November 29, 2007

Today / 11.30.07

Today in History (1804) - The U.S. Senate begins an impeachment trial against Federalist-partisan Justice Samuel Chase. Also, happy 77th birthday to G. Gordon Liddy, Watergate operative, conservative talk radio host and "barking-mad, right-wing adventurist."

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That's Sick, Sick and Wrong!

In an email today:


Click here for the Gift Certificate Order Form or visit "latest news" on the New York homepage for more information.


Dear Loved Ones,

Even if I hadn't already paid my Bar-Bri fees, I apparently can get these certificates on the cheap from eBay. So feel free to show your love for me in Cash Money.


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Joining Instapundit Are:

Volokh (only one post so far)
And my competitors, both of whom are using banners.

***I'd like to take this opportunity to remind Mr. Bashman that when he was in a dead heat against the Conspiracy for a Webby, I threw the full weight and support of De Novo behind him. Seriously! And who sarcastically came to your defense when your impartiality bona fides was questioned? Moi!!! And who still thinks you look like Ben Howland, the #2 UCLA men's basketball coach? Uh hum. All I'm asking for is a subtle, yet witty sentence following a post about the latest blah blah blah holding from the Federal Circuit, e.g., "And speaking of non-obviousness, please vote for Nuts and Boalts at the ABA."

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November 28, 2007

If InstaPundit Can Do It

By "it," I mean ask for votes in the ABA Journal's ranking of the best 100 blawgs. I recommend that readers vote for Armen's Nuts & Boalts as the best of the student blawgs.

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November 27, 2007

Basics of Judicial Temperament, Part I

Ability to hear a cellphone in your courtroom without taking it out on the parties before you.

I don't think the judge had two hours of "inexplicable madness." He expects people not to have cellphones in his courtroom and he simply reacted disproportionately to a failure to obey this rule. What's so inexplicable about that?

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Politesse and Politically Correctness

I remember telling one of my college professors about six years ago that I was in a very small minority of people willing to defend "political correctness," though I preferred to call it "political manners." To me, what has become known as political correctness is simply an expansion of good manners to cover more of the polity. Like any other form of good manners, it should not be treated as a minefield where one enjoys others' blowing themselves up unwarily. As has been said of traditional etiquette, so is true of political etiquette: the goal is for everyone to feel pleased and at ease, not to make everyone uptight and unhappy.

Just as a polite hostess need not feel obligated to include children among the guests at a wedding ceremony (though it might provide some help to parents, it will do so at the cost of other guests' enjoyment), she also need not send reply cards with "Mr. and Mrs." already printed if such also is inappropriate to her guests nowadays, though it may not have been once. We simply have a greater variety of people in our public and social lives, and so the individual whose freely expressed opinions might jar against the new differences is expected to keep those opinions at home -- like the uninvited children.

Therefore I was all for Don Imus's firing, and am disappointed by Duane "Dog the Bounty Hunter" Chapman's. Imus believes that it's quite all right to be on a radio station heard by millions and call a group of high-achieving African American women "nappy-headed 'hos." The proper response of a society that disagrees with such public behavior is to remove him like he is having terribly odorous flatulence in a public place. The proper response to someone who used racial slurs in a phone call to his son, in the context of saying that he did not want that use to become public, is to judge him a private racist but not to deem him unfit for public exposure. Imus's persistent on-air remarks denigrating successful African Americans might have become legally actionable as creating a hostile environment, assuming any African Americans worked with him. Nothing of the sort could result from Chapman's because he kept his gas at home. Yet his show is gone and Imus's is back.

But "politically correct" now seems to be an actual substitute for the word "polite," when one wants to make a breach of good conduct look edgy instead of simply boorish.

B. Ben Baldanza, chief executive of the aggressively bare-bones Spirit Airlines, hit "reply all" to an e-mail message from a passenger who wished to be compensated for a delayed flight that caused him to miss a concert he was planning to attend. Mr. Baldanza�s response, which seemed to be intended only for a Spirit Airlines employee but subsequently appeared on multiple travel blogs, said: "Please respond, Pasquale, but we owe him nothing as far as I'm concerned. Let him tell the world how bad we are. He�s never flown us before anyway and will be back when we save him a penny."

While Mr. Baldanza may regret the manner in which his e-mail statement was delivered, his position hasn�t changed. "The point that I was making in that e-mail, maybe not as politically correctly as I should have, is let's not over-obsess or spend a lot of money dealing with customers with completely unrealistic expectations," he said, pointing out that the delay was due to weather and that the passenger was offered a $200 voucher toward future flights even though he had paid only $73 for two round-trip tickets. "When the fare's this cheap, we�re going to get another customer," he said.

I am wholly in agreement with Mr. Baldanza, and I loathe the chorus of complaints from airline passengers who have no brand loyalty and are shopping purely on price. We are now seeing what the Leegin majority said resale price maintenance is meant to prevent: the deterioration of service and the product sold in its purest form, close to the margin, with ruthless price competition. If we don't like how we're treated in economy, we should pay for a better airline or higher class. (Frankly, I'd pay an extra $50 for morning flights that guaranteed pillows, blankets and no screaming children.)

But political correctness has nothing to do with why he might "regret the manner in which his e-mail statement was delivered." The email was not unPC; it was impolite and impolitic (defined by the American Heritage dictionary as "Not wise or expedient; not politic: an impolitic approach to a sensitive issue"). It was impolitic in bidding the customer to "tell the world how bad we are"; it was impolite in calling the customer literally a penny pincher. But of course no CEO wants to announce that he is unwise or even rude. So he cloaks the deficiency in his behavior in the phrase "politically correct," which is a quality that almost everyone despises anyway. The objective is to get across that the problem is not that Mr. Baldanza was inexpedient or unmannerly, but that anyone offended by the email must be a thin-skinned oversensitive minority of some type. If it redounds to his disadvantage, it will be because he estimated wrongly; the population of angry fliers is a thin-skinned, oversensitive majority.

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November 24, 2007

About Those Brands...

It would be nice to see the Federal Trade Commission put as much effort into ensuring that luxury brands do not lie to consumers about the origin of their products, as U.S. Customs does into ensuring that knockoffs of said brands are not sold at prices with a much more reasonable relation to the actual cost of production. Come to think of it, the factory making the knockoffs may well be next door to the one working for the brand company -- it would expedite finding out what the newest styles will be.

(Admittedly, I haven't been often cheated in this respect because I'm cheap. The only mass-luxury branded item I own is a Prada handbag, and the Amazon retail price of $50 wasn't as wildly disproportionate to the production cost as the MSRP of $250 was. The interior metal tag claims it was made in Italy, but probably by those $3/hour undocumented workers.)

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November 23, 2007

Restrictive Covenants, Another Reason Not to Streak the Lawn

Fulfilling a UVa tradition can keep you from being able to live in certain subdivisions:

The deeds for new homes will stipulate that a homeowner cannot sell the home if the buyer or a future inhabitant is a sex offender. Violators will be required to sell the home and move.
Kent Canada, an attorney for the developer, said the homeowners association will conduct periodic checks of the Texas Department of Public Safety online database of registered sex offenders. The group will be empowered to take legal action against violators, he said.
Federal law prohibits discrimination based on factors including race, religion, gender and age. But court challenges to similar sex offender bans have been unsuccessful, Canada said. ...
Greg Lines, legal chair for the High Plains Chapter of the American Civil Liberties Union of Texas, said the sex offender ban could unfairly lump a wide range of offenders together. He cited an example of a man who was required to register as a sex offender because of a streaking incident.
The Lubbock subdivision of Milwaukee Ridge has a similar ban on sex offenders. Developer John Sellers said reaction has been positive.

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Bombs Instead of the Bar: Enforcing Professional Ethics in India

More South Asian lawyers in the news: today three courthouses in the Indian state of Uttar Pradesh were bombed, with the death toll currently at 13. A group claiming responsibility for this and other terrorist acts says this latest attack was in response to lawyers' mistreatment of alleged terrorists:

A little known group called the Indian Mujahideen has claimed responsibility. The group apparently sent an email to a private TV channel just five minutes before the blasts. ...
The mail further said that the blasts today were carried out because the police arrested two innocent people and framed them and lawyers at the three cities beat them when they were produced in court, refused to defend them and stopped others from taking up their case.
According to the police, the blasts may be in retaliation to the arrested terrorists being beaten up by lawyers and not being assigned even a counsel to defend them in the court.
If this story is accurate, the lawyers who work in Uttar Pradesh have a bizarre level of power over the courts:
Intelligence agencies here are investigating if the courts had been targeted in retaliation to the lawyers' assault on the JeM militants, police sources said. The JeM terrorists were roughed up by the agitated lawyers who almost succeeded in snatching them from the security personnel accompanying them in the court. Shouting slogans that the militants be hanged, the lawyers surrounded them and the police and PAC personnel had a tough time in taking them to safety.
Five militants, who were arrested in connection with the July 2005 attack on the Ram Janambhoomi complex at Ayodhya, had also failed to secure a lawyer as the Faizabad Bar Association had barred the lawyers to represent them. Unavailability of a legal representative resulted in repeated adjournments of the matter and things had come to such a pass that the authorities had approached the district and high court to shift the trial to some other place.
All aspects of the blasts are being investigated, including this angle, said a top police official on being asked whether courts might have been targeted as retaliation. Former president of Avadh Bar Association, Ashok Nigam, said the serial blasts were aimed at undermining the faith of the people in the judiciary.
Local lawyers said the JeM militants would not be allowed to enter the court here. Chief Judicial Magistrate, Bal Mukund, had to go to the district jail to hear the remand application of the police early this week.
Guess there's no equivalent of the Guantanamo Bay Bar Association for alleged terrorists in India, although at least in India the government intends to give terrorists trials, even if the attorneys aren't cooperating. Of course, the government's big fear is that Hindu mobs will attacks Muslims in reprisal for these terrorist attacks.

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November 22, 2007

Today / 11.23.07

Today in History (1954) - For the first time, the Dow Jones Industrial Average closes above its 1929 peak of 381.17.

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November 20, 2007

PG's Sources on the Second Amendment

For perhaps a different view than Prof. Eugene Volokh's, I offer my old, far-less informed analysis of what the Second Amendment means (Part I, Part II), which was written in response to Glenn Reynolds's 1995 Critical Guide.

The one major change I would make to those posts would be to give much more attention to the federalist interpretation of the Second Amendment, i.e. that it was intended to secure the states against the tyranny of the federal government. After three years of law school (and Fed Soc membership), this now strikes me as far more plausible than it seemed several years ago. It also makes the Court's granting cert to consider a District of Columbia regulation a more interesting case than a challenge to a state law might have been. State regulations of gun ownership could be deemed part of the state's right to decide how its own security is to be ensured, but a federal or D.C. law is more problematic from the federalist perspective. The Question Presented highlights this difference, inasmuch as D.C. isn't a state and thus no resident gun owner could be affiliated with its militia. Justice Thomas's skepticism of incorporation might have forced him to uphold a state law banning handguns, while he can freely strike down a federal/District one.

The source that has informed my most recent (in the past week) thinking about the Second Amendment is Cass Sunstein's TNR review of Mark Tushnet's book Out of Range: Why the Constitution Can't End the Battle Over Guns (Inalienable Rights #03). Sunstein's discussion didn't quite lead me to agree with him, instead inclining me back to the position I had when I first thought about the Second Amendment at all: that it would most properly protect citizen groups that took the responsibility for warehousing arms and training other citizens against the day when tyranny -- whether state, federal or foreign -- threatened.

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November 19, 2007

Too Swift on the Offer Boat

This would make a fun contracts question: if T. Boone Pickens initially offered $1 million to anyone who could disprove any one of the claims made by the Swift Boat Veterans for Truth, and John Kerry accepted that offer, can Pickens now require additional consideration from Kerry in the form of "1) the journal [he] maintained during [his] service in Vietnam. 2) [His] military record, specifically [his] service records for the years 1971-1978, and copies of all movies and tapes made during [his] service"?

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November 18, 2007

Family Guy Just Lost Its Law Points

In fairness to creator Seth MacFarlane, tonight's episode of Family Guy was made and broadcast without his participation or approval, as he's part of the writer's strike. Perhaps the episode was just written sloppily and hastily by the scabs. Whatever the cause, the plot turned on a point of law that was utterly erroneous.

To recap the episode, at a Veteran's Day parade Peter begins to feel hyper-patriotic, and goes on a campaign against immigrants. His HR director at work agrees that she should check on everyone's legal status, so Peter asks his mother for his birth certificate to prove that he was born a U.S. citizen. She tells him that after realizing his biological father was a drunk Irishman, she went to Mexico for an abortion, but ended up giving birth to him there. Peter's mother was too embarrassed to let anyone know about this, so she never did the paperwork for his citizenship, and tells him that he therefore is not a citizen.

As probably every law student, recent graduate and immigration lawyer watching the episode yelled out, that's incorrect. The child of a married U.S. citizen who is born overseas is a citizen at birth, and so is the child of an unmarried U.S. citizen mother. No paperwork is necessary under 8 U.S.C. 1401(g). INS v. Nguyen examined whether the rule that the child of an unmarried U.S. citizen father did not have citizenship at birth was sex discrimination, and ruled in a 5-4 decision that it was not. (Bad Stevens! Bad!)

The only way the episode could have made the plot point work would be to state or imply one of the following: that Peter had been born prior to May 24, 1934, at which time only U.S. citizen fathers, but not mothers, could transmit citizenship to their children; that Peter had been born before December 24, 1952 and his mother had not resided in the U.S. for at least 10 years, at least five of which were after attaining the age of 16 years; or that Peter had been born before November 14, 1986 and his mother had not resided in the U.S. for at least 10 years, at least five of which were after the age of 14. This would work quite easily if Peter's mother had been under 21 at the time of his birth, at which point it would have been impossible for her to reside in the U.S. for five years after turning 16.

Had the episode stated that Peter at one point had citizenship but had lost it due to his overseas birth, this would work if he was born before October 10, 1978 and had spent less than two years in the U.S. between the ages of 14 and 28.

To see Family Guy screw up the law like this is disappointing after this bit.

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Eisner Expanded

The only possible tie between this post and the law is that the Topps acquisition Michael Eisner spearheaded and its attendant litigation became the subject of a tussle between the Delaware chancery and New York commercial courts. Anyway, Eisner doesn't come off very well in Deborah Solomon's brief interview of him.

1. Solomon: What kind of name is Vuguru? To me it sounds like a drug, like Vioxx or Viagra.
Eisner: If it reminds you of something that creates new strength, I guess that�s O.K. In French, vous is second-person plural. Vuguru -- you are the guru of viewing. It was just a made-up word.

2. Solomon: Just last month, you put together some $385 million to acquire Topps, the manufacturer of Bazooka bubble gum and baseball cards.
Eisner: Topps is a brand that�s in the brain-waves of about 70 years of the American male. I can take that affinity and turn it into a sports-media company. Topps has many assets, and Bazooka has Bazooka Joe, and I could have fun making a Bazooka Joe movie.

3. Solomon: Why is Bazooka Joe always wearing an eye patch in the mini comic strip that comes wrapped around the gum?
Eisner: That is what we are going to find out in the movie.

4. Solomon: Wasn�t he a bit of a delinquent? He wasn�t faithful to his girlfriend, Zena, if I recall.
Eisner: He was not a delinquent. If he wasn't faithful to his girlfriend, by the way, he wasn�t 25 years old and married with three kids. It�s O.K. She�ll survive. It�s good for her.

1. It seems more likely that vous would be used here in its meaning as the second person singular formal, because if it were plural, it would be Vugurus (translated into American English, "y'all are the gurus"). I'm not even going to get into the misuse of the word guru because I wouldn't expect whoever came up with this to know any better anyway.

2. I guess Eisner's Bazooka Joe movie would thoroughly discredit this McSweeney's piece.

3. According to the the Topps folks, Bazooka Joe has both his eyes, so the movie explanation will have to fit with that.

4. Um, wow.

As for Eisner's political predilections, like most sensible CEOs he donated to both sides of the aisle.

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CLS Time in the Times

Still waiting for Megan McArdle's return from Cambodia, I point those who share her certainty that public school supporters wouldn't possibly send their own children to distressed urban school systems to this article on James Liebman. He used to be my criminal law professor, but he now works for Chancellor Joel Klein as chief accountability officer for the New York City public school system. Even NYC has some public schools good enough that the affluent liberals McArdle rails against will send their children to them, as Liebman's kids attend schools that earned an A and a B on his report card. Students whose schools under-perform have the option to enroll at better schools, including at the public charters.

My current professors in the NYTimes: Perhaps envious of Gordon's prescient piece on A-Rod's signaling, Coffee has an analysis of the Barry Bonds prosecution in today's paper. I admit to some confusion regarding a sentence in the first paragraph: "Unless the government has an undisclosed eyewitness who saw Bonds receive injections or heard him admit to steroid use, this trial stacks up as a classic credibility contest."

Wouldn't testimony from someone who heard Bonds admit to steroid use be considered hearsay? I'm running the hearsay exceptions song (contrary to the YouTube description, created by E-Spat's classmate) in my head and can't think of one that fits the situation. I suppose there is the hearsay exemption for admission by a party-opponent, though that would seem to force Bonds into testifying so he can say the government's witness is a liar. On the other hand, Coffee notes that waiving his 5th Amendment right would be very unwise. (The prior statement by a witness exemption doesn't work because the statement to which the government's witness would testify wouldn't have been made under oath.)

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November 17, 2007

Please, No Team O'Connor

LawBeat's Mark Obbie responds to my surprise (that he would criticize Supreme Court beat journalists for ignoring stories about former Justice O'Connor's husband's Alzheimer's-related behavior) by pointing to Poynter's background on how the original Arizona TV news story came to be. Although I know a few people thought even that first report was inappropriate, I didn't. In the Poynter's article, the reporter says she had come up with the issue of "mistaken attachments" and was going to discuss it in reference to another residential facility altogether until that possibility fell through, and that it was by that accident that she ended up doing a story at John O'Connor's home. This only reinforces my distinction between a news story about an illness that happens to affect family members of a judge, which I thought unobjectionable, and a news story about the family life of said judge, which I thought crossed the line into gossip.

Neither story, however, is one that a Supreme Court reporter has any business telling. The first falls outside his subject area and the second falls outside what someone with pretensions to reporting about the law -- in contrast to reporting about legal actors as though they are celebrities -- would be reporting. To draw a comparison, reporting about Justice Ginsburg's health, particularly when she was falling asleep in oral arguments, is an unfortunate necessity for a Supreme Court reporter, who as one of the relatively few people able to watch oral arguments has an obligation to tell the rest of us what happened in them. Ginsburg is a current justice and her health is a matter of tremendous concern, particularly for those who wish her well not only for her own sake but also for instrumental political reasons, i.e. the fear that her place on the bench could be filled by another conservative.

What on earth does Justice O'Connor's husband's behavior due to his illness have to do with any of us? His illness was worthy of report as the reason she stepped down, and if its further degeneration led her to withdraw from public life, especially from filling in as a judge, his failing health would be of interest again. The specifics of his health -- whether he's taking Vitamin E, anti-depressives, Namenda; how he's dealing with personal hygiene or emotional attachments -- are of interest to people who care about Alzheimer's, not people who care about law. Perhaps it shows that I'm just a horrible uncaring person, but I don't particularly care more about Alzheimer's than any other disease not affecting my loved ones, and I don't understand why, as a law student, I'm now aware of a particular Alzheimer patient's behavior.

Obbie says, "I understand readers' squeamishness." It's not squeamishness, except inasmuch as a desire not to know details of retired judges' lives (I don't care whether Luttig has a really sweet office at Boeing, though I'd consider it a perfectly worthwhile subject for a magazine on workplace design) constitutes squeamishness. It is just a recognition that there are different spheres and pulling something that properly belongs in one sphere, such as a report on Alzheimer's, into another -- like a report on Justice O'Connor -- is a bad idea.

Obbie continues, "But I'll bet a lot of the commentators haven't even bothered to watch the Sanchez/Sass report, told in such a human, moving way. It's not exploitation. It's news because it's about life." I watched the original report twice (I had to watch again to back up my impression that it hadn't mentioned Justice O'Connor until literally halfway through). The original report is perfectly nice and non-exploitative. Again, that's why I pointed out the difference between it and the stories that followed in other venues like USA Today and Above the Law.

But (here I go again), it's also news because of the role that John O'Connor's illness played in changing history. Justice O'Connor's place in history, as the first woman and longtime swing vote, puts her a notch above the average Supreme Court justice. She forfeited that position to care for her husband. That doesn't mean that the family then loses all privacy, but I'm arguing, astonishing though it may be, that John O'Connor's attachment to another woman, and Sandra O'Connor's peace with that decision, is news even stripped of its obvious value in teaching us about Alzheimer's.
In his "how-not-to list for legal reporters," Obbie cautions journalists not to "[g]enuflect to the black robes," because "the public interest requires that we serve as a check on judicial power and misbehavior." Certainly, but is it a genuflection to distinguish between "the public interest" and "whatever the public might find interesting"? If "John O'Connor's attachment to another woman, and Sandra O'Connor's peace with that decision" is news because of Justice O'Connor's involvement, it's not Supreme Court news. It's not legal news. It's celebrity news, and for those of us who are bored with the media's fascination with the minutiae of celebrity life, treating Justice O'Connor like Team Aniston is annoying. I devoutly hope that Supreme Court reporters will ignore Obbie's call to do so.

(At a Q&A with Justice O'Connor Wednesday morning, every question was related to her work as a public person in Arizona's legislature and judiciary, on the Supreme Court or for the Iraq study group. Journalists have abstained from following an NYU student's lead in asking about one Supreme Court justice's marital life; I wish they would now follow Columbia students in not asking about another justice's marital life.)

UPDATE: The New York Times handles it OK, with a post on the health blog and a Week in Review article, both of which begin by noting the O'Connor family but then moving on to talk about the larger issues of Alzheimer's and elderly love, respectively.

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November 15, 2007

Murder by Smashed Petri Dish!

Via Feministe/ Echidne comes the news that a group calling itself "Colorado for Equal Rights for Human Life" is gathering signatures to put a constitutional amendment on next year's ballot. The question is, Shall there be an amendment to the Colorado constitution defining the term "person" to include any human being from the moment of fertilization, as "person" is used in those provisions of the Colorado constitution relating to inalienable rights, equality of justice, and due process of law? To the Associated Press, the measure's proponents claim, "It doesn't outlaw abortion, it doesn't regulate birth control"; in a right-wing forum like WorldNetDaily, they openly say they are trying to use a "loophole" in Roe v. Wade.

Fetal personhood would be such a far-reaching change in American law that even a few abortion prohibitionists point out the potential unintended consequences: women prosecuted for negligent homicide if they accidentally cause a miscarriage, or for reckless endangerment if they engage in behavior that could harm the fetal person. Other conservatives have responded that either women should be prosecuted for (potential) damage to fetuses, or reiterated the claim that the constitutional amendment won't add any new laws. The latter belief ignores the fact that all our existing criminal laws apply to all natural persons. If the laws against negligent homicide or reckless endangerment weren't applied in the case of fetal persons, they obviously would not receive equal justice and due process.

Given the opposition of many abortion prohibitionists to assisted reproduction clinics, the potential consequences for such facilities may be welcome. At the moment, negligent administration of such clinics is punishable only in tort; if a worker accidentally breaks the container holding embryos for implantation, or their generators fail during a power outage and thereby defrost thousands of stored embryos, the couples to whom the embryos belonged can sue for the destruction of property. Because of how much such facilities charge their customers and the availability of insurance to cover the cost of lawsuits, the prospect of such civil damages do not deter reproductive clinics. They also have the option of requiring clients to contract out of holding the facility liable.

Once the embryos are people, however, someone would be very risk-friendly to work there, knowing that a mistake in handling a single round of implantations resulting in eight embryos could result in his being prosecuted for eight homicides. Again, a failure to treat someone who dropped a container of eight embryos the same way we would treat a person who managed to drop and kill eight infants would be an unconstitutional denial of equal justice to the embryonic persons.

Posted by PG at 7:22 PM | Comments (0) | TrackBack

Difference Between the First and the Follow-Ups

Astonishingly, Newhouse's LawBeat blog scolds Supreme Court reporters for not covering the story of retired justice O'Connor's husband's forming a new relationship at his Alzheimer's home. Mark Obbie and many others don't seem to understand the difference between the original news report by a local Arizona TV station and the subsequent retreadings. The TV report focused on the Alzheimer's aspect of the story; Mr. O'Connor and his son Scott initially are introduced simply by their names, with their connection to the justice mentioned only after the subject of the report -- how Alzheimer's patients may fall in love with someone new -- has been clearly established, in part by noting other patients at the same care facility who have done the same. The mention of Justice O'Connor is actually necessary to this telling of the story, because she is contrasted with a spouse who was much less understanding of his wife's interest in another man. The total news report is 2 minutes, 51 seconds; the Justice O'Connor connection is noted halfway through.

In contrast, the USA Today story by O'Connor's biographer and repeated tellings on specifically law-oriented blogs, especially the initial tacky headline on Above the Law, are much less interested in Alzheimer's and instead focus on the Justice O'Connor aspect of the story. On the one hand, this makes sense; biographers of Supreme Court justices and other legally-oriented writers have no particular reason to report on Alzheimer's any more than they would Parkinson's. On the other hand, their blatant lack of interest in the medical side of the story devolves it into mere gossip mongering. The reason for the O'Connors to have cooperated in the story -- to help raise awareness and show that at least one spouse can be happy for her ill husband -- is completely lost if the story is about Justice O'Connor rather than about this Alzheimer's behavior.

Hopefully Obbie will figure out that's why Supreme Court reporters don't consider this story to be worth their notice. Properly told, it's about a medical condition and thus belongs in the Health or Life section, not in the Legal one. ATL is openly a gossip site, so its coverage is unsurprising. But I doubt even Dahlia Lithwick, who has declared it her mission to demystify the Supreme Court, would want to explain why law geeks should know or care about how a particular disease has affected the behavior of someone who was never even a well-known attorney in private practice.

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November 14, 2007

For the Birds

I am bewildered by the Texas legislature's apparent belief that killing humans isn't inherently cruel, but killing cats is.

Humans' cruelty to animals is wrong and ought to be criminally punished, but its immorality is based in what it reveals about the humans' indifference to or enjoyment of suffering, not because animals have rights. Inasmuch as James M. Stevenson, bird-fancier and cat-killer, can be proven to have acted with intent or recklessness as to whether the cat he shot suffered, he reasonably could be described as engaging in cruelty toward animals. The old statute, under which he was indicted, is ridiculous, and the new one passed in response to this case is little better. The old state law prohibited killing a cat "belonging to another," yet a tort suit is the proper and traditional response to an act that is bad because of ownership. H.B. 2328 at least specifies that a violator of the animal cruelty law "tortures an animal or in a cruel manner kills or causes serious bodily injury to an animal," but retains the provision that one commits an offense if one "kills or causes serious bodily injury to an animal without legal authority or the owner's effective consent." That's a crime against property, not against morality.

One can kill an animal without necessarily being cruel to it. Indeed, it may be more possible to do this for dumb beasts who can't see it coming than it is for death row inmates.

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Does Affirmative Action Create Some Race-Based Barriers?

Katherine Y. Barnes, an Arizona law professor with a Ph.D. in statistics, mounts what appears to be a strong challenge to Richard Sander's conclusion that affirmative action causes minority students to fail the bar exam when they otherwise would have passed. However, as I skimmed Barnes's article, I saw no discussion of whether affirmative action itself may create some of the hostile learning environment and stereotype threat that under-represented minority students face. That is, if students and professors believe that African American and Latino students are less capable than white and Asian students, because the former were admitted under an affirmative action program and the latter on a "merit-based" system, this itself may be a significant source of discriminatory attitudes that impede minority students' learning. Even more disturbingly, if affirmative action programs cause minority students to believe themselves less capable than their classmates, the stereotype can become a self-fulfilling prophecy.

I don't know what would be a workable solution to this problem, and indeed I suspect that even if a school abruptly ended racial preferences in admissions, there would be a significant overhang of negative attitudes toward the abilities of minority students. In my experience, white conservatives especially often assume that someone who could be an affirmative action beneficiary must be one, and that if the number of African Americans at an institution isn't significantly reduced after the declared end of racial affirmative action (and sometimes even if it has declined tremendously, as in UCLA's 2006 freshman class), that the program must be continuing in some obscure, secret fashion.

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The U Word

I'm enjoying Megan McArdle's blogging from Vietnam, but I'm curious to get her take on the fairly resounding defeat of the voucher referendum in Utah. Given her frequent complaint that voucher opponents are affluent suburban liberals, I'm really wondering how the voucher plan failed in every one of Utah's 29 counties, some of which are presumably neither affluent nor suburban, and by nearly two-thirds in the state as a whole, which I've never thought liberal.

UPDATE to provide some context: I think meaningful oversight and some degree of school choice are vital to ensuring decent public education in urban areas. I love what's happening in New York City under the leadership of Chancellor Joel Klein, despite some missteps like the letter-grading system*; the public charters and small schools for the most part seem to be flourishing, and I've been working on a pro bono project for Federalist Society students to help these organizations navigate legal issues.

However, I've never gotten a good answer from voucher proponents about what their proposals have to offer to people in small towns and rural areas. The first person I asked about this said something vague about tele-education; the second (from the Institute for Justice) referred to Maine towns that historically, instead of maintaining public schools, have paid per-student tuition money to the out-of-town schools of parents' choice, whether public or private. Unfortunately, neither of these sounds like a fix for my family's educational situation: living in a town with one mediocre public high school, no private schooling past 6th grade*, no other public high school for 20 miles and no private high school for 100 miles. The idea of setting the public high school kids I knew in a tele-education room with no teacher physically present is absurd; even my honors Chem II classmates would get rowdy and stop doing their work if the teacher was bad at keeping order.

Perhaps if parents were given public funds that could go to the private secondary schools of their choice, such schools would arise, but I rather doubt it. There were multiple public and private elementary schools (I went to an Episcopalian one, but there also was a Baptist academy), but after 5th grade, everyone went to the same public middle school, junior high and high school. For whatever reason, there did not seem to be enough interest to support a private option, and having more than one public school creates two problems: splitting your football talent across multiple teams, and increasing the probability of de facto racial segregation by housing pattern. To see what happens when a deep East Texas town has two high schools, consider the predominately black John Tyler and predominately white Robert E. Lee high schools of Tyler, the largest town in the area.

While vouchers proponents assume that Utah voters were duped by the National Education Association, I wonder if the majority of them live in towns rather more like my hometown than like McArdle's, and thus had the same question: What are vouchers going to do for me?

* Speaking of grading schools, Ohio has given over half of the state's charters a D or F (57% of charters got those grades, compared to 43% of traditional public schools in big cities) and the Democratic attorney general is suing to shut some of the failures down, against the protests of the Republican-controlled legislature. With all due respect to AG Marc Dann and his staff, this seems both legally and politically misguided. Legally, the legislature probably has to authorize the AG to close schools; politically, this will be a great issue for the next election. Republican inaction on failing charters + donations to those Republicans from the largest commercial operator of charters, David Brennan = sweet campaign ads.

** A Christian Academy affiliated with a Nazarene church arose a few years ago, which goes up to 8th grade.

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November 12, 2007

Go Down Moses

"Indeed, news stories now regularly report that a baby has been discarded despite the availability, and sometimes the proximity, of a Safe Haven. ... Texas's Baby Moses Law was similarly born from tragedy, or a bundle of tragedies, in Houston in 1998. In that year, thirteen newborns were discovered in dumpsters or on doorsteps; three were dead. ... Social science research on neonaticide indicates that there is a conceptual disjuncture between what is known about the characteristics of women who kill newborns at birth and the more contemplative model of maternal decisionmaking imagined by the legislation."
-- Carol Sanger, "Infant Safe Haven Laws: Legislating in the Culture of Life," 106 Colum. L. Rev. 753, 759 (2006).

The person who abandoned a newborn in an obscure area outside a Katy-area fire station over the weekend did not legally comply with the Baby Moses Law, child welfare officials said Monday. ...
If an infant is abandoned at a designated emergency care provider such as a fire station, police station or hospital in a manner that causes harm to the infant or exposes the infant to a risk of harm, the case does not qualify as a Baby Moses case, Olguin said.
"Leaving it outside by some bushes or by the air-conditioning unit where the child may not be found is not covered under the Baby Moses law," Olguin said. "It was just luck and chance that this child was found." ...
He was the third infant abandoned in the Houston area so far this year, but the first whose dropoff conditions did not comply with the Baby Moses law, Olguin said.
-- Peggy O'Hare, "CPS: Infant's abandonment violated Baby Moses law," Houston Chron., Nov. 12, 2007.

(Sanger's article strikes me as mostly accurate in its description of the disconnect between Safe Haven laws and the actual psychology of the small number of women who kill or recklessly abandon infants. However, I disagree with its attempt to connect Terri Schiavo to the specifically anti-abortion aspect of the "culture of life.")

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Pakistani Lawyer Style

I've found the woman to emulate for Tuesday's show of support to the Pakistani lawyers who have been protesting President/ General Pervez Musharraf's house arrest of the Supreme Court and suspension of the Constitution. Bottom center of this photo from Newsweek:


Colorful scarf over unbuttoned white button-down, chunky black and white bracelet, big sunglasses and having a good uncovered hair day. Note to Columbia hunger-strikers: Style Counts!


Dear Law Students:

Images last week of police beating and jailing almost 3,000 Pakistani lawyers were almost as shocking as Gen. Pervez Musharraf suspending Pakistan's constitution and putting its Supreme Court under house arrest.
The American Bar Association immediately spoke out against these clear breaches of the rule of law. But, American lawyers must do more to object to conditions in Pakistan.

On Wednesday, November 14, the ABA is organizing a lawyers' march in Washington, D.C., to support the rule of law and lawyers in Pakistan. At 11:30 a.m., a critical mass of lawyers will gather at the James Madison Building (101 Independence Avenue SE) before walking around the Supreme Court. Lawyers across the country are participating in similar marches in their communities, and the ABA is encouraging and supporting these local efforts.

Over the last few days, brave Pakistani lawyers have dressed for work and headed to court knowing that they would be met by policemen's batons and tear gas instead of their clients. These lawyers went to work anyway because of their belief in the rule of law.

It is time for us to demonstrate that we share Pakistani lawyers' commitment to justice. Please encourage your fellow students and faculty to join lawyers in Washington, D.C., or in your community as we walk to court on November 14. Together, we will show that Pakistan's lawyers are not fighting alone.

For more information about the lawyers' march in Washington, D.C., or state and local activities, please visit the ABA website at

Thank you for your support.

William H. Neukom
President, American Bar Association

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November 11, 2007

No Humans Involved

The first sentence of Ms. magazine's review of Silja J. A. Talvi's Women Behind Bars: The Crisis of Women in the U.S. Prison System induced my skepticism: "NHI, or no humans involved, is police jargon for the morgue remains of women prostitutes and African Americans." I found it improbable that police officers -- some of whom are themselves women and/or people of color -- would have a widespread term that reduced others of their race and sex to nonentities. However, it's a real and apparently well-known term among those involved in law enforcement.

There's an innocuous way to see the phrase, as in a recent local news item on police jargon: "A great cop phrase is, 'NHI.' This means 'no humans involved.' Cops use it when they are dealing with insignificant matters." It's also been applied to male as well as female prostitutes, and to whites perceived as part of the underclass. From what I have seen, the phrase is most frequently connected with the killings of 45 women in San Diego from the mid-1980s through the early 1990s: a public art project about the serial murder; a police officer writing about his experiences (and other cops' referring to the slayings as "misdemeanor murders"); a feminist work about violence against women.

The offensive use of "No Humans Involved" to signify the speaker's low opinion of people isn't peculiar to police, either. Earlier this year, Judge Charles Greene of Florida's 17th Judicial Circuit (Broward County) roused controversy by telling a prosecutor not to feel badly about a jury's not-guilty verdict, because the attempted murder had been of a minority and thus "N.H.I." His request to be reassigned from the criminal to the civil division was granted.

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November 9, 2007

Mystery Explained

I was wondering why so many people were searching Heide Iravani's name. Admittedly, one of the IPs was from a top 20 law firm that theoretically could be checking her online reputation before extending a job offer, but as none of the other searches were coming from law firms, it seemed unlikely that Iravani's potential employers were all looking her up in the same 7 hour span today. Brian Leiter and Concurring Opinions reveal that the lawsuit brought by two Does against several anonymous commenters has dropped its sole named party: Anthony Ciolli, a recent Penn Law graduate who had worked with Jarret Cohen on AutoAdmit and associated projects.

Speaking of Concurring Opinions, I recently received Prof. Solove's new book, The Future of Reputation, and hope to review it soon in the context of the Yale Pocket Part pieces and of this lawsuit. Although the YPP's call for papers was what first brought my attention to AutoAdmit, both the resulting articles and lawsuit postdate my prior post about AutoAdmit, which generated several responses from Cohen and a few from Ciolli. (The lawsuit also postdates the revocation of Ciolli's job offer, despite what the WSJ Law Blog implies.) Incidentally, the updated complaint mentions the xoxoreader blog, which reposts the threads the owner considers the best of AutoAdmit and which has the top Google hit for Ms. Iravani's name, but does not name "hazelrah" as a defendant.

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November 8, 2007

Time to Go Back to Strunk'n'White

Evidently the writing on De Novo (and even on my old blog) is more complex than it ought to be. I consider the Volokh Conspiracy a decent metric of what I would want my legal writing to be stylistically, if not substantively, and on the "Blog Readability" meter, it was assessed as Junior High -- same as the NY Times, and about what one would want for a general audience. Unfortunately, De Novo appears to be unreadable except to a small minority of people.

Suggestions on improvement are truly welcome.

1. Sheer egoism. Desire to seem clever, to be talked about, to be remembered after death, to get your own back on the grown-ups who snubbed you in childhood, etc., etc. It is humbug to pretend this is not a motive, and a strong one. Writers share this characteristic with scientists, artists, politicians, lawyers, soldiers, successful businessmen -- in short, with the whole top crust of humanity. The great mass of human beings are not acutely selfish. After the age of about thirty they almost abandon the sense of being individuals at all -- and live chiefly for others, or are simply smothered under drudgery. But there is also the minority of gifted, willful people who are determined to live their own lives to the end, and writers belong in this class. Serious writers, I should say, are on the whole more vain and self-centered than journalists, though less interested in money .
-- from Orwell's list of motives to write
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Unsurprisingly, NYC Bar Is Team Lawyers

At the moment, the Pakistani lawyers are beating the Burmese monks in Gawker's poll of which group of Asian protesters is hotter. Having gone to a happy hour fundraiser for the monks last month, I now feel vaguely obligated to attend the following as well, except that it features neither booze nor a casual dress code:

As an expression of solidarity with our beleaguered colleagues at the Pakistani bar, the New York City Bar Association, the New York State Bar Association, and the New York County Lawyers' Association, in conjunction with other organizations, invite you to attend a public rally in front of the New York County Courthouse, 60 Centre Street on Tuesday, November 13, from 1:00-1:30 p.m.

The crude and brutal suspension of law and the legal system in Pakistan, and the repression of judges and lawyers there, require that we take a moment from our own busy schedules and demonstrate our concern.

Because the images from Pakistan show the violent repression of Pakistani lawyers wearing their customary dark suit and white shirt, we request that you appear on Tuesday in similar attire, though this is not required. What is important is a strong show of support.

We hope to see you there.

Er, were there any female Pakistani lawyers, perhaps wearing skirt suits? 'Cause I think that's all I've got clean at the moment...

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November 7, 2007


Despite Pat Robertson's endorsement, according to a bigger authority it appears to be "formal cooperation in evil" disqualifying one from Holy Communion if a Catholic's vote for Giuliani (as opposed to one of the other candidates, such as Mitt Romney) was motivated by Giuliani's more permissive stance on social issues such as abortion. In contrast, a Catholic who votes for a Democratic candidate despite his/her pro-choice stance is considered to have engaged in "remote material cooperation, which can be permitted in the presence of proportionate reasons."

This website feels disturbingly intrusive, even though whether and in which primaries one has voted may well be public information.

I'd be surprised if whoever makes filtering software for restrictive workplaces doesn't have this URL on the blacklist by now, but for what it's worth, puts your unapproved internet activity into a purportedly safe-for-work Microsoft Word file. You can even watch YouTube videos embedded in the site you're viewing.

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Ingenious Minutewoman

From Milbarge at Begging the Question:

One way to solve the immigration problem
I was vaguely following this story about the 25-year-old Nebraska teacher who absconded to Mexico with this 13-year-old boy she'd allegedly been having a sexual relationship with. But I happened to catch the detail that the boy had to stay in Mexico after authorities found the couple, because he was in the United States illegally. I was amazed by this. I assume the woman will use this as her defense now: she wasn't running away with the boy, she was a one woman Minuteman, solving the illegal immigration issue one person at a time. You know, by sleeping with them and luring them across the border. I assume the GOP will endorse this approach leading up the 2008 election.
But what if the teacher gets knocked up and there's now a U.S. citizen baby with a 13 year old Mexican dad -- can the dad use that as an "anchor baby" to get himself back to America? Then again, I suppose if a conservative's terror of immigration overcomes his concern about abortion, there's really no problem here.

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November 5, 2007

If only I had five years experience (and a law degree)

PG's post on the Liberian law fellow position reminded me of this job posting I came across for an Associate Supreme Court Justice in Palau.

Associate Justice Supreme Court of Palau

Description: The Supreme Court of the Republic of Palau is seeking an Associate Justice to preside over trial and appellate proceedings. Palau, a small tropical island nation in Micronesia, is renowned for its unspoiled natural beauty and unique marine life. Until 1994 when it achieved independence, Palau was a United Nations Trust Territory under U.S. Administration: its legal system continues to borrow from U.S. common law while also recognizing local customs and traditions.

Qualifications: The Supreme Court is seeking individuals with a sense of adventure, an acute legal mind, and a commitment to the thoughtful development of Palauan law. At least five years quality legal experience is required, ten years preferred

Salary: $80,000 U.S. Dollars, housing, relocation costs, and a health insurance stipend

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November 2, 2007

If Only I Didn't Have a Mortgage

And knew more about Liberia than I picked up from listening to its interim president, this would be awesome:

The Government of Liberia
*Law Fellow
Overview/Qualifications: The Government of Liberia, working in cooperation with the John Snow, Inc. Research and Training Institute (JSI R&T) and the Center for Global Development (CGD), is seeking 3 young professionals with strong legal backgrounds to serve as Law Fellows working in the Ministry of Justice (MoJ) in Liberia for one year. This job presents a unique opportunity to work on substantive projects on a range of progressive legal issues, including ethics, policy, and criminal justice, among others. Liberians are especially encouraged to apply. The candidate should have strong knowledge of and familiarity with Liberian history and customs is highly desirable; a law degree (LLB or JD), and at least 1 year of relevant experience; and admission to a bar. The applicant should list all bar admissions in his/her application
Duties: The Law Fellow's responsibilities will vary from position to position and will depend on the specific senior official with whom they work, but may include providing litigation, commercial or other legal support as directed by the Minister of Justice or other officials designated by him; researching law and draft memoranda reporting relevant
findings; and framing, articulating, and preparing recommendations for senior MoJ officials/staff to resolve assigned issues.
To apply: The application process is being managed by JSI R&T (not by CGD). Applicants should submit a cover letter of no more than two pages describing key qualifications, area of expertise, and career objectives, along with a CV/resume (yes we know that's Veteran's Day!) to:
David Pyle, PhD. Senior Associate, JSI
Please indicate "Liberian Law Fellow Application" in the subject line.
Deadline: November 12, 2007
Salary: Unspecified

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November 1, 2007

The Opposite of a Mail-Order Bride (IMBRA)

The potential problems raised by the information asymmetry implicit in the international marriage broker business have received sufficient attention that the industry is now regulated by the IMBRA of 2005, which requires these services to disclose American clients' sex offender status to prospective foreign spouses before allowing the former to contact the latter. The services also are supposed to collect American clients' criminal and marital histories, but are not required to search for this proactively, and can rely on the clients' own representations. As revealed by the first hits when you Google "IMBRA," the law has many enemies, most obviously the marriage broker companies and the users of their services. Michael Schmitt (aka michaellovesnyc) even started a website ( and was pulled into a Wikipedia edit war over his claim that the law is killing Russian women because it impedes them from marrying Americans, which is necessary because of the shortage of Russian men and Russian men's propensity toward abuse. The only area of agreement I could find with Mr. Schmitt is that the government oughtn't make inflated claims about the level of human trafficking occurring in the U.S., and shouldn't hand out funding to organizations based on such hyping.

TIME magazine highlights what might be considered the reverse of a mail-order bride problem: the leave-her-abroad problem. The ills that IMBRA addresses occur when Americans bring foreigners to the U.S. as fiance(e)s, and then either don't marry them here (which makes the foreigners subject to deportation) or marry them and then abuse them. Moreover, the stereotypical mail order bride is assumed to be of a different culture than her husband, and to be particularly vulnerable because of her unfamiliarity with American law and custom. In contrast, the article focuses on immigrant men who travel back to their country of origin, marry in that nation, and then fail to arrange for their brides' arrival in their adopted country. In India, this has been a concern in both the Hindu (driven by the desire to pick up a dowry without having to bring home a wife) and Muslim (often emigrant workers to the Middle East) communities.

One way to deter such abandonments would be for the Indian government to punish marriage fraud domestically with imprisonment for a year and a day, which would subsume the offense under the existing extradition treaty with the U.S. instead of requiring a new treaty or amendment for this particular crime. Given the harm done to such abandoned wives and their families -- although because dowry payments are technically illegal, such monies have to be treated as gifts with no marital strings attached -- 366 days in prison doesn't strike me as an excessive punishment.

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