politics. Or, as he and his co-author Rick Pildes put it in a subsequent Harvard Law Review article, "Separation of Parties, Not Powers." So we have ever more data points to test the thesis.

Crap. I had the same idea this spring when I was reading on the Federal Convention for a paper on Gouverneur Morris. I'm not saying that I thought I was the first to come up with the idea. But I definitely considered a paper suggesting that the Constitutional design just did not contemplate partisan politics. Anyway, now I learn there's an entire thesis out there.

I'll get my big break soon enough. I'm still the first to think of writing a Simpsons and the Law Book. In fact, I practice issue-spotting for the bar by making marginal notes about Simpsons references. Tort negligence question = Homer getting a trampoline, Monorail, any Nick Riviera episode, etc. Elements of Larceny? Homer vs. Lisa and the 8th Commandment (1st Amendment issues here too for bonus points). Lionel Hutz is a goldmine for professional responsibility. So there, I think I have a unique contribution to law that no one has yet considered. Back to studying community property using Homer vs. Patty and Selma (Homer blows all their savings on Jack-o-Lanterns predicting that the price increase would continue through October and peak in January).

Posted by Armen at 7:18 PM | Comments (2) | TrackBack

Ford + Yoshino = Unified Theory of Same-Sex Marriage Opposition

At Slate on Monday, Yale Law prof Kenji Yoshino proffered the trademark-derived idea that opponents of same-sex marriage fear that extending the term "marriage" to the relationship between two men or two women will tarnish its meaning for male-female couples. Yoshino attributes this sense of tarnishment to homophobia: "Tarnishment claims arise only when the mark is being associated with something uniformly deemed unsavory." Before assuming this motivation for everyone who thinks same-sex marriage diminishes opposite-sex marriage, however, Yoshino would do well to read a column by Stanford Law professor Richard Thompson Ford published in Slate a year earlier (and linked at the bottom of his own piece), and to consider a related but slightly different concept from intellectual property law.

Ford's conclusion that much of the opposition to same-sex marriage is motivated by anxiety over sex roles accords well with my own observation that no one who thinks men and women are differentiated only slightly by genitalia and hormones seems to be bothered by same-sex marriage. In other words, all the opposition I've seen comes from people committed to the notion of a male husband and a female wife, to maintaining distinctions between the sexes. Sometimes this is related to a prioritization of procreation, but it needn't be. For such people, the meaning of marriage, the content of the concept, includes the union of one man with one woman. There can be no impingement on a trademark unless it has some meaning to it; to use one of Yoshino's examples, you can't degrade Tiffany's by using it for a porn shop unless Tiffany's had built up a non-porn meaning.

But I think it's possible to oppose same-sex marriage on this ground without necessarily being a homophobe, if the concern is not so much tarnishment as blurring. That is, the anti-SSMers may not think that heterosexuals are superior to homosexuals (after all, marriage requires no proof of heterosexuality), but they don't want their man + woman meaning for marriage to be blurred by adding man + man relationships to the category. Hence the greater friendliness toward civil unions; if same-sex couples just want the same state-mandated benefits and responsibilities that come with marriage, without using the trademark itself, they're more likely to win over the non-homophobes. They also may be joined in use of civil unions by opposite-sex couples who think marriage actually has negative connotations due to its history as a patriarchal institution, or just because both adultering Henry Hyde and thrice-wed Bob Barr have been part of it. Those who see the call for civil unions as solely a "a cynical electioneering ploy to try to please both anti-gay and pro-marriage-equality forces" are unduly harsh.

Were I living in Quebec or New Zealand, I might well have a civil union in acknowledgement of the fact that I don't have much attachment to religion or traditional sex roles, and therefore am deserving only of the wholly state-created designation rather than one dripping with other meanings. Alas, neither QC nor NZ is on the list of possible wedding sites. I find the UK's refusal to grant civil partnerships to opposite-sex couples almost as silly as their forced mock-marriages.

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July 3, 2007

Tolls Are Not Taxes

In an otherwise fine article, NYTimes business columnist David Leonhardt managed to irk me by declaring in passing that "tolls are really a kind of tax." Um, no. Tolls are a price we pay for using something that is otherwise free. I have used the New Jersey Turnpike and Garden State Parkway dozens of times, and the only charge to me were the tolls deducted from my EZ Pass. Compare that with my also-frequent use of the New York City subway system. I assume Leonhardt doesn't consider my purchase of a MetroCard to constitute "a kind of tax," yet I perceive no difference between that and my purchase of an EZ Pass. Each allows me to use transportation that I otherwise could not; each periodically takes a $40 chunk out of my credit card; each is run by local government; each gets kind of stinky depending on where you're passing through (Elizabeth, NJ, meet Chambers St. station).

Unlike sales, property and income taxes, tolls can be avoided while still engaging in the underlying activity, i.e. travel on the roads. Coming back to NYC on Memorial Day weekend, I avoided the Turnpike traffic and ended up avoiding its tolls as well, by traveling on small one-lane roads through New Jersey. (Which really is the garden state once you get off the tolled highways; I passed lots of farms, forests and -- alas for my hurry! -- pie stands.) In contrast, I can't buy a new toothbrush at Duane Reade without paying, in addition to the store's price, sales tax to the local government. I can't own a condo without paying, in addition to the previous owner's price and a host of closing costs, property tax to the local government. I can't give someone $20,000 without paying a gift tax to the federal government. In Texas, I can't go to a strip club without paying a special tax to go into the state's sexual assault treatment and prevention fund.

Being neither poor nor a Republican, I don't mind taxes. I accept that they are necessary to a civilized society. But I do distinguish between what I pay in order to use a particular road or subway myself, and what I pay whether I get direct use from it or not. I'm paying my federal income taxes even though the military isn't protecting my home from any invading army; I'm paying my local taxes even though neither I nor any dependent of mine is going to public school. To get back to the point of Leonhardt's article, if I noticed that tolls or subway tickets were getting too expensive, I could choose as an individual to abstain from using them. I cannot choose as an individual to abstain from paying taxes unless I want to make use of the tax-supported amenities of a federal prison.

UPDATE: Yes, I am familiar with the concept of a use tax, but at the point where we colloquially call any money that goes to the government, even when exchanged for a specific good, to be a "tax," we're getting rather circular. Toll roads can be run by private sector companies, and presumably such tolls aren't "taxes" in the sense of "a sum of money demanded by a government for its support or for specific facilities or services, levied upon incomes, property, sales, etc." One could construe Leonhardt as obviously talking only about public tolls, except that the phenomenon on which he's concentrating -- how electronic payment makes us inattentive to rising costs -- would be equally true if the Garden State Parkway were a private concern. I wouldn't accept that construction unless Leonhardt really were the sort of person who referred to an increase in subway fares as a "tax increase." I may just be circling around the fundamental source of my intuitive disagreement with Leonhardt, though I alluded to it when I said "Tolls are a price we pay for using something that is otherwise free," to contrast with the sales taxes we pay to the government in addition to the price we've paid to a private sector provider.

Posted by PG at 5:16 PM | Comments (2) | TrackBack

July 2, 2007

DC Circuit Calls Bullshit on Law Profs

A unanimous panel that included well-known conservative jurist David Sentelle decided today that Libby had "not shown that the appeal raises a substantial question under 18 U.S.C. 3143(b)(1)(B)." In the more heavily noted news of the day, that decision prompted President Bush to commute Libby's 30-month prison sentence. Though this may seem disappointing to those who had called for a pardon, it's actually a win-win. Win: Libby doesn't spend a single day in prison. Win: he still gets to appeal his sentence so he won't be a pardoned felon. Oh, and win: to my knowledge, the commutation does not preclude Bush from pardoning Libby should he lose all of his appeals before he dies. (Which in the 5th Circuit would have gotten him out of all liability, including the fine, but I don't know if death has the same cleansing effect in DC.)

I'm only sorry that the commutation precludes Libby's appealing the DC Circuit's decision to the full court, and then to the Supreme Court, so the argument could get slapped down a couple more times. Perhaps those lesser known defendants for whom Judge Walton said he'd request the lawprofs' help are better off without.

UPDATE 1: I didn't know that Libby had served as one of Marc Rich's attorneys at the time Clinton pardoned him, and that Libby had testified before Congress that he believed Rich was not guilty of the tax evasion and racketeering charges that Clinton had pardoned.

UPDATE 2: According to U.S. v. Pogue, 19 F.3d 663 (D.C. Cir. 1994), death before a completed appeal wipes the slate clean:

In Durham v. United States, 401 U.S. 481 (1971) (per curiam), the Supreme Court adopted the so-called "abatement rule," holding that "[d]eath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception." Id. at 483 ... The principle underlying the abatement rule is that "the interests of justice ordinarily require that [a defendant] not stand convicted without resolution of the merits" of an appeal. United States v. Moehlenkamp, 557 F.2d at 128. Each of our sister circuits but one has chosen to adopt the abatement rule, and the Government here concedes that we should adopt that practice as well, although not applied to these facts. Because we can find no basis for denying the rule's application in this case, Pogue's conviction must be vacated.
Durham did not make abatement required in the federal system, but instead has �allowed the scope of the abatement to be determined by the lower federal courts,� which are to rule �as law and justice require.� Nor will the Supreme Court necessarily abate decedents' convictions, as in Dove v. U.S., but the lower courts have reasoned that that was just meant to apply to the Supreme Court, not to themselves.
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Closed Down Due to Health Ethics Violations

(Post title inspired by Ratatouille, which does live up to the hype.)

Along with going smoke-free, the UK had another change on July 1, albeit one of less general interest: the Solicitors' Regulation Authority replaced the Guide to the Professional Conduct of Solicitors with the Solicitors' Code of Conduct for conduct that occurs after June 30 (prior conduct is still governed by the Guide). The SRA sounds the same as state bars, except that they do a few things that I don't know to be true of all state bars.

- We monitor the performance of organisations that provide legal training.
- We work with people and organisations that monitor our own performance, such as the Legal Services Ombudsman, Legal Services Complaints Commissioner and the Department for Constitutional Affairs.
- When necessary, we close down solicitors' firms so as to protect clients and the wider public, and returning papers and monies to their owners.
- We refer solicitors to the independent Solicitors Disciplinary Tribunal and deal with the prosecutions.
- We run a compensation fund to help people who have lost money as a result of a solicitor's dishonesty or failure to account for money they have received.
Alas, the change doesn't include letting non-QC solicitors wear wigs -- reportedly a sore subject for some time.

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