Date based archive De Novo: July 2004 Archives

July 31, 2004

Today / July 31

Happy 61st birthday to William Bennett, former U.S. Secretary of Education and drug czar.

Posted by PG at 02:38 PM | Comments (0) | TrackBack

July 30, 2004

Survivor: Blogosphere


The Smoking Gun has uncovered a videotape of Milbarge hacking into our servers and changing his readership numbers. As that violates Rule 12.3(a) of our contest bylaws, we unfortunately have no choice but to disqualify Milbarge from the competition. Thus, Wings & Vodka emerges as the champion, and he will be sticking around to blog with us for the rest of the summer. Congratulations.

And a special thank you to all who participated in Survivor, whether as contestants, commenters or readers. We'll do it again, but not too soon.

Posted by Announcement at 02:29 PM | Comments (2) | TrackBack

Compensation Confusion

When I read this AP piece in the Houston Chronicle, I was outraged. The state just gives alleged crime victims money? in amounts like $20,000 for sexual assault? Perhaps people ought to receive monetary compensation without having to pursue a civil trial (particularly against defendants without financial resources), but shouldn't they have to prove their allegation first?

Defense attorney Pamela Mackey certainly put it in an ugly light, saying that the accuser "has profited to an enormous amount, $20,000. I would suspect to most people in this county is a lot of money, most of our jurors, and she has done that on the basis of a false allegation and has persisted in that false allegation."

Then I read the longer, updated AP piece from MSNBC.

The state Victims' Compensation Fund is financed with fees paid by people convicted of crimes. It is used to cover crime victims' medical and mental health treatment, funeral or burial costs and other related needs. State law caps overall compensation to $20,000 for any single victim or victim’s dependents.

Karen Steinhauser, a former prosecutor and visiting professor at the University of Denver law school, said she doesn't believe compensation funds have ever been an incentive for somebody to lie to obtain services.

"If someone were physically injured and required surgery or had to get new glasses or get new locks on their doors, compensation would go to help with that," Steinhauser said. "The fact that her injuries may be more psychological shouldn’t make it so that this now gets used against her."

Of course, this makes the money sound very different. It's one thing to receive something like a windfall from the crime lottery, to spend on any frivolity; it's quite another to receive state aid in restoring home, health or peace of mind after suffering an assault. If Bryant's accuser cannot succeed in proving her case, even in the lower-standard-of-proof civil courts, she ought to have psychological therapy, whether it helps her survive the assault or (if the assault did not occur) helps her realize that her complaint was not legally true.

I mostly avoid the news about celebrity trials and missing white females, despite their popularity in the media, because these stories rarely mean anything. The drug addiction of Robert Downey Jr., the murder of Jon Benet Ramsay, are merely unfortunate, not important; for outsiders, they have little or no lasting significance.

O.J. Simpson's trial was interesting mainly because of the judge's loss of control -- a mistake that District Judge Terry Ruckriegle, who presides over the Bryant trial, seems to be repeating.

District Judge Terry Ruckriegle released a partial transcript of the closed-door hearing after being pressured by the Colorado Supreme Court and U.S. Supreme Court Justice Stephen Breyer to settle a First Amendment fight with the media. A transcript of closed hearings on June 21-22 was mistakenly e-mailed to seven media organizations, including The Associated Press. All held off on publishing the contents while they challenged a contempt of court threat from the judge.

Ruckriegle did not release the June 21 transcript in its entirety and no details at all from the June 22 hearing, which focused on the accuser’s sexual activities around the time of her encounter with the Los Angeles Lakers star.

A sealed filing in the case also was mistakenly released Wednesday. The order, which included the accuser’s name, appeared on a Web site where public filings are posted as a convenience to court staff and the media.

Yes, the day has come when we see "Kobe Bryant" and "Stephen Breyer" in the same news stories.

Posted by PG at 05:54 AM | Comments (1) | TrackBack

Once Again, It's On


so, uh, the Clerk is baiting you on another child pornography case... the girls are from my high school. That judge gave us the "drive carefully, or I'll keep you from driving until you're 18" speech when we all received our licenses. Sigh.
Clerk's words:
Earlier this year PG of De Novo and I had a bit of debate about child pornography charges lodged against a teenage girl for photographs that she took of herself. I think such charges are likely illegal, while PG seems to think otherwise. Now I see yet another instance of such prosecution has arisen.

Clarification: In both the case previously examined (Latrobe), and in this new one (Roanoke), I oppose charging the teenagers who photographed themselves nude with production and possession of child pornography. I explained why in my De Novo post.

A primary justification for charging the Latrobe girl with dissemination is that she did it so indiscriminately, sending pictures to people she met through chatrooms. This presumably is how her offense was discovered: either a law enforcement agent lurking online got her to send a picture, or her photos were found in the child pornography cache of someone who got caught in a different case. She therefore made it likely that someone to whom she sent the pictures was an unknowing and thus unwilling recipient of child pornography, instead of legal adult pornography.

The dissemination facts in the Roanoke case are very different. These two girls took topless photos of themselves and sent them to their boyfriends. The initial and intended recipients of the pornography were themselves minors (I assume from their being high school students, and not being prosecuted as adults would be), and knew that the people depicted in the photos were not adults.

The boys decided to forward the pictures to all and sundry; they even appeared on Internet pornography sites until one girl's mother discovered this and informed the websites that the photos were of minors, at which point the photos were removed. Had the boys kept the photos to themselves, they never would have been discovered unless the boys got caught in a separate case and their computers were seized.

I agree with the Clerk that prosecution of two young women who sent child pornography only to knowing recipients, and who did not intend their pictures to be widely viewed, is wrong. An issue that he does not address, however, is the prosecution -- or rather, lack thereof -- of the girls' boyfriends. (Curmudgeonly commenter "Ken" does note this disparity.)

According to the news story, "Only one boy who received the pictures was charged with possession of child pornography. That charge was taken under advisement in May and will be dismissed if he stays out of trouble."

I have trouble not seeing this as an example of sexist prosecution. Charging the girls for being dumb enough to trust their boyfriends, while essentially letting the boys off for having turned their girlfriends into internet pinups, is a complete misdirection of blame. The pornography had no potential to do harm when it was a private matter between two girls and their boyfriends, but once it began to be circulated publicly, the likelihood of trouble increased -- with its most obvious manifestation in the ability of law enforcement to have discovered the photos.

But consider the other consequences. Every person who has those pictures on his computer may now be charged with possession of child pornography, even if he is unaware that the persons depicted are minors. The girls who produced the photographs didn't cause this; the boys did.

Conclusion: The Clerk and I reach essentially the same result in this case (the girls should not be prosecuted), but for different reasons. I think we are both being consistent.

Paralleling child pornography to statutory rape, the Clerk sees no reason why the minor involved in the former should be subject to prosecution, while the minor involved in the latter is not. He gives a good reason for why statutory rape victims should be free of the fear of prosecution: "By criminalizing the conduct of the victim of the crime, the state may discourage future victims less willing to come forward."

As I said in comments to my earlier post, as long as adults are prosecuted on a strict liability basis for mistaking children to be adults, children should bear responsibility for having done their best to appear as adults. A statutory rape "victim" who produced fake identification and otherwise went to some effort to convince her partner that she was an adult is hardly likely to come forward about the crime (unless she does so for reasons of vengeance), any more than a high school boy buying liquor with a fake ID is likely to turn in the retailer he successfully fooled.

Simply because minors are never prosecuted in statutory rape cases, no matter how much they deceived their "abusers," is not a justification for extending this injustice to child pornography cases. On the other hand, minors who did not, whether through action (fake IDs) or negligence (failing to notify), mislead others into mistaking their ages should not be held responsible for any crime, which is why I disagree with the decision to prosecute the Roanoke girls.

Posted by PG at 12:51 AM | Comments (1) | TrackBack

July 29, 2004

Today / June 30

Today in History (1971) - The 26th Amendment to the U.S. Constitution, lowering the voting age to 18, ratified as Ohio became the 38th state to approve it.

Posted by PG at 11:12 PM | Comments (0) | TrackBack

Today / July 29

Happy 32nd birthday to blogger and actor Wil Wheaton.

Posted by PG at 03:09 PM | Comments (0) | TrackBack

July 28, 2004

This Use is Fair Use

Regarding this amusing parody of the song "This Land is Your Land," and the unjust, if legally warranted lawsuit against it, I think Professor Volokh gets the fair use analysis completely wrong:

    The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.

JibJab's work does far more than "partly comment[] on the song." It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that "this land" isn't really the land of Native American's anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.

Does Volokh expect JibJab's work to convey scholarly commentary? Perhaps a refresher on Campbell v. Acuff-Rose is in order. Defendants, 2 Live Crew, parodied "Oh, Pretty Woman" with these lyrics (excerpted):

    Big hairy woman you need to shave that stuff
    Big hairy woman you know I bet it's tough
    Big hairy woman all that hair it ain't legit
    Cause you look like "Cousin It"
    Big hairy woman

    Bald headed woman girl your hair won't grow
    Bald headed woman you got a teeny weeny afro
    Bald headed woman you know your hair could look nice
    Bald headed woman first you got to roll it with rice
    Bald headed woman here, let me get this hunk of biz for ya
    Ya know what I'm saying you look better than rice a roni
    Oh bald headed woman

    Big hairy woman come on in
    And don't forget your bald headed friend Hey pretty woman let the boys Jump in

    Two timin' woman girl you know you ain't right
    Two timin' woman you's out with my boy last night
    Two timin' woman that takes a load off my mind
    Two timin' woman now I know the baby ain't mine
    Oh, two timin' woman Oh pretty woman

Is that commentary? Commentary enough, said the Supreme Court:

    While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works

This passage ought to make you laugh. If the Supreme Court is willing to parody itself in order to find critical commentary in this, a song written by 2 Live Crew, surely JibJab's work is on much safer ground. Go see for yourself.

Posted by Nick Morgan at 10:27 PM | Comments (5) | TrackBack

Dahlia & The Dems

Like most of the people watching the Democratic convention, Slate correspondent Dahlia Lithwick is chiefly occupied with critiquing everything they're doing wrong. Her first dispatch mostly just mocked the onanistic coverage and bipolar rhetoric, but the end of the article revealed a more urgent concern:

My overwhelming memory of the GOP Convention four years ago was of the harnessed, focused, laserlike energy of suppressed Republican rage. I keep hearing about the rage of the Democrats, but I can't find it here; with the exception of Michael Moore, who is whirling around like the Tasmanian Devil in a baseball cap.
Words like "Abu Ghraib" and "Guantanamo" and "torture memo" are choked back until your head hurts. I, for one, am not "terrified, yet braced- for- the- challenges." I am "terrified, yet petrified." I am "frightened, yet sickened." Today, I hit the streets of Boston in hopes of hearing that speech.

Today's report from the frontlines makes this thought more explicit:

I keep thinking that one speaker at this convention needs to stand up at that podium tonight and say: "Ladies and Gentlemen. Abu Ghraib. Thank you. Goodnight." Because shouldn't this election ultimately be a referendum on the rule of law? Shouldn't the only issue before us be whether or not there will be legal constraints on executive power? Walter Dellinger, former acting solicitor general under Bill Clinton and star Slate contributor, puts this far more eloquently when he warns that if we don't cast our votes about Guantanamo, and Abu Ghraib and those torture memos, we will someday look back on this election as emblematic of a national moral failure.

What is at stake, in this election, is whether we value the notion of being a nation that's ruled by law as opposed to rulers. This isn't just a voting issue. It's what used to launch revolutions.

Unfortunately, Lithwich and other lawyers consistently overestimate the level of interest that voters have in "the rule of law," which for most people is fairly abstract in its constitutional sense. We see the need for "law'n'order," because we don't like getting mugged, but we demand limits on executive power only when it is clearly out of control. The average American can get het up over obvious outrages like Watergate and Abu Ghraib (hence the resignation and apologies that followed from those scandals), we're a lot more ambiguous about the rights of detainees in the war on terrorism, or the limits on what we will do to protect ourselves from another 9/11.

Even if people did take a greater interest in issues that aren't directly related to their physiological and safety needs, I doubt the Democrats' ability to stake their fortunes on the simple invocation of Abu Ghraib and other excesses in the war on terrorism and the occupation of Iraq. The Bush Administration already has declared that Abu Ghraib happened entirely without official support; they have framed the torture as a freakish outlier, due to bad apples rather than bad policy or a bad human rights attitude at the Pentagon.

Can John Kerry promise that he will grant trials or release to every Gitmo detainee? or that his administration will never, in any circumstance, use pressures that can be described as torturous -- even if they think it would provide crucial intelligence?

Lithwick also argues, "For one thing, if you cared about gay marriage, or abortion, or the right to die, or civil liberties, as much as they say you do, almost nothing else matters but who's on the federal bench." But the hardcore single issue voters that Lithwick describes already do vote on this basis.

Sue Hodges is opposed to U.S. involvement in Iraq and is dissatisfied with the Bush administration's handling of the U.S. economy. So you might predict she'd cast her ballot for John Kerry in the presidential race this year. But that is not likely, she said.
"I'm really opposed to what we're doing in Iraq, but at the same time I support the right to life and am very against abortion, so it's a hard decision," said Hodges, as she loaded groceries into her car in St. Louis, Missouri, where she lives. [...]
As many as 41 percent of Americans who want greater limits on abortions say they would not vote for a candidate who disagrees with this position, even if they agree with the candidate on most other issues, according to the Pew Research Center for the People and the Press.
I would like for the Democrats to move the abortion debate from "legal or illegal" to "common or rare," but they don't seem to be planning such initiatives. So voters are left to make the determination of which candidate will reduce abortion by the judges whom each will appoint to retain its legality.

Even on gay marriage, conservative homosexuals seem prepared to concede an issue so close to home and vote Republican -- some because they aren't interested in it, some because they don't want judges to decide it, some (like Andrew Sullivan) because they are ready to wait through the backlash.

In short, I don't think Americans are missing the link between the presidents they elect and the judges those presidents will appoint. But those of us who really care already vote on that basis, and the rest of us are more worried about a president's ability to fight terrorism and not screw up the economy than we are about his appointing judges in the mold of Scalia or of Ginsburg.

Posted by PG at 07:29 PM | Comments (3) | TrackBack

July 27, 2004

Today / July 28

By Queen Elizabeth II's proclamation, July 28 is a day of commemoration for the ethnic cleansing of Acadians -- but only for Canada, the country from which they were deported, not for Britain, which committed the expulsion.

Posted by PG at 06:02 PM | Comments (0) | TrackBack

The Democratic Convention: Night 1 Recap

I didn't actually see any of the convention coverage last night. But blessed with the New York Times full-text of the convention speeches, I can relive it this morning, and pass along the highlights, as I see them.

Al Gore:

"I’m going to be candid with you... sheep... especially my beloved partner in life... BeBe Winans...."

OK, I know, stringing together non-sequiters with ellipses is a cheap joke, and is only marginally amusing. What you really want is sharp, incisive political commentary. Sorry. But I can at least try to excerpt the meat of the speech and insert some semi-coherent comments in italics.

"I sincerely ask those watching at home tonight who supported President Bush four years ago" Um, are any of those people actually watching? Their convention is still a month away... "did you really get what you expected from the candidate you voted for? Is our country more united today? Or more divided? Has the promise of compassionate conservatism been fulfilled? Or do those words now ring hollow?

"By the way, I know about the bad economy. I was the first one laid off." I don't think that's a very satisfying one-liner. On the surface, maybe it gets a laugh. But think about it. The former Vice President did not have too much trouble finding a new gig after he lost the election -- he taught at Columbia, he gets paid to give speeches... and he wasn't really laid off, his term was over. I'm taking it too literally, but it's just a silly throwaway comment that, to me, sounds a little bit callous to the people actually laid off. Al Gore doesn't know about the bad economy. Al Gore is doing just fine.

"Are you troubled by the erosion of America’s most basic civil liberties? Are you worried that our environmental laws are being weakened and dismantled to allow vast increases in pollution that are contributing to a global climate crisis?" I love the way he uses the word "erosion" in the question just preceding the environmental one. He's priming the audience to think about the environment. I seriously bet that was intentional. Beautiful work, Al Gore Speechwriters.

Jimmy Carter:

I've got nothing much to say about this one, except that one line gave me pause: "When our national security requires military action, John Kerry has already proven, in Vietnam, that he will not hesitate to act." My question is whether John Kerry's behavior in Vietnam really says as much about how he will act as commander-in-chief as people may want to ascribe to it. I don't know. And I don't say this to make any statement about John Kerry -- but is someone's military service thirty years ago a good indicator of how they would use the military as President now? Maybe it is. But it's not obvious to me that it most certainly would be.

Hillary Clinton:

"[T]onight I have the pleasure of introducing the last great Democratic president..." Yes, I know what she means. "Last" = "most recent" here. But on first read, I saw it as "last" as in "there will be no more afterwards." I'm sure that wasn't the intent. But did anyone else read or hear it that way too?

"He will create good jobs, not lose them." Someone, and I wish I could remember who (it may have been a law professor, actually -- but I really can't remember at all), once told me that I should flinch whenever I read something like that. So I flinched, and I will present the argument I was told (in other words, don't blame me if this is poorly reasoned... I'm stealing it). How can a President create a job? He can strive to put policies in place and hope that businesses are able to flourish and grow and add new jobs, but the only job the President can create is "assistant to the President."

"But being a senator from New York, I saw firsthand -- (cheers, applause)" Yay, firsthand! Not secondhand! Firsthand! Wheeee!

"I've been saying for many months now John Kerry is a serious man for a serious job in a serious time in our country's history." Seriously?

And, finally, Bill Clinton:

"Not a single American on September the 12th, 2001 cared who won the next presidential election." Is that really true? Might there have been one? Maybe even his wife?

"They chose to protect my tax cut while cutting 140,000 unemployed workers out of their job- training programs, 100,000 working families out of their child-care assistance, and worst of all, while cutting 300,000 poor children out of their after-school programs when we know it keeps them off the streets, out of trouble, in school learning, going to college and having a good life!" After-school programs enable children to *have a good life*? I'm all for after-school programs, but I'm inclined to think that may be a stretch.

His speech looks pretty good. That's all I've got.

Posted by Jeremy Blachman at 11:31 AM | Comments (1) | TrackBack

July 26, 2004

Adult Reading

A friend who enjoys perverse Americana sent me to a website with "lesbian" paperback artwork from 1950s and '60s pulp fiction. Lust on the Run ("He forgot his tramp wife in a depraved love-nest"), by Josh Tithing, sold for 95 cents -- but only to adults. The frontal nudity on the cover is obscured by "Adults Only" and "Sale to Minors Forbidden" warnings.

While movies, music and magazines frequently bear similar cautions, with legislatures enforcing them by statute, I've never seen a book in a bookstore that had even a "parental advisory" sticker. Romance novel fansites will rate books for the level of sexual content, but this information must be sought out; it does not appear on the cover of explicit works.

Texas, like most states, prohibits the sale, distribution or display of harmful material to a minor, with the standard definitions of those term (although I didn't know that prurient interest in excretion was so widespread as to have been noticed by the Legislature). "Harmful material" is distinguished from banned obscenity by the specification that it be "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and utterly without redeeming social value for minors." These definitions imply that materials can be legal for adults but illegal for children.

In order to be prosecuted, the seller must know that the material is harmful, which poses something of a problem regarding the vast majority of books. Movies are rated, magazines shrink-wrapped, CDs labelled, but I don't know of any voluntary or statutorily-required system that warns librarians or booksellers away from pornographic books.

The warnings on the cover of those lesbian paperbacks likely served the same dual function that "R" ratings now do: yes, this material is inappropriate for children, but that just proves how enticing it will be for adults (and minors who get past the restriction).

Posted by PG at 06:59 PM | Comments (0) | TrackBack

July 25, 2004

Today / July 26

Today in Federal Bureaucracy History (1908) - U.S. Attorney General Charles Joseph Bonaparte issues an order to immediately staff the Office of the Chief Examiner (later renamed the Federal Bureau of Investigation). Thirty nine years later, President Harry S. Truman signs the National Security Act into law, creating the Central Intelligence Agency, Department of Defense (formerly War), Joint Chiefs of Staff and the National Security Council.

Posted by PG at 11:46 PM | Comments (0) | TrackBack

July 23, 2004

Today / July 23

Happy birthdays to the following hotties: Ninth Circuit judge Alex Kozinski (54), bluegrass artist Alison Krauss (33), former intern Monica Lewinsky (31) and Harry Potter actor Daniel Radcliffe (15). Alas, Radcliffe is underage and the rest are too female or married for me.

Posted by PG at 01:01 AM | Comments (0) | TrackBack

Heart of the Matter

I entirely agree with Prof. Kerr's comment here regarding the accuracy of the ACLU Flash movie's depiction of a Matrixed America. In accordance with their customary practices, the ACLU is freaking out somewhat disproportionately to the actual problem. The information displayed in the Flash film is unlikely to be gathered by the government.

However, the crux of the ACLU's concern with the Matrix program -- the sentiment behind the cartoon -- remains: the sharing of information between private sector entities and the government. There was and is similar concern about the sharing of information between terrorism-preventing departments and "regular" law enforcement.

While many Americans may be puzzled as to why this would be problematic -- why shouldn't the government know my credit rating? my future landlord does -- the ACLU appears to be concerned that this represents a step down the (you knew it was coming) slippery slope of information flow between commercial entities and public authorities. After all, if Sam's Club sent the receipts of purchases made with "business expense" cards to the IRS, I suspect the latter could nab a lot more people for improper tax accounting. Which brings up a consistent theme of the ACLU's response to the expansion of government powers and programs post-9/11, that all such expansions must have a strict relation to the prevention of a terrorist event, and not be utilized to catch non-terrorist criminals.

Posted by PG at 12:43 AM | Comments (5) | TrackBack

July 22, 2004

My Name is Wings&Vodka, and I Approved This Message

The best part about being in Vegas for a few days (aside from the 107-degree heat, which is just awesome…I think my pancreas melted this afternoon) is that I actually get to see some campaign ads. Texas having been marked down for Bush a long time ago (an out-of-date assumption in my book, given our Hispanic population—but that’s another post) we really only get campaign ads when they’re part of a national buy, and since I mainly watch Bravo and the Style Channel, I have to go out of state to see any good TV spots. This is a shame because, as a law student with the soul of an advertising copywriter (and the portfolio of an advertising copywriter, the degree of an advertising copywriter…and, let’s face it, the legal knowledge and skill of an advertising copywriter), I take a special sort of joy in watching what the policom outfits churn out for election season. It’s never good from a creative standpoint, and it’s usually misleading from a factual standpoint, but that doesn’t mean it’s not perfect from a popcorn-munching, hand-me-my-Fanta, who-stole-the-last-Bon-Bon standpoint.

This week, Kerry is being hammered for his shoddy attendance record in the Senate. The Bush ad claims that during the campaign, Kerry has missed nearly two-thirds of all Senate votes. This seemed a bit extreme to me, so I did a small amount of research and found that the ads are, well, totally correct: Kerry has been present for almost exactly 33% of Senate votes for the current session.

This is, of course, one of the problems of running for president as a senator. While President Bush has often cited the fact that he can still get a lot of work done outside of Washington, he benefits from the fact that nobody is ever taking formal attendance in the Oval Office. So, in order for Kerry to keep up with Bush on the campaign trail, he has to play a bit of hooky once in awhile. Big deal, right? Surely everybody does it during an election year, don’t they?

Hoping to confirm that, I asked the age-old question: What Would Bob Dole Do? I figured that he must have been similarly absent during the 1996 campaign, seeing as how he was older than Kerry and would have had trouble making it back and forth to Washington as frequently. But Viagra Bob surprised me. I didn’t check every single vote (after looking thru all of Kerry’s, my mouse finger started to cramp), but a thorough day-by-day spot check suggests that Dole was present for virtually every vote in 1996, up until June when he gave up his seat. What a guy. Of course, he lost that election; maybe if he’d ditched a few more votes that spring he could have pulled off a victory. But either way, his diligence eliminated the chance of a favorable comparison for Kerry.

Basically, this sort of attack is irrefutable for Kerry. The common sense answer is “Well, I was campaigning.” But since it’s a definite no-no for candidates to admit that they’re also politicians, that’s not really an option. It’s the equivalent of asking him “Yes or No: Do you still have sex with chickens?” He’s screwed either way.

The only real solution is to go negative in return, to attack Bush’s relaxed work ethic and show him partying it up at fundraisers. But the Democrats won’t do that, because it wouldn’t be polite. Instead, they’ll continue to run single-shot ads of a pasty-looking Kerry talking about national security, all the while letting Rove & Co. beat Kerry over the head with his own war record and smack him around with silly ideas about a gas tax that he floated twenty years ago.

Go Team.


Posted by Wings&Vodka at 07:07 PM | Comments (3) | TrackBack

Survivor: The Final Challenge

Milbarge and Wings & Vodka are the final two challengers in the enormously successful Survivor: Blogosphere!

As the final challenge, we ask the two of you to write for the next week on the topics of law, politics, law students, lawyers, or any appropriately related topic, with the judge and points being awarded by the rest of the blogosphere.

The winner will be chosen basen on links obtained, with bonus points to be obtained by receiving links from:

* The guy who started it all: Unlearned Hand (2 points).
* Our role models: Volokh, Crescat, or Crooked Timber (3 points).
* The blawg-o-rific: Instapundit or Howard (5 points).

It's Thursday afternoon . . . next Friday, we will announce the winner.

Posted by Chris Geidner at 01:21 PM | Comments (2) | TrackBack

July 21, 2004

Uh, Professor Kerr, Sir...

Volokh Conspirator Orin Kerr likes a new Flash, but he seems to have missed its point:

[T]here is something a bit fishy about the movie in the context of the ACLU's campaign: it seems that everything in the movie involves private-sector information gathering, and yet the "action" that the ACLU prompts you to take appears to be focused primarily on government datamining. Based on the ACLU website, it seems that the primary goal of the ACLU's campaign is to defund the MATRIX law enforcement database. Maybe I'm missing something, but it's not obvious to me what the connection is between MATRIX and what the pizza guy knows about you. Private-sector information gathering is quite different from government datamining: the former concerns restrictions on private parties obtaining information, and the latter concerns government agencies sharing and looking through the information that they have already obtained. I guess MATRIX didn't lend itself to a funny movie.

According to the ACLU page linked,

Matrix (which stands for "Multistate Anti-Terrorism Information Exchange") is an effort to combine state government records, such as driver’s license information, with commercially available data to create a vast database capable of compiling and analyzing a profile of every American [... G]iven the amount of information that is available in today's commercial databases, even more details of your private life might be captured and catalogued. Indeed, the Matrix materials boast of having access to 20 billion records.
The ACLU appears to fear that the government and the GAP will share information, a la Minority Report, in a future where such cooperation is supposed to help the citizen-consumer but actually aids the authorities in tracking down Tom Cruise's eyeballs.

Posted by PG at 06:09 PM | Comments (4) | TrackBack

Canadian Contraband

(Via Sandefur) Ninth Circuit judge Andrew Kleinfeld and his wife Judith have an article in Opinion Journal and the American Enterprise Magazine comparing American and Canadian cultures. One statement in the piece puzzled me:

We asked one of the Canadian border guards what Hyderites were like. "Free spirits. Wild. They have guns, you know." We were asked if we had any guns each time we drove back to Stewart, since handguns (a near-universal in Alaskan bear country) are contraband in Canada.

I mistakenly thought that Judge Kleinfeld was saying that handguns, so common in Alaska, were illegal in Canada. This confused me, because one of the main themes of Bowling for Columbine is that Canadians somehow manage to own lots of guns without having a crime rate similar to that of the U.S.; therefore our crime problem has more to do with a culture of fear -- supposedly evidenced by our using locks, in contrast to our open-doored northern neighbors -- than with gun ownership.

Of course, Kleinfeld meant contraband in its stricter definition, i.e. "goods prohibited from being imported or exported." (Contraband per se is property that is in and of itself unlawful to possess, produce, or transport; derivative contraband is property that is unlawful because it is used in committing an unlawful act.) Handguns with barrels less than 4.14 in. long, other firearms with barrels less than 18 in. long and all automatics cannot be brought into Canada.

However, "[t]ravellers can bring a non-restricted firearm, such as a sporting rifle or a shotgun to Canada for hunting purposes, for use in competitions, as part of an in-transit movement through Canada, or for protection against wildlife in remote areas," provided that they declare this weapon. Whether a handgun -- as opposed to a hunting rifle -- is an ideal weapon against an Alaskan bear, I cannot say.

In the U.S., a citizen bringing in a gun she owned in the U.S. must show her proof of prior ownership to customs when she lands in the States. If she acquires a firearm that someone else brought from the U.S., or if she buys one abroad, she will have to obtain an import permit from the Bureau of Alcohol, Tobacco and Firearms.

Posted by PG at 05:26 PM | Comments (3) | TrackBack

Today / July 21

Today in History (1984) - In Jackson, Michigan, a factory robot crushes a worker against a safety bar in apparently the first robot-related death in the United States. However, the robot did not eat anyone's blood-pressure medication.

Posted by PG at 12:56 PM | Comments (1) | TrackBack

July 20, 2004

What in Tarnation...?

From PFAW:

Right-wing House members are trying to whip up a backlash against last week's Senate defeat for the Federal Marriage Amendment. So they're promising a vote this week on the so-called "Marriage Protection Act," which attacks the right of gay men, lesbians, and every other American to challenge the discriminatory 1996 "Defense of Marriage Act" (DOMA) in federal court. [...]

In technical terms, the Marriage Protection Act would strip the federal courts of jurisdiction to consider citizens' legal challenges to DOMA's "full faith and credit" provision. That provision tries to "protect" each state from having to recognize the marriage of same-sex couples lawfully performed in other states despite the Full Faith and Credit clause of the U.S. Constitution.

I am now forced to confess my complete ignorance of constitutional law, because I had no idea that Congress could protect itself from judicial review merely by passing a law that said federal courts lacked jurisdiction over a particular statute.

The rationale behind denying federal jurisdiction to the "full faith and credit" provision is obvious: because that provision deals with the states' interactions with one another, and is the patently unconstitutional aspect of DOMA, conservatives hope to preserve it by restricting any suits dealing with it to state courts.

So the scenario goes something like this: Jane and Sue get married in Boston and move to Crawford. Texas, of course, does not recognize their marriage. They sue to receive the same rights and benefits granted as a matter of course to, say, J. Howard Marshall and Anna Nicole Smith.

Article 1, Section 3a of the Texas Constitution does say that "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative." Jane could try suing in state courts for her equal right, regardless of sex, to marry Sue.

But she's already gotten married to Sue, so she opts instead to sue under the U.S. Constitution's Article 4, Section 1 guarantee that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

Now those of you actually in law school will have to help me out. Do state courts take lawsuits based in the federal constitution? Isn't dealing with federal law the whole point of a federal court system?

Posted by PG at 07:40 PM | Comments (10) | TrackBack

The Verdict

Our mysterious guest blogger has rendered his verdict on the fisking competition.

Because Mike Mills dropped out, once again no one is eliminated. Yeah, we're a tease. This endeavor gives me new respect for reality show producers, or at least the ones who stick to the rules (which, I guess, excludes all of them -- uh, you have kids?! an arrest record?! the challenge was rigged?! you didn't know we had a wild card?! you didn't know we'd merge so soon?! you didn't know it wasn't live?! you didn't know the producers were consulted on every decision?!). Stay tuned for information about the final challenge... as soon as we... invent... it.

Posted by Jeremy Blachman at 07:12 PM | Comments (1) | TrackBack

Not That I Wanted Him Beheaded

But I have to say that the release of truck driver Angelo de la Cruz, the Filipino hostage held pending the withdrawal of his country's forces from Iraq, sort of upsets my assumptions about the insurgents. I figured that if Manila acceded to their demands, they would just kill Cruz anyway. I had thought the same about Egyptian truck driver Muhammad al-Gharabawi, whose captors threatened to behead him unless his Saudi employer pulled out of Iraq. But when the company complied, the hostage was released.

Actually following through on their promises makes the insurgents a more difficult opponent for the Iraqi government and coalition forces to surmount, because now the insurgents have the status of quasi-reasonable people. Obviously, kidnapping truck drivers is not really a fair tactic to use in the pursuit of one's goals, but apparently it is having some success for those who wish to undermine the new government.

Posted by PG at 01:47 PM | Comments (5) | TrackBack

Today / July 20

Today in History (1982) - The Irish Republican Army detonates two bombs in central London, killing eight soldiers, wounding forty-seven people and leading to the deaths of seven horses.

Posted by PG at 01:34 PM | Comments (0) | TrackBack

July 19, 2004

Today / July 19

Today in History (1979) - The Sandinista rebels overthrow the US-backed dictatorship of the Samoza family in Nicaragua.

Posted by PG at 11:09 AM | Comments (0) | TrackBack

July 17, 2004

WingsandVodka: How to Talk to a Treasonous Slandermonger (If You Must)

Though I didn’t find it necessary to loosely interpret “well-known” in order to find a target, I did have to get flexible with the term “blogger.” I knew that if I was going to spend the better part of an afternoon combing thru someone’s prose, it would have to be the prose of someone I truly adore. And nobody makes my heart skip a beat like the lovely and talented Ann Coulter.

In her weekly web column from July 7th, the best-selling author/talk-show circuit diva/part-time lingerie model attacks Kerry’s choice of Edwards to ride shotgun this fall. She begins:

I guess with John Kerry's choice of John Edwards as his running mate, he really does want to stand up for all Americans, from those worth only $60 million to those worth in excess of $800 million.

Cheney and Bush having thrown most of their fundraising banquets with food stamps, I can understand her ire here. But she quickly makes it clear that her problems with Edwards go well beyond his immense richitudiness:

In one of the many stratagems Democrats have developed to avoid telling people what they believe, all Edwards wants to talk about is his cracker-barrel humble origins story. We're supposed to swoon over his "life story," as the flacks say, which apparently consists of the amazing fact that ... his father was a millworker!

This is just jealousy. Given his campaign theme, Bush would give Tom Ridge’s left lung to have a dad that was a mill worker. All we’ve heard for the last six months are constant reaffirmations of Bush’s being in touch with the values of normal, everyday Americans, and Kerry’s being “out of the mainstream.” Now, I think most real liberals would give anything for Kerry and Edwards to be a little bit further out of the so-called mainstream on any number of issues. But Bush started the “I’m A Rich Guy Who’s More Normal Than the Other Rich Guy” competition, and the Democrats are just trying to fight cracker barrels with cracker barrels. Even so, Ann still disapproves:

That's right up there with "Clinton's stepdad was a drunk" and "Ted Kennedy's dad was a womanizing bootlegger" on my inspirational life-stories meter. In fact, I'm immediately renouncing my university degrees and going to work for the post office just to give my future children a shot at having a "life story," should they decide to run for president someday.

Silly Ann. You can’t renounce degrees. Hell, you can’t even have them stripped away by the Patriot Act. You’re stuck being a Michigan grad for life. Sorry.

What is so amazing about Edwards' father being a millworker? That's at least an honorable occupation -- as opposed to being a trial lawyer. True, Edwards made more money than his father did. I assume strippers make more money than their alcoholic fathers who abandoned them did, too. This isn't a story of progress; it's a story of devolution.

This, too, is pretty cheap, and not just because she brings innocent strippers into the mix. I think Republican critics completely misunderstand Edwards’s goal when he brings up his father’s occupation. It’s not that he thinks his dad’s being a mill worker makes his own achievements more impressive or his own story more inspirational. Rather, he brings up his father’s job because he wants to get that embarrassing fact out into the open before the Republicans can use it against him.

I remember once, as a kid, when a few of my friends from elementary school agreed to come over to my house and play, but then promptly decided to leave when they discovered that I didn’t own a Nintendo. Do you have any idea how embarrassing that was? I wet my bed for a week. Imagine if Edwards had invited Bush over to his house and Bush had been like, “Hey, where’s your Dad’s Secret Service detail?” What the hell would Edwards have done then? Well, I’ll tell you what he would have done--he would have peed in his bed. So quit harping on the mill worker thing, okay? He had no choice.

Obviously not wishing to inflame me any further, Coulter moves on to her indictment of Edwards’s legal career:

Despite the overwrought claims of Edwards' dazzling legal skills, winning jury verdicts in personal injury cases has nothing to do with legal talent and everything to do with getting the right cases -- unless "talent" is taken to mean "having absolutely no shame." Edwards specialized in babies with cerebral palsy whom he claimed would have been spared the affliction if only the doctors had immediately performed Caesarean sections. … In one of Edwards' silver-tongued arguments to the jury on behalf of a girl born with cerebral palsy, he claimed he was channeling the unborn baby girl, Jennifer Campbell, who was speaking to the jurors through him: "She said at 3, 'I'm fine.' She said at 4, 'I'm having a little trouble, but I'm doing OK.' Five, she said, 'I'm having problems.' At 5:30, she said, 'I need out.'"

Okay. That’s pretty hideous. Even if I’m not against these tactics for ethical reasons, I’m certainly willing to admit a problem with Edwards on rhetorical grounds. But I’ve got to wonder: Would the criticism of Edwards be any lighter if he’d been defending the doctors? Wouldn’t conservatives just fold it into his pro-choice stance and call him a multi-tasking baby killer? Perhaps it would have been better for him to have avoided malpractice cases altogether and gone to work for a big firm…maybe one working for Enron? Somehow I don’t think that would have helped Edwards escape Coulter’s criticism, either.

The truth is, Ann hates lawyers. She’s a self-loathing attorney, and she’s taking out her frustrations on this poor guy from North Carolina who was just trying to make a buck. I mean, come on. His dad was a mill worker for chrissake. But she refuses to back down:

In addition, the "little guys" Edwards claims to represent are having a lot more trouble finding doctors to deliver their babies these days as obstetricians leave the practice rather than pay malpractice insurance in excess of $100,000 a year.

Well, yes, you could attribute that to a rise in malpractice litigation. But some people might point out that the increase in malpractice insurance rates has significantly outstripped the increase in number and size of malpractice suits. Others might point out that insurer-enforced caps on allowed annual deliveries are the result of actuarial horse hockey. And still others might point out that a nationwide total of annual malpractice jury awards would look pretty meager compared to a nationwide total of annual tax breaks received by insurance companies in BushWorld. But those people are clearly communists.

And may we ask what the pre-born Jennifer Campbell thinks about war with Iraq? North Korea? Marginal tax rates? If Miss Cleo here is going to be a heartbeat away from the presidency, I think the voters are entitled to know that.

If I were Michael Moore, I’d argue that Jennifer Campbell is preferable to, say, the Saudis. But Michael Moore is a fruitbat, so I’ll keep my mouth shut. Ann keeps going:

While making himself fabulously rich by taking a one-third cut of his multimillion-dollar verdicts coaxed out of juries with junk science and maudlin performances, Edwards has the audacity to claim, "I was more than just their lawyer; I cared about them. Their cause was my cause." If he cared so deeply, how about keeping just 10 percent of the multimillion-dollar jury awards, rather than a third? In fact, as long as these Democrats are so eager to raise the taxes of "the rich," how about a 90 percent tax on contingency fees?

You know…you’re right. I’ll see your 90 percent tax on contingency fees, and raise you a 90 percent tax on publishers’ advances. But somehow I don’t think that would go very far in making up for the Bush tax cut. That is, unless your advances have gotten a lot bigger without me noticing. But I’m thinking that if they had you’d be sucking down banana coladas in Cozumel instead of posting weekly on the Web, so maybe we’d better stick with taxing the rich in general.

I guess the thing that confuses me is the focus on Edwards’s pre-political life instead of his six years as a U.S. Senator. As a liberal, I would say that Edwards’s votes for the Patriot Act and the war in Iraq make him a lousy senator; it seems like conservatives could just as easily point to the votes and say that they make him a hypocrite. I’d also point out his bullshit equivocating on the gay marriage issue and say that if he expects the support of the gay community in November, he ought to do a little more than the minimum in order to earn that support. Conservatives could point to his bullshit equivocating and call him an Evil Satanist Homosexual. But that’s not what Coulter’s after, and I don’t blame her. Focusing on Edwards’s actual performance as an elected official forces the same sort of focus on Bush’s performance, and that’s not good for anybody. So, we’ll stick to the past which, I think, can be summed up thusly:

John Edwards was spectacularly successful in the shameless exploitation of disabled babies for financial gain, while George Bush was spectacularly unsuccessful in the shameless exploitation of the environment for financial gain.

The Big Conclusion? It’s simple, really. Disabled babies are more lucrative than oil. Especially when they’re born into a family of mill workers.

See you in November.

Posted by Wings&Vodka at 05:59 PM | Comments (22) | TrackBack

I Get It, But...

Despite being among the "Rawls joke getting set," I think a more-easily-grasped phrase for the phenomenon Orin Kerr describes is "rubber glue-ism." At least among Americans, the insult "I'm rubber and you're glue, and whatever you say bounces off me and sticks to you" has more currency than a formal understanding of Rawls's theory of justice.

I didn't quite understand what Kerr was looking for when his post first appeared, but if John Holbo's assessment of it is correct, then the idea that an opponent's tactics can be both decried and imitated seems to be well encompassed by a childish retort.

Posted by PG at 05:30 PM | TrackBack

Today / July 18

Today in History (1947) - President Harry S. Truman signs the Presidential Succession Act into law which places the Speaker of the House and the Senate President Pro Tempore next in the line of succession after the United States Vice President.

Posted by PG at 12:53 PM | Comments (0) | TrackBack

Today / July 17

Allegedly a holiday called "Yellow Pig's Day" is celebrated by mathematics nerds today. A holiday for law dorks such as the De Novo bloggers remains undeclared.

Posted by PG at 12:50 PM | Comments (0) | TrackBack

Milbarge: Fisking "Survivor," Fisking Fisking

Our task is to fisk. This poses a problem for me, because I am not a fisker. Well, to be honest, I experimented once, but I didn't like it. Besides, I fisked Howard Dean, and I think we all went a little crazy and did things we're ashamed of over Dean, didn't we?

So I did a little soul-searching, and I asked myself, "How did I get here? Where is that large automobile? This is not my beautiful house!" And I decided to fisk this crazy game I've gotten myself into.

It started months ago. And it sounded like a good idea: Play some blogging games and join the happy carnival for the summer! You look at the original concept and wonder where that game went.

We know what you've been thinking: "De Novo is great with four, but imagine how much more awesome it would be with five! Up to 25% more awesome, I'd bet!" We agree, and we want to revolutionize the blogosphere at the same time with the world's first (please don't tell us if we're not) elimination-style blog-contributor search and competition.
I think we're far enough along that I can let the cat out of the bag. It's been done. They have a logo and prizes and everything. Gee, I hope it's not copyrighted or trademarked. Instead of gift certificates and the like, the "winner" here at De Nockoff gets...more posts to write! It's not my quote, but this is like a pie-eating contest where the prize is more pie!

As for the challenges we contestants could expect to face:

Each day,
Well, that went out the window pretty quickly, didn't it?
the contestants will have to fulfill a certain blog-related task -- blog about something you did yesterday; write a post using all 26 letters of the alphabet; find the most interesting newspaper article that no one's read -- or compete for immunity by earning the most comments, the most links, or the fewest unambigously negative reactions from our readers -- and one by one the ranks will thin until there's only one blogger left sitting at his desk posting to De Novo.
The only one of these that has come to fruition is the most comments challenge (more on that later). But note how well these proposed challenges fit with the unique nature of blogs. Every time you visit a blog, you want to see something new. Even if these challenges would not have led to long posts ("The quick brown fox jumped over the lazy dogs" satisfies the alphabet task), it would have led to a lot of them. Instead of a torrent, however, you got a trickle.

I thought this sounded fun. I liked reading De Novo, and I figured it would be fun to branch out and try something new. Plus, I thought it might be a nice little boost of publicity for my regular blog. So I applied. Jeremy later told me my letter was the longest they got, so no matter how things go from here on out, at least I've won something.

Anyway, a month passed. Apparently, when they said it would be a "summer" thing, they meant post-June 21, rather than the traditional Memorial Day kickoff or the start of their summer breaks. But I'm sure I could have been more productive at work in June if I had not been hitting "refresh" every ten minutes, waiting for the green light.

Finally, the day arrived:

We promised, and now for weeks we haven't delivered. But the best things in life are worth the wait (and come in small packages, but that doesn't really apply here, unless you're reading this on a laptop). And so, today, we are pleased to provide our waiting-on-the-edge-of-your-seats audience with a competition never before seen (if it has already been seen, please don't tell us and spoil the delusion) on the Internet, anywhere.
I've already spoiled the never-before-seen delusion, so I'll just skip ahead.
TEN (or perhaps fewer, if some of them have bailed on us) brave men and women have declared themselves up to the challenge of outwitting, outposting, and outlasting the competition to become De Novo's first Survivor and get the chance at fame and fortune, or at least as much fame and fortune as we can provide by letting them post with us for the rest of the summer -- and perhaps longer, depending on how it works out.
When I saw this, it looked pretty daunting. Not just "ten," but "TEN" contestants. But notice how the cracks have already started to show. First, the De Novo-ites acknowledge not delivering, and depriving you, the reader, of a month or more of Surviving. Or Survivoring. (See? That's a missed challenge right there: Is it "Surviving" or "Survivoring"? Discuss.) Don't your lives feel a little bit less worth living, knowing how much you missed?

Then, we get the classic bait-and-switch. "Ten (or perhaps fewer, while supplies last, but we'll throw in the undercoating for free....)" But surely, you're thinking, even if they can't be sure no one will falter at the starting gate, these folks have the whole project mapped out, right? Perhaps only with Ike at D-Day had more planning gone into an enterprise of humankind, right? Alas, no:

We've developed a series of bold and unusual challenges, including the challenge of coming up with some bold and unusual challenges. They will begin tomorrow, and continue until the contestant pool has shrunk to just two. Those two will then compete in an ultimate Survivor: Blogosphere final competition that will truly determine who is the real Survivor.

What we need from you, our readership, is some help. On many of the coming days, we may ask for you to vote, either through comments or some other revolutionary hardly-before-seen method (like e-mail, or a Zoomerang poll, but we're still figuring out some last-minute details). Or we may beg you to tell your friends (in fact, the begging begins now: TELL YOUR FRIENDS!). Or, starting today, we may ask you to help us develop some bold and unusual (or just one of the two adjectives, if you prefer) challenges for our contestants. E-MAIL US your ideas for challenges. We will be forever grateful, assuming your ideas aren't really quite terrible. Pretty please.

One assumes that the occasional all-caps are a device to wake up the reader, and if you're still reading this, you probably need them, so I'll let that slide. But a theme is starting to develop: We're making this up as we go along.

After a series of introductions, we found out that of the promised ten, six remained. I can't help wondering what happened to the other four. Was there a secret, pre-Survivor contest readers weren't told about? Did (as many as) four of the six contestants have a multiple-personality disorder? Were their Q-ratings just not high enough? I think that when the DVD of this Survivor season comes out, one of the "extras" should be a discussion of the missing four. I'm sure they're reading this. They know who they are; we want to know as well, so we can congratulate them for being smart enough to bail out at the right time.

At long last, we got our first challenge. As I have previously mentioned, I found its wording a little ambiguous. I won't rehash my confusion here, mainly because I'm sure it was my fault. But it turned out not to matter, because the first challenge was a dry run -- no one was eliminated You can read those entries for yourself and bask in their adequateness. It's becoming apparent that, with nothing on the line, no one really steps up.

Note that it's only after a round of preliminary entries that we finally learn that six was it, although there was still time for new contestants. Imagine if this were a real "reality" show: A guy sits on his couch and watches whatever contests those "Survivor sadists can dream up, says, "I can do better than that!", hops on a plane to Bora Bora or wherever, and joins up. Or imagine a poker game in which you don't know how many people are playing until you've dealt the cards. Not quite the best way to run a railroad.

Then sweeps week arrives and we can finally get down to business. Elimination challenge: poetry. I have to say that I found this to be a very inventive idea, so maybe it stands to reason that none of the De Novo Four thought of it (kidding!). The topic (the Supreme Court) was broad, and so was the resulting range in quality. A few of the poems were quite good, though.

But even in the middle of a pretty good challenge, we see evidence that they really haven't thought through all the possibilities:

Your deadline: Midnight tonight. The method of elimination: Each of the 4 of us (me [Jeremy], PG, Nick, and Chris) will choose one entry to save. Those 4 contestants, and those 4 contestants alone, will move on.
As we discovered in the comments to that post, "Midnight" didn't really mean "midnight" and the one person, one vote principle was somewhat flexible. Plus, we weren't really given any standards. I wasn't looking for a poetry matrix I could plot my stanzas on, but words like "arbitrary and capricious" and "lack of an intelligible principle" come to mind. Anyway, despite a little controversy (which is only natural in such a purely subjective vote), things progressed relatively smoothly and we were left with a final four

Now it was on to the third branch of government, the Congress, and a challenge to write a post that in turn generated comments. The post with the fewest comments by 10:00 the next morning earned its author a trip home. While this seems straightforward, Matto quickly noted the East Coast time zone bias at work. But apparently we forgot about the International Date Line or something, because in a twist that readers would be talking about for literally minutes on end, this challenge was extended by 24 hours. The only explanation we were given was that the move was taken "so that everyone (and all your friends) can comment to keep your favorite blogger in the competition," although there was no hint of disenfranchisement up to this point. (However, I can think of one person who wishes these four with "one day doesn't matter" attitudes were on the Supreme Court.) In the end, the extension had little, if any effect. Wings & Vodka ran away with this one, thus establishing himself as the Smarty Jones of this horse race.

So, after a long wait to get started, and a few hiccoughs along the way, here we are. Our instructions for this task are sparse:

Fisk a well-known blogger. Be snarky but tasteful. Entries will be judged on style and persuasiveness.
If you haven't already figured out what fisking is, it's basically a line-by-line or point-by-point refutation of an author's work, pointing out questionable logic, unsupported arguments, etc.. A classic fisking tends to be snarky if not outright mocking. I'm sure you'll see some fine examples from W&V and Mike Mills.

I had a devil of a time coming up with something to fisk. Think about it: The most easily fiskable articles are emotional rants; of course a careful and measured argument will look more persuasive next to those. But to really give someone a good fisking, the fisker has to have an emotional investment too. The fisker has to get fired up enough about a bad argument that he or she is willing to take it down piece by piece. That kind of commitment is rare for me. Why spend hours poring over a post that drives me batty? In general, why go out and read something just to get mad at it? I want blogging – and blog-reading – to be a pleasurable experience. I do read some sites whose editorial positions I disagree with, but I don't get too agitated about it. For example, I read NRO's The Corner, but I skip over Stanley Kurtz and John Derbyshire, because they're morons, and not worth my time. Why fisk them? I won't give them the pleasure of being fisked. They can go fisk themselves, or fisk each other.

The other thing is that even when I see an article or blog post I could fisk, I don't see any need to tell everyone about all the holes I've spotted in someone's argument. Maybe I just assume that if a hillbilly like me can spot them, anyone can. But mainly that's just not the type of blogger I am.

And when it comes down to it, I guess that's what strikes me as most odd about this whole Survivor deal, and the fisking challenge in particular. I have never been clear on what exactly the De Novo folks are looking for. I sort of assumed they wanted a unique voice, something different than the four of them offered. But now I think one could be forgiven for supposing that they really want a clone. I would wager that the entrants would have been somewhat different if the contest had been advertised as it turned out to be: Half of it is poetry and fisking. If you're not a poet, and not a fisker, why would you sign up for that? Now, I think I'm a decent poet (and a better song parodist), and I think I'm capable of being a decent fisker if I care enough to do it. So I'm going to keep trying, and I'll hang around until they kick me out.

This entry is going to be judged on "style and persuasiveness." I don't know what style the mystery judge is looking for, so I just wrote this in my style. This is how I blog. As for the persuasiveness prong, my contention is simply that this whole competition could have been better organized and managed from start to finish. I hope I've convinced you of that. But I know this is the first time they've done it, and they'll do much better the next time – and I hope there is a next time. I think this is a fun and interesting experiment, and I have enjoyed doing it. I hope that the De Novo crew take this in the spirit in which it's intended (gentle tongue-in-cheek fun), and know that I mean no offense. (I also hope they can fix my font size issues because I suck at the code stuff...sorry.)

My suggestion for future Blogger Survivor contests is to have a sense of what you want to get at the end, that is, what kind of blogger you're looking for. And create challenges designed to produce that person. Maybe you want a poet fisker to add to your stable. If so, I'm sure you'll find one in this bunch. But something tells me, based on all the little points I note above, that you didn't tell yourselves back in May that you wanted to invite a poet fisker to join De Novo. Regardless, I hope that you and whoever wins this thing have a happy union.

If this does turn out to be my last hurrah (and really, at this point, how could it not be?), I have truly enjoyed it. I hope that De Novo readers will follow me back to Begging the Question for more introspection, the occasional law-talking, and I promise: No fiskings.

Posted by Guest Contributor at 03:53 AM | Comments (10) | TrackBack

July 16, 2004

Survivor Challenge

For the penultimate challenge, we considered having our final three contestants attempt to make Tony Rickey change his mind on one of many positions he's taken on gay marriage. But upon realizing that a game called "Survivor" needs at least one person to survive, we preferred the following alternative:

Fisk a well-known blogger. Be snarky but tasteful. Entries will be judged on style and persuasiveness. The judge--another blogger out there somewhere--we be revealed at the time of reckoning.

Interpret "well-known" liberally if you like, and feel free to stick it to Will Baude, who apparently wants a role in the competition....

Posted by Nick Morgan at 12:56 PM | Comments (1) | TrackBack

Not That There's Anything Wrong with That

Out of curiosity, I occasionally check the search engine queries that bring people to my weblog. For example, I've discovered that some traffic, consisting of people with peculiar interests, has been directed therein by a post I wrote defending incest and bestiality prohibitions.

Today someone searched "can I sue for someone saying I'm gay" and was led to this post:

I ran across an two month old ABCNews article, pointing out that if the Supreme Court judges rightly in Lawrence v. Texas and deems laws against sodomy to be unconstitutional (discriminating against men either facially or practically), the designation of "gay" may cease to be considered defamatory per se, and people suing for slander or libel because they have been called gay will have to prove actual damage.

As long as sodomy is illegal, a sexually active homosexual is a criminal. The continuing public condemnation of homosexuality, however, may mean that "gay" will remain defamation even if sodomy becomes constitutionally protected.

I didn't know that you could sue someone just for his saying you were gay, unless you could show at least some possibility of damages. I've had people -- gay people, actually -- call me gay, and I never thought that I was being defamed. Of course, this happened at a large public university with moderate attitudes about homosexuality and a healthy Queer Student Union; I might have been more disturbed by it had it occurred when I was living in a small, conservative town.

The geographic differences that make calling someone gay in D.C.'s Dupont Circle an honest error, and calling him gay in rural Virginia per se defamation, imply that libel and slander suits will have to rely on community standards to determine whether they are viable.

One could look at whether a community has businesses specifically oriented toward gay people that operate without being molested by the authorities or community members. In Charlottesville, for example, the only dance club in town, Club 216, is a gay club. I've never heard of its having problems except when too many straight girls show up on College Night. Thus being called gay in Charlottesville would be defamatory only if one could prove that it had had a negative economic impact.

Posted by PG at 03:04 AM | TrackBack

July 15, 2004

Bitches and 'Hos

Eugene Volokh challenges the idea that rape is not "both a crime of violence and a crime of sex -- the rapist is motivation by sexual desire as well as by the desire for domination (and the two may well be intertwined)." For evidence, he notes that "The best evidence that I've seen for this is the breakdown of rape by age of victim [...] Rapists seem to select victims in age ranges that are pretty highly correlated to the generally understood peaks of sexual attractiveness."

Volokh fails to note two problems with his analysis, one relatively minor and one more significant. The first is that rape is more likely to be underreported by older women, who may feel a greater social stigma from having been a victim of this crime. Younger women, who have grown up on the message that one should not feel ashamed, and whose adulthoods post-date the changes in rape prosecution (which now prevent the "she's a slut!" defenses formerly popular), still do not report all rapes but are increasingly likely to do so.

The larger difficulty I see in Volokh's analysis is that it ignores the entire phenomenon of male-on-male rape, particularly the epidemic of prison rape. Men who did not commit same-sex rape while on "the outside" will nonetheless sexually victimize other men while in prison.

Sociologists consider this to be a dominating behavior intended to establish a hierarchy. Men who commit the rape are superior; those who are raped are the "bitches," "wives" and otherwise considered inferior. When questioned about their behavior, prison rapists declare that they themselves are not homosexual, but that their victims are.

This is not to say that Volokh's conclusion is wrong, only that his evidence has some gaps. Prison rape certainly shows that in the pursuit of both sexual gratification and domination, some men will engage in behaviors that they would not choose when women are available to them. I would modify the hypothesis from the motivation of sexual desire, with the connotation that the rape victim is the object of desire, to the motive of sexual gratification, in which the victim's attractiveness is not relevant.

Probably the most effective analysis would have to be more qualitative than quantitative, examining which crimes people prefer. For example, non-sexual assault allows one to commit violence and thus dominate another person, but without the motive of sexual gratification.

Solicitation of prostitutes allows one to be sexually gratified without committing violence (though one would then have to subdivide encounters with prostitutes into those in which the prostitute is paid to act in a subservient manner and be dominated by the client, and those in which s/he is not paid for that particular scenario).

Rape appears to combine the two. But rapists who commit non-sexual as well as sexual assault appear to be more motivated by the desire to dominate, whereas rapists who solicit prostitutes as well as force sex without paying for it appear to be more motivated by the desire for sex.

Posted by PG at 07:21 PM | Comments (3) | TrackBack

Today / July 16

Today Saddam Hussein celebrates the 25th anniversary of his formally becoming the president of Iraq, and Corey Feldman celebrates his 33rd birthday.

Posted by PG at 06:46 PM | TrackBack

Kerry, DOMA and the Constitution

Senator John Kerry, the Democratic presidential nominee, may be coming in for a drubbing from Eugene Volokh.

To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.
Kerry changed his views on the Defense of Marriage Act between his vote against it in 1996 and the February Democratic debates.
Kerry also asserted that DOMA was unconstitutional and that the U.S. Constitution’s full faith and credit clause requires states to recognize the marriage licenses of another state -- a position Kerry has since reversed.

"The authors of the bill mistakenly claim that Congress has the authority to allow one state to ignore a legally recognized marriage in another," he wrote in 1996. "But the U.S. Constitution is unequivocal on this point: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'

"Imagine the confusion if we didn’t have such a clause: A child-custody decision in California could be ignored by Illinois; a divorce concluded in Nevada could be rejected in New York. DOMA does violence to the spirit and letter of the Constitution by allowing the states to divide."

In a February Democratic presidential debate, Kerry distanced himself from his 1996 position on the Defense of Marriage Act.

"I think, under the full faith and credit [clause], that I was incorrect in that statement," he said at the debate, which was held in California. "I think, in fact, that no state has to recognize something that is against their public policy."

From the Boston Globe:
Bush's main Democratic rivals, Senators John Edwards of North Carolina and John F. Kerry of Massachusetts, both blasted Bush's call for a constitutional amendment as divisive and unnecessary, especially given that a federal law passed in 1996 already defines marriage as a union between a man and a woman. [...]

Kerry said: "While I believe marriage is between a man and a woman, for 200 years this has been a state issue. I oppose this election-year effort to amend the Constitution in an area that each state can adequately address, and I will vote against such an amendment if it comes to the Senate floor."

In fairness to Kerry, he says that he was mistaken before about the constitutionality of DOMA, and therefore is not simultaneously claiming DOMA to be unconstitutional while opposing the Federal Marriage Amendment as unnecessary.

Posted by PG at 06:26 PM | Comments (1) | TrackBack

Today / July 15

Today in Legal History (1994) - Microsoft Corporation reached a settlement with the Justice Department, promising to end practices it used to corner the market for personal computer software programs.

Posted by PG at 03:19 PM | TrackBack

Legal/Literary Fantasies

If you could be in a small-group book discussion with any ONE of these professors, which would it be?

David Anderson - John Grisham, The Last Juror
Mitchell Berman - John Tucker, May God Have Mercy
Philip Bobbitt - Tom Stoppard, Arcadia
Jane Cohen and Larry Sager - William Shakespeare, The Merchant of Venice
William Forbath - as yet unknown BOOK ON TERRORISM
Jack Getman - Herman Melville, Bartleby the Scrivener
Lino Graglia - Archibald Cox, The Role of the Supreme Court in American Government
Terri LeClercq - Gerald Stern, Buffalo Creek Disaster
Brian Leiter - Sigmund Freud, Civilization and Its Discontents
John Robertson - Sophocles, Antigone (Paul Woodruff, trans.)
M. Michael Sharlot - Bernard Schlink, The Reader
Louise Weinberg - Barry Unsworth, Pascali's Island
Patrick Woolley - Anthony Lewis, Make No Law

My own prejudices:

I'm skeptical of Anderson's choice, as I haven't read Grisham for several years because I felt that he was producing books that were really just meant to be movies. I'm familiar with neither Prof. Berman nor with Tucker; ditto Prof. LeClercq and Stern, Prof. Weinberg and Unsworth.

Stoppard is my favorite late 20th century playwright, and I've already read Arcadia for a drama class, and seen its second act performed. On the other hand, Merchant of Venice is one of my favorite Shakespearean works -- I took my AIM name from the heroine -- and I met Prof. Sager briefly at last year's Rawls conference, which leads me to think that we're going to be looking for underenforcement in MoV. Would a contract calling for a pound of flesh really be enforced, etc.

I haven't heard of Forbath to remember him, but a book on terrorism would have the obvious topical advantage... I wonder if, in light of Abu Ghraib, it will be Dershowitz's book.

Bartleby is the only Melville I've been able to finish (probably because it's so short), but I really do like it; I once wrote a paper about it and Stephen King's Bag of Bones. Archibald Cox passed recently; having been special prosecutor for Watergate, he likely had some worthwhile thoughts on the Supreme Court and constitutional crises.

Leiter and Freud are too notorious to mention. Antigone may be my favorite of classical drama, though I actually prefer Anouilh's version, and I'd like to meet Prof. Robertson, having "fisked" his views on assisted reproductive technologies back in bioethics classes.

The Reader was on my To-Be-Read list some time ago, so this could be a good opportunity to do so. Anthony Lewis is a former New York Times columnist who still makes an occasional contribution, most recently on the subject of the Court's decisions in the detainee cases. His better known book is Gideon's Trumpet.

Posted by PG at 03:09 PM | Comments (5) | TrackBack

Survivor: Eliminated

So sad to see you go, Matto. We know you'll still stop by to visit.

In the meantime, however, CONGRATULATIONS to those moving on:

Buffalo Wings & Vodka
Mike Mills

Stay tuned for your next challenge . . .

Posted by Chris Geidner at 10:23 AM | TrackBack

July 14, 2004

Today / July 14

Today in History (1798) - The Sedition Act becomes United States law making it a federal crime to write, publish, or utter false or malicious statements about the United States government.

Posted by PG at 09:12 PM | TrackBack

Survivor: This Just In

All visitors to De Novo: Whom do you like?

You have the say in who we kick off next at Survivor: Blogosphere!

Check out the new posts by Milbarge on outing, Wings&Vodka on Sen. Cornyn, Matto on copyright, and Mike on homeland security, then comment.

We've extended this elimination challenge for 24 hours -- until 10 a.m. Thursday -- so that everyone (and all your friends) can comment to keep your favorite blogger in the competition! Whoever's post has the least comments come 10 a.m. tomorrow, you're outta here!

Posted by Chris Geidner at 09:49 AM | Comments (2) | TrackBack

Mike Mills: He Lives on the West Coast

First, let me say what an honor it is to be so loved hated by so many (3) of you. In my defense, I never claimed to be a poet, and it's not easy to write when naked and coated in peanut butter.

The recent discussion out of the Department of Homeland Security and on many, many blogs the past few days has been about what to do in the event of a terrorist attack shortly before or during an election. The Department of Homeland Security wants to ask Congress to grant it the power to change the dates under a serious threat. I'll let others discuss the wisdom of such a power shift and who Osama really wants you to vote for. What confuses me is why no one has asked whether Congress can even grant this power to anyone.

Occasionally, Congress abdicates certain parts of its powers to the Executive, for any number of sensible reasons. In this case, it makes sense that the Executive might want the power to make quick decisions about the timing of elections, given that Congress may be out of session for part of the few months leading up to the November election (I believe they finish this term at the beginning of October).

Inevitably, a number of these times Congress passes a law to abdicate its powers, the Supreme Court strikes down the law. For example, the Court voted 6-3 in Clinton, et al. v. New York City, et al. that the Line-Item Veto was an unconstitutional abdication of power. Numerous other issues have an almost unspoken agreement that their underlying laws should not go to the Court, lest it strike them down: the War Powers Act gives the President leeway to make war that the Constitution never granted, Fast-Track trade authority grants the President the power to negotiate trade deals and prevent Congress from changing the individual pieces of those deals.

On the other hand, there are a few cases in which the Court seems to be okay with Congressional delegation of authority. Precedence suggests that "So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" ( Mistretta v. United States, in which Congress creating a commission that changed sentencing guidelines)

It seems that if Congress genuinely wishes to accommodate the Department of Homeland Security's wish to possess powers to postpone elections, it needs to make its legislation very clear and very limited. Merely granting the Executive the power to change the time of the election would likely be seen as too broad and irresponsible. Were Congress to grant such powers such that they could be only exercised in very specifically defined circumstances (I would expect requirements to include Congress being out of session, and some guidelines as to what is defined as a terrorist attack), then and only then would the Court allow such delegation.

Then again, wouldn't it just be easier for Congress to state that in the event of a terrorist attack, elections be postponed until Congress can be called up by the President? The only drawback I see here is if such an attack is actually on members of Congress.

Will Congress ever pass this law? Doubtful. However, I believe that the constitutionality of it will be upheld, especially given the urgency of keeping the elections stable. The ability of citizens to vote is an issue of dire importance; the ability of the President to change the wording in a bill is not.

Posted by Guest Contributor at 01:38 AM | Comments (10) | TrackBack

July 13, 2004

Matto Ichiban: In the Dark

Gotta start checking my mail at work . . .

Anyway, the one area of law where Congress has completely missed the boat is copyright: everything passes unanimously, everything totally benefits special interests, and nobody cares. The lack of care to copyright has sometimes been borderline unconstitutional, like extending the terms for works already created by twenty years, and much of it is downright incoherent, like the monolithic right in digital sound recording performance rights.

Ironically, as technology makes it easier and easier for the common person to create, transfer, and enjoy works of intellectual property (and information in general), the law is making it harder and harder. In this area of the law Congress has virtually abdicated its role to private parties. Behind the shield of "protecting markets" and the fruits of authors' labors lies protectionist legislation that lines the pockets of the few at the expense of the public (literally: depriving the public of a thriving public domain is tantamount to a legislative taking pawned off on people over the last century).

The market for air would greatly increase if its supply was regulated by law, but that is no excuse to deny people the benefit of the free flow of it around them: to live, play, work, think, and do everything else that separates humans from animals. In this regard, more than any other, Congress is failing America, and if Orrin Hatch has anything to say about it, it will continue for years to come. Write your Congressman: tell them to get wise on intellectual property, visit Lessis Blog occasionally, and give people back the right to use works of intellectual property that technology is giving them.

Posted by Guest Contributor at 09:48 PM | Comments (8) | TrackBack

BuffaloWings&Vodka: Democracy Tastes Good

TO: Sen. John Cornyn, Chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution
FROM: BuffaloWings&Vodka
RE: Some Stuff

Dear Senator Cornyn,

As my representative in the Senate, you’ve always been someone that I felt I could talk to. But that feeling increased exponentially when I met you at The Boyz Cellar in Austin last weekend. I was there with a few of my friends, hoping to hit on the straight girls that were there to avoid guys like me, and there you were, doing body shots at the bar. My friends were like, “No way is that John Cornyn. He’d never wear that boa in the summertime.” But I pointed out your now-famous My Little Pony tattoo--which, by the way must have hurt like hell…I know my inner thighs are totally oversensitive when it comes to stuff like that--and they had to agree that it was you.

Anyway, thanks for the drinks that night; I don’t think I’d ever had that many Fuzzy Pandas in a row. My only regret is that you skipped out before I had a chance to ask you a few questions about life in the Senate:

1. If you really pressed him on it, do you think Robert Byrd (D-WV) would admit to believing that he’s in the same Senate as Clay, Webster, and Calhoun?

2. Is Bill Frist (R-TN) as tall as he looks? My mom said that he's eight-foot-three, but I don't believe her; she also told me that Alan Thicke was my real dad.

3. Have you ever raised a Point of Personal Privilege to use the restroom? Because we had to do that in student congress, and I thought it was totally lame.

4. Just so I can get it straight in my head, am I correct in assuming that your opposition to gay marriage is predicated on a belief that homosexuality is a choice? (I mean, if you didn’t believe that it was a choice, then you’d be denying people rights based on something over which they had no control, which would be totally effing rude.) And if so, does that then mean that you believe that you could choose to be homosexual if you wanted? Like, if you woke up tomorrow and 90% of the country were homosexual and the Constitution and the Bible and Pat Sajak all said that heterosexuality was wrong, and high school kids were getting the crap kicked out of them for being heterosexual, you feel that you could suddenly choose to become gay? That’s awesome.

5. Is Senator Cantwell (D-WA) as hot in person as she looks on C-SPAN?

6. Is Jewel still your favorite band?

I know you’re busy with your amendment, but I hope you’ll find the time to write me back. You can also give me a call at 512-731-6527 if you want to chat on the phone or even meet up somewhere. I’m totally free.

Stay Beautiful,


Posted by Wings&Vodka at 09:11 PM | Comments (45) | TrackBack

Milbarge: Come Out With Your Hands Up!

There's a bit of a hubbub on Capitol Hill these days, as Congress prepares to take up debate over the Federal Marriage Amendment. Although I'm sure the FMA will engender many hubbubs, the particular hubbub of which I speak is about plans/threats/calls from gay rights activists to out Congressional staffers who work for members of Congress supporting the FMA.

I first heard about all this from a post on NRO's The Corner about the outing of Maryland Senator Barbara Mikulski, although I didn't think that was really a secret. That ended up leading to this story in the Washington Blade and this one in the Post. Naturally, Wonkette picked it up. And I've also seen interesting thoughts from Anthony Rickey and Chris Geidner.

The other day I had a chat with one of the gay people I work with. He's out and active in the gay community. He and his partner are adopting a kid, and all the baby-lovers in the officer are going goo-goo over that. Our office is very gay-friendly, which I define to mean it's no big deal if someone's gay. This lawyer's partner's name is listed on our home address directory just like every other spouse. Anyway, partly because of the office dynamic and partly because of this particular guy's attitude, it wasn't weird for me to pop in and talk about outing. To save me time, I'll call him George, although that's not his name.

As it turns out, George knows quite a few congressional staffers, both closeted and out, I think largely from his political activities. And George acknowledges that his views are somewhat out of the gay mainstream because he thinks outing is legitimate in certain circumstances. However, he's certainly not the type of person who thinks it's always legitimate and that no one has a right to be in the closet. He thinks the closet is destructive for the gay community, but he understands that some people feel they need to be there.

That said, George thinks that some closeted gays are doing a particular disservice to themselves and other gays if they work for a member of Congress who supports the FMA. There are various issues to balance here, of course. A low-level staffer who has no policy role in working for a moderate Senator is one thing, and different than, say, the chief of staff to that Senator, who is probably in a position to influence policy choices. However, "If you're working for a Jesse Helms type, I don't care if you're answering the phones; you ought to be out." My question was what obligation a gay staffer has to change things, to confront the boss over an issue like the FMA. For that matter, what obligation do any of us have to change the world?

George's response was that gays do have an obligation to make things better, to make it so that all gays can enjoy equal rights and no one has to be in the closet. Maybe all the staffer can do is subject the member of Congress to awkward pauses when the issue comes up, but that's a start. He's realistic that it's not going to change a lot of votes, and maybe it won't change any. But he didn't think that helping get the FMA passed was a good job for a gay person to have.

I'm not trying to say that my friend George is necessarily right. And note that I may be missing a nuance or two from our discussion a few days ago. I wasn't taking notes or anything. But, I thought that the least I could do, in addition to thinking about it from my remove as a heterosexual, was to go talk to the only gay person I know with whom I could comfortably discuss this issue. I realize it's not for me to say whether anybody should be out, or how much any person, straight or gay, should talk about his or her sexual preferences.

I guess I just have two points. First, I wish I lived in a world without a closet, where it wasn't shameful to be gay. But, I don't think it's right for me to out anyone. However, that mentality ends up making this whole thing only a "gay issue." It doesn't often make the "mainstream" media, unless somebody famous gets outed. (I just wonder how this would play if straights were doing the outing.) But I don't think this ought to be solely a gay issue. I think it should concern us all that people are in that position.

Secondly, I know I saw somebody else mention this, but I've lost it now. But I also find it very interesting that the media cover a story like this from the perspective of the outing and whether it's proper, while trying to avoid covering it from the "Senator X is a hypocrite" angle. We see this all the time, the process story. Instead of "stooping" to cover where the President puts his privates, the big media outlets cover the story of the tabloids spreading salacious details. I think constantly covering the-story-of-the-story is bad journalism, in large part because it lets the big media outlets feel better about themselves ("We're above all that!") than they have a right to. The Post won't run an outing story, but it will damn sure run a story about the story outing someone. So, is it a legitimate news story when someone is outed? What does the-story-that-there's-a-story reporting accomplish?

I don't know what the answer to this is, but I'll try to ruminate more on it. I would appreciate any feedback readers care to share in the comments section.

Posted by Guest Contributor at 06:38 PM | Comments (20) | TrackBack

Survivor: Elimination Challenge

The post about Congress with the least comments come 10 a.m. Wednesday will belong to the next eliminated challenger.

Get posting, Matto, Mike, Milbarge, and W&V. (And there's nothing wrong with either: (a) sparking controversy or (b) making your friends comment.)

As for all our readers, be sure to comment on the posts that make you think you'd want that person to move on in . . . Survivor: Blogosphere!

Posted by Chris Geidner at 04:20 PM | Comments (1) | TrackBack

Survivor: Eliminated

Congratulations to the following four contestants on Survivor: Blogosphere who have made it on to the next round:

Matto Ichiban
Mike Mills
Wings & Vodka

Soupie and Willy T, you've been shipped off the island, but we do appreciate your playing here at Survivor: Blogosphere. Stay tuned soon for a challenge!

Posted by Chris Geidner at 04:14 PM | Comments (4) | TrackBack

Mike Mills: Better Late than Never

An ode to Ted Olson, recently retired 42nd Solicitor General of the United States. I stole the gen'ral structure from John Donne

Wisen my mind, gen'ral Olson, for you,
As yet but speake, cry, proclaime, and advocate
That bush may rise, and stand, o'erthrow Flor'da's fate
You claim'd that recounts were uneven and the few
Like a corrupte Courte, did give you due.
Congress did admit you, and oh, you became
George-DUB-Bush's viceroy to justice (oh, fame
Twenty cases of twenty six in Courte won)
And dearly they loved you and were loved faine
But were oppos'd to combatant enemie.
Private practice call'd to thee, we
Shall see thee againe in Bush v Kerry.
Except you, office gen'ral'd respected never be
Nor ever wise, at leaste til forty-three.

Posted by Guest Contributor at 02:09 AM | Comments (1) | TrackBack

July 12, 2004

Wings&Vodka: The Passionate Blogger to His Love

Come let me clerk for you, my love,
And we will all the rumors prove:
That I would travel ‘round the globe
For just one peek beneath thy robe.

And I will read thru ev’ry brief
As thru a naughty mag I’d leaf.
And with your smile, ever so toothy,
You’ll call me Mike, and I you Ruthie.

And I’ll reread your sweet opinion
Right from U.S. v Virginia,
And in my eyes you’ll clearly see
My love for sex…equality.

Our hearts will be put to the test,
And your benchmates might this protest;
But if he should say something crass,
I’ll gladly kick Scalia’s ass.

My love for you, 'tis deep as Hades,
So if you’d just ignore my grades,
Then to D.C. I’d gladly move
To clerk for thee and be thy love.

Posted by Wings&Vodka at 11:58 PM | Comments (12) | TrackBack

Soupie: I got nuthin'

There once was a body called SCOTUS
Who, in 2000, appointed the POTUS
They gave it to Dubya
Which really should trouble ya
(Since they ignored the Florida votahs!)

But choose ol’ Georgie, they did
Behind the Consitution, they hid
No need for a tally
It would cause quite a dally
An unseemly delay, God forbid!

With Breyer and Souter dissenting
The seven stood fast, unrelenting
But with the trouble Shrub’s caused
With international laws
I wonder if any justices are repenting

Posted by Guest Contributor at 11:53 PM | TrackBack

Willy T: Poem--The Federalist Five

The Federalist Five

Appointed for life, and thus practically divine
No one can doubt those wise men and women of nine.
But five in particular are quite a cadre
Voting together, they made many decisions, some quite tawdry.

There’s Thomas, Scalia and Rehnquist—the solid three.
And then Kennedy and O’Connor, each is truly the key.
The Federalist Five they come together to make
And they leave the dissenting four alone in their wake.

With Lopez it began, all up in a hullabaloo.
The Court, it was shifting, and it left us without a clue.
Was this the beginning of a revolution of sorts?
No one could tell, not even professors of torts.

Then came Morrison, a tricky case indeed.
This one would test how tall would grow the seed.
The Five proved to the world that they had the gall.
Not even violence against women would grab from the Court their Ball.

But commerce would not stand alone, oh no!
Section 5 of the Fourteenth Amendment soon came in toe.
With Boerne and College Savings, Allen v. Maine and later Garrett—
States’ immunity was here to stay, and we’d have to grin and bear it.

Or so it seemed…

But now comes Hibbs, and Sabri, and Lane to boot
With Raich on the horizon, the revolution could now be moot.
Could commerce and enforcement be back with the feds?
Was it all just a dream? Were we just all in our beds?

I guess it was real, it wasn’t an illusion,
The Federalist Five, more powerful than cold fusion

They changed the way think about the balance of power,
But finally, it seems, it’s time to retire,
We had a good run, let’s go back to the ivory tower!

Posted by Guest Contributor at 10:48 PM | TrackBack

Matto Ichiban: One Monday

On a Monday like most others
As I sat at work and wondered
Wondered what the Nine would hold,
Wondered how the law'd unfold
Unto the land from up on high
As from a tower in the sky,
To show us all the immortal way:
What the Constitution had to say.

The case was much anticipated
And long in coming, seeming fated
From the start to be a watershed;
A matter great come to head
of Criminal Procedure, lately
the talk of matters stately:

Campaigns would be won or lost,
Promises once made would bear a cost
Depending on the decision rendered
This Monday morning by the members
Of this highest Court in the land;
On its word would fortunes stand.

The Justices entered, and the voices' din
Was soon hushed as the Nine marched in;
Anticipation flashed in every eye
As they knew the moment drew nigh
When the question of the day would be answered,
Divined out by the legalmancers.

But soon the eyes of hope faded
As it became apparent that the graded
Faces of the Nine betrayed great discontent
With the moment; and rent
Of its finality, became infused
With the stares and murmers of the confused.

No single opinion garnered more
Than one Justice's support.
And each in turn did voice
His or her choice:

Ginsberg then began the show:
"I would reverse the court below.
They did err in finding cause probable;
To search defendant's car, and though laudable
Were the state's goals or stopping crime,
Methinks they did tread too far this time."

"Poppycock!" came a voice from the right,
As Thomas stood, and with all his legal might
Explained: "She brought it on herself!
Soliciting for prostitution because the welf-
are checks couldn't pay the bills. With nothing more,
The police could surely look inside her door."

Quoth the Rehnquist: "She's a whore!"
(He wrote this and nothing more).

"Though I too think PC is lack,"
Interjected Breyer, "the crack
Is surely allowed through the vehicular answer"
[Lance Armstrong had testicular cancer]
"to the search and seizure question,
Which, to now, nary a Justice has mentioned."

Justice Antonin Scalia fumed in dissent
And true to his textualist bent
Waxed philosophical at the meaning of "search"
In 1791 for thirty minutes, and still perched
On the bench up high did decide
That the police were surely allowed inside.

John Paul Stevens did have enough
And got up from his seat to huff
About the natural rights of Man
To be free from a governmental plan,
To wit, allowing officers to be sent
Into a private sphere without a warrant.

Souter, too, sounded this alarm,
But differed as to the projected harm:
"What we have here," quod he,
"Is a failure for the police to see
That their actions were clearly lawless,
And without a civil remedy the law is clawless."

O'Connor stood after all the rest,
And simply proposed a ballancing test:
"The law" she stated "is simply wrong,
And deciding matters takes much too long,
So for justice in the land to be,
Judges must answer these questions three..."

But Kennedy, O Kennedy, had no opinion at all,
He abstained, and waited in the hall.
His third cousin, being twice removed,
Was a boyfriend to the presently accused.
So out of an abundance of caution,
He abdicated his judicial function.

Thus the case passed into memory,
No resolution reached, just a panoply
Of words from the highest court in the land,
Nine Justices, Nine differing minds.

Dont quit your day job Ichi...

Posted by Guest Contributor at 10:33 PM | TrackBack

Milbarge: "Robert at the Bat"

(Note: I borrowed the meter and rhyme scheme from "Casey at the Bat," but I'm sure it's been used in a million poems besides that one.)

The outlook wasn't brilliant for Earl Warren's legacy,
Thurgood, Bill, and Harry hung on, but all quite drearily.
And then when Burger called it quits, and Lewis did the same,
'Twas clear the Gipper saw the Court as something he'd reclaim.

The Gip had made Bill Rehnquist Chief, and put Nino on the Court,
Doubtless Nino pined to be paired with his old cohort.
Bork's nomination went before the Committ' Judiciary,
And with those liberal Senators the clever judge did parry.

The liberals wailed and gnashed their teeth when they heard the Rehnquist choice,
But Bork's the name that made them cry in one despairing voice.
They thought, "If only we can keep old Robert off the bench,
We could sleep a little easy and our sphincters would unclench."

The liberals made much fun of one Judge Robert Heron Bork,
They said his beard would go quite well with horns and a pitchfork.
His role as Nixon's hatchet man was carefully inspected,
And every word he'd ever written thoroughly dissected.

His champions touted how few times the judge had been reversed;
The liberals said he misconstrued the Amendment numbered First.
And his jurisprudence on the Ninth they hoped he would rethink,
For Robert would not guess at text beneath that blot of ink.

In the end the liberals had their way and Bork lost his Senate vote,
And since that time the judgeship wars have gotten quite cut-throat.
In later years Judge Bork became a preachy, angry grouch,
But there is much joy for Milbarge: To Gomorrah I will slouch!

Posted by Guest Contributor at 10:30 PM | Comments (1) | TrackBack

Comment: Free Verse

Jeremy said there should be poetry.

He suggested rhyme.

I wonder, however, if old-fashioned linguistic simplicities
Are "Necessary and Proper" in formulating legal intricacies.

Because we each will have a vote, I suppose
Jeremy's opinion is less-than-persuasive


Posted by Chris Geidner at 05:33 PM | Comments (2) | TrackBack

Survivor: Blogosphere -- Today's Elimination Challenge

It is time
For rhyme

Today's challenge will be
As suggested to me
By a reader who wrote
And I quote:
"I want poems that rhyme. About law. You can make it difficult and make them brief a case in rhyme, but the ultimate topic I leave to you."
And so that is what we will do.

I'll be gentle and give you a topic specific
And hope that the entries don't turn out horrific
Assignment is tricky; but I hope to inspire
Be clever, be witty, or your chances are dire

Your topic is: The Supreme Court. Feel free to treat the topic loosely.

Your deadline: Midnight tonight.

The method of elimination: Each of the 4 of us (me, PG, Nick, and Chris) will choose one entry to save. Those 4 contestants, and those 4 contestants alone, will move on.

Posted by Jeremy Blachman at 11:06 AM | Comments (10) | TrackBack

Today / July 12

Today in Canadian History (2002) - The Superior Court of Ontario orders Ontario to recognize same-sex marriages.

Posted by PG at 12:50 AM | TrackBack

July 11, 2004

SURVIVOR: BLOGOSPHERE -- The Battle Continues

Okay, so we may have exaggerated the number of candidates we have. It seems as if the long delay has frightened off a few of our prospective entrants and we're left with the Super Six, in no particular order:

Willy T
Matto Ichiban
Mike Mills

THERE IS STILL TIME for any of our delinquent entrants to join the fun by posting an intro post and the first challenge post. Because it's probably our fault more than theirs. (But not much time -- how about we say midnight tonight.) But if it's just the 6 of these folks, why, I think we're doing pretty well and there's really no bad choice among the bunch. I've been impressed with the posts so far.

But the first elimination challenge is coming. Monday. Stay tuned.

Posted by Jeremy Blachman at 09:37 PM | Comments (0) | TrackBack

July 10, 2004

Today / July 11

Today in History (1533) - King Henry VIII of England is excommunicated. Four hundred twenty two years later, the phrase "In God We Trust" is added to all U.S. currency.

Posted by PG at 08:36 PM | TrackBack

July 09, 2004

Willy T: Post 9/11 Political Tides

I jerk every time someone says anything good about John Kerry. The man is so dull, and such a hack, that I have trouble seeing him as President. Even if he does pull out a victory in November, he's another Carter, and will be gone in 4 years.

But the real reason I shudder when I think about a Kerry victory strikes at the heart of my changing political opinions since 9/11.

I voted for Gore in 2000. It's hard to imagine that was just 4 years ago. It was a different millenium back then, and I was naive college junior. It was a time when we could afford not to worry about the consequences of intense anti-Americanism. But that time has passed.

If you read my introduction a few posts back, you know that I have an affinity for classical liberal values. I'm pretty sure that I'm mostly sold on a number of stock libertarian issues -- loosening up drug policies, civil unions/gay marriage, and a general fear of regulation and big spending. Although I'm utterly confused about the death penalty, and am moderately pro-life, I don't consider these issues problematic, per se, for classical liberalism.

But clearly, Bush is no libertarian. A constitutional amendment banning gay marriage, new fat spending projects, and a general willingness to keep the status quo on the drug war all turn me off.

Since 9/11, however, I have begun a transition toward the Republican party. I'm a hawk. There's no issue -- not spending, not regulation, or any other domestic issue -- that's more important to national security. Frankly, I'm unsure how any issue could ecclipse national security in importance. Aren't Kerry voters worried that they'll be electing someone who will make terrorists celebrate?

Even if Kerry isn't weak on national security, his constituents clearly are, and are going to seriously affect the way America deals with beligerants. If people are going to hate us no matter what (which they clearly did before Bush was elected), it just seems dangerous to elect someone beholden to peacenik hippies who want to lay down arms in the hopes that the other side will too.

So I acknowledge that even though I can't agree with Bush on a number of varied issues, he's the better candidate for security. If I have to balance my policy desires, I'm definitely going to have problems with Bush. But since 9/11, there's no priority more important than my security.

Willy T

Posted by Guest Contributor at 11:08 PM | Comments (23) | TrackBack

Soupie: McCain-Feingold and Major League Baseball

If you follow Major League Baseball, you undoubtedly heard all the hub-bub over Carlos Beltran and the All-Star game. Briefly, Beltran was voted onto the American League team by his fellow American Leaguers while he was still playing for the Kansas City Royals. However, before the teams were announced, Beltran was traded to the National League Houston Astros. Baseball suddenly found itself in a no-win situation…namely, whether to put Beltran on the NL team. If they put him on the team, they would do so at the expense of a player who would have been on the team and they would, in effect, be allowing the American League players to put someone on the NL team (which, given that league who wins the ASG gets homefield advantage in the World Series, would seem to be unfair). On the other hand, if they ruled Beltran ineligible for the NL team, they would be punishing Beltran simply because his team sent him elsewhere and would be denying the fans a chance to see one of the best CFs in the game. Like I said—a no-win situation.

By now you are wondering what the hell this has to do with the assigned topic. The short answer is “not much.” The longer, more accurate answer is that the Federal Election Commission faces a similar decision when deciding whether Fahrenheit 9/11 violates McCain-Feingold.

(Quick recap…McCain-Feingold says that at certain times on the calendar, independent organizations cannot run ads financed with corporate or union money. The ban on corporate or union funding applies to any broadcast ad that identifies a candidate for federal office and airs within 60 days of Election Day, or 30 days of the convention that would nominate that candidate. These rules have an exception, for "news articles, editorials and commentary.")

Because Moore has been outspoken regarding this being an anti-Bush film, the argument can be (and has been) made that F9/11 goes beyond the commentary exception and that any commercials for it must adhere to the rules of McCain-Feingold. Even if F9/11 is found to be commentary, the FEC still hasn’t ruled on whether the commentary exception also applies to advertisements for that commentary.

So, how should the FEC decide? If they rule for Moore, they create an intriguing loophole to the law. Private groups wanting to run ads after the deadlines would only need to create a film about their issue. While this seems farfetched, one can only imagine the line of wannabe Michael Moores who would gladly make these films. The film wouldn’t even have to be good (if we are using Moore as the template). If, on the other hand, the FEC rules against Moore, suddenly McCain-Feingold gives that whole First Amendment thing a big fat headbutt. Telling a private filmmaker that he cannot advertise his film simply because of the subject matter and a date on the calendar seems to run counter to the idea of free speech.

Looking back at the Beltran example, however, there is one other school of thought. Carlos Beltran had been holding the Royals hostage, telling them that he was not going to re-sign with the team after this season. KC had to do something or risk getting nothing. By putting his team in that situation, some would say that Beltran was running the risk that something like this would happen. Perhaps the same could be said of Moore. He could have released this movie later (say after Election Day). He could have possibly released it earlier (though there was that delay with Disney), so that the hoopla had died down by now. Instead, he released it when he did and, in so doing, forced the FEC’s hand. Under this view, Moore took the chance that the FEC would rule against him and, if they do, he has no one to blame but himself.

Postscript: I seriously doubt this thing comes to a head. The FEC has been pretty slow and has tried to avoid controversy. Even if they did rule against him on the ads, Moore could probably just change the wording/graphics on his commercials and comply. I am just sick of people acting like Moore and Beltran are somehow victims.

Posted by Guest Contributor at 11:04 PM | Comments (2) | TrackBack

Today / July 10

Today in History (1985) - The Greenpeace vessel, the Rainbow Warrior, is intentionally bombed and sunk in Auckland Harbor by French intelligence agents.

Posted by PG at 07:44 PM | TrackBack

Today / July 9

Today in SCOTUS History (1974) - Former Chief Justice Earl Warren dies.

Posted by PG at 10:26 AM | TrackBack

Wings&Vodka: The Ladies' Blogger

In these stressful times, lots of my friends are prone to saying things like “Bush is an illegitimate president!” and “Mike, you just hit on my mom!”, and it’s prompted me to do some research. When people question Bush’s legitimacy, I assume that they’re referring to the Florida debacle and the inability of retirees to understand voting machines that, to me, seem infinitely less complicated than playing 34 bingo cards simultaneously. But there is yet another reason to question Bush’s legitimacy, and it’s one that’s rarely discussed in the mainstream press. It seems that Bush’s presidency--and indeed, the presidencies of our last thirty-one Commanders-in-Chief--have all been unconstitutional.

As discussed by professors Levinson, Balkin, and Steiker in a Texas Law Review piece from 1995 (74 Tex. L. Rev. 237), there is a serious problem with the Eligibility Clause of Article II, section 1, which states that an individual is only eligible for the presidency if they are a "natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution." The problem is that second comma, which implies that the third clause is applicable to both the first and second clauses; if read strictly, this means that someone would have to be either a citizen of the US in 1788 or a natural born citizen in 1788 in order to be president. The argument to which this article is responding points out that only citizens of the first nine states to have ratified the Constitution would be qualified for the Post of Posts, but Levinson and friends point out a much worse problem: The last U.S. president who was also a natural born citizen of the U.S. in 1788 was…Zachary Taylor. (And you thought Taylor was only important because he invented adult incontinence undergarments. God, were you wrong...) The authors go on to suggest that the framers could reasonably have intended this restriction as a means by which future generations would be forced to reexamine the whole process, something that sounds pretty Jeffersonish once you think about it.

It becomes somewhat clear upon reading the whole article than Levinson, Balkin, and Steiker are pursuing this notion primarily as an exercise in sticking their tongues out at textualists. But the question is still a relevant one. If we’ve been making exceptions to this requirement for the last 150 years, then what’s to say that other requirements couldn’t be similarly bent? Looking out for the interests of Schwarzeneggers everywhere, Orrin Hatch has already championed a bill that would allow foreigners eligibility after living in the U.S. for at least twenty years. But I would argue that such an amendment is unnecessary. If we can ignore a logical reading of the Eligibility Clause in the name of “reasonability,” it should be easy enough for Arnold to persuade the Supremes that he fits under that umbrella as well. In fact, if you were to get the right advocate in there, they might even be able to persuade the Court that women should be allowed to run for president, too. Now that, my friends, would be truly awesome.

But let’s take one step at a time.

Posted by Wings&Vodka at 01:20 AM | Comments (8) | TrackBack

Willy T: Supreme Court Decisions Avoid Electoral Impact

Some fear existed last month that the cases remaining on the Supreme Court's docket might actually affect the outcome of November's election. Those fears, now however, seem to be unwarranted.

The Pledge of Allegiance case, Newdow v. Elk Gove, had the potential to cut across party lines by splitting strong separationists from those who are less enthusiastic about the establishment clause jurisprudence of late. Although a ruling against the Pledge might plausibly have received heavy criticism from Kerry, it's much more likely that Bush could have used the fallout to his advantage, and perhaps suggested a constitutional amendment to fix the ruling. By ducking the issue and ruling on standing, the liberals on the Court successfully prevented Bush from campaigning on the issue.

The Cheney energy case could have also posed some serious problems for the Administration, had the Supreme Court not remanded the issue to the lower court that will certainly not decide the matter until after the election. Apart from the very interesting VP race shake-up that might have ensued if embarrassing information had emerged about Cheney, there might also have been some some very fertile ground for Kerry to emphasize the reliance of the Administration on big corporations, and their reliance in turn, on the Administration. And might I say, apart from all of the election issues, that the uproar about Scalia's denial of the recusal request was so misguided and ignorant as to fail the laugh test.

Of course, the decisions with the biggest potential impact on the election were the terrorism cases decided in the last week of the term--Hamdi, Padilla, and Rasul/Al Odah. When these cases came down on June 28th, the media reports mostly stated that the Administration had suffered a big defeat. Fine. But the defeat will be long forgotten by Novemeber in the minds of most voters. The habeas rights of enemy combatants, both U.S. citizens and Gitmo detainees, was much more sexy for law geeks than ordinary people/voters. Very few people will see these decisions in Novemeber as having weakened Bush to the point where he loses votes against Kerry.

So while the Court did perhaps have some potential to the affect the November election, its ducks and dodges, along with its decisions in complicated terrorism cases, will probably have no effect on the 2004 presidential race.

Posted by Guest Contributor at 01:14 AM | Comments (1) | TrackBack

July 08, 2004

Matto Ichiban: Restating the Obvious About PATRIOT

I have never read the Patriot Act, but have heard it attacked with strong words as a tool used by "Big Brother" to pry into the lives of innocent Americans. I have been reluctant to write about something as serious as this without sufficient knowledge. Still, with the recent news that the Patriot Act is likely to stay around for a while longer, perhaps I can post something generally about what has clearly been the defining mark of the Bush administration and a main point of contention in the presidential election: the War on Terror being fought on our shores.

Liberty is an odd concept: in the abstract people are for it, even enshrining it in our nation's founding document as a right that cannot be deprived without due process of law. But what do people mean by liberty? In the general sense, it means the freedom to do what one wishes without being constrained by government. In reality, too often it means preserving the "right" freedoms, while allowing other freedoms to be restrained quite harshly.

The best example is anti-discrimination law, but any pervasive government regulation (which in whole is quite pervasive indeed, and increasingly more so in many areas of our lives) restricts people's freedom in exchange for a certain other benefit. We feel we are better off without racial preferences (at least the "wrong" racial preferences) in hiring, housing, serving, or law enforcement. We feel we are better off if the government sets a minimum wage and maximum hour laws for minors. Perhaps we are right, but we should not deny that it is a restriction in freedom (I may be plagiarizing Scalia here, but I hope I can be forgiven. Read more Scalia).

In many ways we expect the government to restrict the freedom of some few in order to gain a benefit for the many, as evidenced by the sentiment of government failures that led to 9/11. I don't subscribe to many of these feelings myself, but it is hard to deny that ownership of Microsoft Flight Simulator and taking flying lessons are much more of a red flag then they were four years ago, and part of a puzzle that some believe the government should have put together before that fateful day. The freedoms of these few, certainly, should have been restricted, some will say, as if speaking about the government failing to stop a drug company from selling a product with harmful side effects.

Insofar as this attitude is in direct conflict with a libertarian attitude about civil liberties, I can defend the Patriot Act, at least until we can see it's effects over a number of years. If the government is allowed to tax people and give money when some are old, pay for care when some are sick, or use the threat of its courts to force a company to employ certain groups, can we really complain that that same government can look at what we read? Does the Constitution really allow such selective restrictions of liberty, especially when the feared overreaching of the Patriot Act is not apparent on the face of the law?

I only scratch the surface here, and there are probably many valid criticisms of the Patriot Act, but I will end with this: The U.S. government is not the gestapo, we do not have a KGB, and the Patriot Act is not the Sedition Act. If we are going the judge the Bush administration by this Act, then we should also make sure we set the Act as a product of its time, and at least in part a product of an ever expanding regulation of everyone's lives. Government using power, in and of itself, is not an argument against Bush, but I think too often it is put that way.

Posted by Guest Contributor at 11:37 PM | Comments (13) | TrackBack

Matto Ichiban: Late to the Party

So I move into a new appartment and don't have internet hooked up yet, and when I come to school on Thursday to check my email I find two messages about this Survivor: Blogosphere thingy (I would have preferred "Last Blogger Standing," but that's just me). Away we go...

Ichi blogs about legal stuff. And other stuff. In his spare time he is a student at UCLA School O' Law, at least until he figures out how to burn Los Angeles to the ground (he hates L.A.; in the second season of Twenty-Four, he was rooting for the nuclear bomb). He is also working at the L.A. City Attorney this summer, and hopes to do at least one real-life trial. He is also an obsessive Go player. Ichi would fully expect to win Survivor: Blogosphere if he understood how it was scored. Until told otherwise he will assume it is a combination of measuring each blogger's tolerance for Glenn Reynolds and being able to divine the future of law and politics from a bird's innards. Michael Moore is fat.

Posted by Guest Contributor at 10:39 PM | TrackBack

Milbarge: Email Interpretation, Blog Post Interpretation, Statutory Interpretation, and the Presidential Election

I'll admit I was a little confused by our first Survivor challenge. I know it sounds so simple, but it isn't. We got an email directing us to "write a post that discusses a legal issue as it relates to Bush or the presidential election generally." As you can see here, PG relayed this command as a directive to "discuss the law or a legal issue as it relates to President Bush or to the presidential election generally." Notice the subtle difference? PG's post has an extra "to" in it. When I read the email, I took it to mean that we should discuss a legal issue relating to the President or something about the election generally, but not necessarily "legal." When I saw the post, however, I realized that we were supposed to discuss either a legal issue about Bush or a legal issue about the election generally. But either way, the law had to show up.

I'm not mentioning this to chide PG for the ambiguity. I'm sure the fault was mine for misinterpreting something that I'm sure was perfectly obvious to everyone else. But the result was that I spent all day wracking my brain for something to write about. And this was what was maddening about the enterprise. At first, I thought this was a very easy challenge, because there are so many possibilities. And then I realized the genius behind it: There are so many possibilities. How to pick something that I can discuss knowledgeably that hasn't been written to death?

Well, I'll have you know that I came up with a few things, but they were all in the "presidential election generally" category, and not specifically legal in nature. My front-runner was whether John and Elizabeth Edwards would ask the Bush twins to babysit Jack and Emma Claire. But that will just have to wait for some other time. Once I saw PG's post, I had to quickly switch gears and try to find a "legal issue." It was sort of an Emily Letilla moment. (I am, of course, assuming that PG's post is merely an example for us challengers, rather than a selection of the topic for us to discuss, given that it wasn't mentioned in the email but instead it seemed we were to pick our own topics.)

So, given my close parsing of the text of PG's email and post, perhaps it's not surprising that I choose the controversy over the Class Action Fairness Bill, currently being debated in the Senate, conveniently timed to coincide with John Kerry's selection of John Edwards as his running mate. No doubt that if this bill becomes a law, countless hours will be spent looking for extra "to's" and other loopholes and quirks.

What interests me about the bill, aside from the main thrust of it to send more class action lawsuits to federal court, is the goody-bag it is likely to turn into before it's done. The President has pledged to sign it in its current form, but the Democrats want to include amendments extending the "assault weapons" ban and raising the minimum wage. Look for plenty of posturing about nefarious "trial lawyers," gun rights, "working families," and whatever else gets shoehorned into this thing. It wouldn't surprise me to see ANWR stage a comeback. My bet is that both candidates end up finding something they like and something they don't in the act. But it should make for interesting legislative machinations as we near the election. If I had to go out on a limb, I see this scenario playing out: Bush announces he opposes the minimum wage increase, but if it gets included in the final version, he'll sign it and take credit for it as a measure he championed to help middle-class Americans. And, the Democrats who threaten to, or actually engage in, filibuster if the assault weapons ban is not included will be accused of voting against poor people.

As for the merits of the bill, I haven't studied it closely enough to have a firm opinion. But I have great respect for one its primary sponsors, a Democrat whom I'd rather not name. In the end, it doesn't look like it will be the panacea its sponsors suggest, or the poison pill its opponents warn. If a President Kerry ends up appointing a bunch of federal judges who are as friendly to class actions as Bush accuses so many state judges of being, maybe it will all even out anyway. At the very least, this bill bears watching, because it might be the most significant piece of legislation Congress will take up before the election.

Posted by Guest Contributor at 05:02 PM | Comments (1) | TrackBack


Congratulations to former co-blogger Unlearned Hand.

Posted by PG at 01:36 PM | Comments (6) | TrackBack

Bring Me a Shrubbery

Survivor: Blogosphere Challenge #1 -- discuss the law or a legal issue as it relates to President Bush or to the presidential election generally.

Today's Washington Post declares, "In choosing Sen. John Edwards (D-N.C.) as his running mate, Sen. John F. Kerry (D-Mass.) has pushed the volatile issue of tort reform onto center stage in the presidential campaign, intensifying splits between consumer and business interests and lobbies."

While many politicians have J.D.s, they often use them as stepping-stones to politics, as with Bill Clinton's Attorney Generalship of Arkansas after he was defeated in his first Congressional campaign. Or in Hillary Rodham Clinton's case, they work for public interest groups such as the Children's Defense Fund and for corporate law firms. Prosecuting criminals and lobbying for children's welfare are pursuits to which few people can object, and Republicans who like to portray themselves as business-friendly cannot take shots at an attorney who works on behalf of businesses.

In contrast, John Edwards's career in the plaintiffs' bar, not to mention the monetary success derived from it and the campaign funds raised from fellow lawyers, looks to be an obvious target for the GOP.

Posted by PG at 01:12 PM | Comments (0) | TrackBack

Paralyzing Indecision

In two weeks, I need to pay fall semester tuition to a law school. Unfortunately, I still don't know which school it should be: the University of Texas or Georgetown. Every time I think I've settled on one, I start thinking about the other. Ambivalent doesn't even cover it.

Friends who have exhausted the "go with your gut" cliche (my gut keeps me balanced on this fence) are now down to recommending that I get all the paperwork complete for both, flip a coin, write the check and mail it. Heads Georgetown, tails UT.

I can't quite bring myself to make a decision on that basis, so I'm hoping to get input for the schools that will make one of them a clearer choice. My eternal gratitude goes to any De Novo readers who can push me past eenie-meenie.

Posted by PG at 10:17 AM | Comments (20) | TrackBack

July 07, 2004

Introduction: Willy T

Willy T is a rising 3L at Boalt Hall School of Law in Berkeley, California. He enjoys complicated and obscure constitutional law issues, but unfortunately lacks the intelligence to understand them fully. Although he will ultimately take a position as Solicitor General of the United States, he presently despises the monolithic state and subscribes to an ignorant brand of hawkish libertarianism. He thinks that he qualifies as a neocon, but needs to research the matter more. This will be his first attempt at regular blogging. He is definitely the sentimental favorite.

Posted by Guest Contributor at 11:46 PM | TrackBack

Today / July 8

Today in SCOTUS History (1974) - Oral arguments in United States v. Nixon (Listen here).

Posted by PG at 07:54 PM | TrackBack

Mike Mills: The Token Undergrad

If you throw Mike Mills into Googlism, you will see that he is "the band's secret weapon," "a lazy slob," "a thumbsucker" and a "warehouse supervisor." He is none of these. Well, maybe the thumbsucker. As an undergraduate in his final year (does that make him a -1L?) aspiring to be a law student, his spirit and his optimism for the future are not yet crushed. He blogs with the frequency of the full moon at Law, Legislation, and Lunacy, which discusses rather obscure economic thinking. He has no expectation of winning, given the age and experience of his competitors. He hopes to enjoy the competition, which means he will lose on day 3.

Posted by Guest Contributor at 05:46 PM | Comments (2) | TrackBack

Soupie: Better with one hand than most are with zero

Remember in Survivor: Australian Outback when Michael fell in the fire and had to leave the competition? Well, I almost became Survivor: Blogosphere's Michael. Due to a freak weightlifting accident, Soupie is competing in this blogging battle royale with only one hand. Never fear, though! In addition to keeping up my regular haunt at Soupie's BBQ & Daycare and preparing for my second year at Midwestern School of Legalese, I plan on being a gamer and playing this contest to the best of my ability (which isn't all that much, even with two hands). As for my other bloggery? Well, The Daycare is a mix of attempted humor, law school related stuff, photos of hot women, and the occasional sports rant. So, game on! And may the best gimp win!

Posted by Guest Contributor at 04:07 PM | TrackBack

Blogging for Fun, Against Profit

I ran across Southern Stump, the weblog of Finlay J. McFadden (isn't that a great name?) today via JD2B. McFadden blogged for less than a month this past spring; his sign-off post says,

I gave this a good try but, it simply requires to much work. It is at least an hour a day to find, analy[ze] and edit a post. Considering my time is billed at $300/hour, it was costing me $1,500/week or over $75,000 a year. It's not worth it.
Now I wonder if upon graduation from law school and employment at big firms, Chris, Nick and Jeremy -- not to mention the many other law students whose blawgs I read -- will all conclude that their time is too monetarily valuable to be spent on reading and writing that cannot be billed to a client. I've always thought of blogging as enjoyable leisure activity, like watching TV, but when The McFadden does the money breakdown, it's hard to argue.

Posted by PG at 03:45 PM | Comments (4) | TrackBack

WingsandVodka:The People’s Blogger

When my agent called and said that Jeremy Blachman had been pestering her all week to have me on as a guest blogger at De Novo, I was like “Who the hell is Jeremy Blachman, and why is he calling my mom?” But once she assured me that I’d get my money up front, I calmed down. So here I am. I hope the fact that I’m the only blogger being paid for this stunt doesn’t cause a problem. I would also request that none of the challenges involve brand-name sports drinks, as that would present a conflict with Gatorade’s sponsorship of my own blog. Also, if someone could get me a club sandwich, that would be great--I’m starving. But enough about business. I’m a 2L at the University of Texas, and I bring over thirty years of Reality Blogging experience to the table. Though my usual blogging is primarily concerned with Nietzsche, American Legal Realism, and the plight of legal academics in general, I’m glad to slum it for awhile in the name of charity. So bring on the challenges, bring on the drama, and hand me my Hawaiian sling. Boston Rob ain’t got nothin on me.

Posted by Wings&Vodka at 02:47 PM | Comments (1) | TrackBack

Milbarge: So when do we start eating bugs?

Milbarge is the blogonym of a 2002 law school graduate who is currently working as a staff attorney for one of the federal courts of appeal. In a month or so, he will begin clerking in chambers for a judge on a different federal court of appeals. He usually blogs at Begging the Question about law and pop culture and life and whatever else comes to mind. He's a little unsure if he really has to write this in the third person, but he's decided to keep going. He's pretty excited about entering "Survivor: Blogosphere," a little unsure of what to expect, and mainly using it as a way to meet women. He fully expects to win, which in the world of reality shows and blogs means he's most likely to go home first.

Posted by Guest Contributor at 12:16 PM | Comments (0) | TrackBack

Survivor: Blogosphere BEGINS NOW!

We promised, and now for weeks we haven't delivered. But the best things in life are worth the wait (and come in small packages, but that doesn't really apply here, unless you're reading this on a laptop). And so, today, we are pleased to provide our waiting-on-the-edge-of-your-seats audience with a competition never before seen (if it has already been seen, please don't tell us and spoil the delusion) on the Internet, anywhere.

TEN (or perhaps fewer, if some of them have bailed on us) brave men and women have declared themselves up to the challenge of outwitting, outposting, and outlasting the competition to become De Novo's first Survivor and get the chance at fame and fortune, or at least as much fame and fortune as we can provide by letting them post with us for the rest of the summer -- and perhaps longer, depending on how it works out.

We've developed a series of bold and unusual challenges, including the challenge of coming up with some bold and unusual challenges. They will begin tomorrow, and continue until the contestant pool has shrunk to just two. Those two will then compete in an ultimate Survivor: Blogosphere final competition that will truly determine who is the real Survivor.

What we need from you, our readership, is some help. On many of the coming days, we may ask for you to vote, either through comments or some other revolutionary hardly-before-seen method (like e-mail, or a Zoomerang poll, but we're still figuring out some last-minute details). Or we may beg you to tell your friends (in fact, the begging begins now: TELL YOUR FRIENDS!). Or, starting today, we may ask you to help us develop some bold and unusual (or just one of the two adjectives, if you prefer) challenges for our contestants. E-MAIL US your ideas for challenges. We will be forever grateful, assuming your ideas aren't really quite terrible. Pretty please.

TODAY, all ten of our contestants will post brief introductions: who they are, and whatever it is they want to say to gain your sympathy over the coming days. The first elimination could come at any time (but probably tomorrow). Be on the lookout. Tell your friends. Suggest some challenges. Give us feedback. Like us. Please like us. We only want you to like us.

That is all. Let the competition begin.

Posted by Jeremy Blachman at 12:12 PM | Comments (1) | TrackBack

July 06, 2004

Today / July 7

Today in SCOTUS History (1986) - In Bethel School District No. 403 v. Fraser, Chief Justice Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education." Justices Marshall and Stevens dissented.

Posted by PG at 05:03 PM | TrackBack

Marriage and Taxes

Supporters of same-sex unions, ranging from P.J. O' Rourke to myself, have jokingly wondered why some straight people wouldn't want to subject homosexuals to the same lifestyle that we're expected to maintain: "get married, have children, and go to church," in O'Rourke's words, and "settle down, buy a home, raise children, (horror of horrors) pay the marriage tax penalty" in mine.

That last terror may not exist, however, at least not at the federal level.

According to last Thursday's Wall Street Journal:

[T]he Internal Revenue Service recently confirmed that same-sex couples can't file joint federal income-tax returns, citing the 1996 Defense of Marriage Act, which a senior IRS official says defined marriage as a "legal union between one man and one woman." Thus, even if a state recognizes a union of two people of the same sex as a legal marriage, "that recognition has no effect for purposes of federal law." A taxpayer "in such a relationship may not claim the status of a married person on the federal income-tax return."
Despite people on both sides of the same-sex marriage debate constantly reiterating that marriage is a state law matter, when it comes to federal income taxes, Congressional legislation trumps that of any state. As far as I know, DOMA was the first federal law (aside from immigration statutes) that attempted to set rules for marriage; presumably interracial couples had to file as married even if, pre-Loving, some states did not recognize their union as legally valid.

So even if every state in the union eventually permits same-sex marriages, DOMA would have to be invalidated by Congress or the federal courts in order for the IRS to get its hands on the extra tax revenue -- roughly half a billion dollars a year -- that the WSJ calculates would come from counting gay couples as married.

However, states with same-sex marriage and state income taxes are happily collecting.

In Massachusetts, though, same-sex spouses "will file as married persons, jointly or separately," for state income-tax purposes, the state Department of Revenue said recently. Thus, same-sex couples in Massachusetts "may need to perform special calculations" to arrive at the proper state income-tax figure, the state says.

Speaking of immigration statutes, presumably we can see yet another injustice resulting from DOMA's federal definition of marriage: a non-citizen who marries an American of the same sex will be subject to the same process of visa renewal and fear of deportation as a non-citizen who is not married to an American.

Posted by PG at 04:11 PM | Comments (1) | TrackBack

Bad Reputation

John Edwards seems like the sort of nice, upstanding young feller any Democratic presidential nominee, particularly one perceived as an elitist Yankee, would want as his running mate. Middle-class product of southern public schools; first in his family to attend college, where he worked his way through and graduated with high honors; still married to his grad school sweetheart, with three surviving children and a heartwrenching reason for becoming a politician.

But John Edwards has a dark secret.

OK, it's not exactly a secret; his own biography admits that he "earned a law degree with honors in 1977 from the University of North Carolina at Chapel Hill," and "dedicated his career to representing families and children hurt by the negligence of others," which is a polite way of saying he was (da da da DUM) a plaintiff's attorney! The black-hearted scoundrel!

Sure, he tries to spin it nicely: "Standing up against the powerful insurance industry and their armies of lawyers, John helped these families through the darkest moments of their lives to overcome tremendous challenges. His passionate advocacy for people like the folks who worked in the mill with his father earned him respect and recognition across the country."

But Crossfire knows the real story: "Is middle America going to see John Edwards as the 'son of a mill worker', or, after the Bush-Cheney team is done with him, will they see an ambulance chasing multi-millionaire?"

Technically, can't one be the ambulance-chasing multi-millionaire son of a mill worker? They're not mutually exclusive.

In all seriousness, this is a depressing prospect for anyone who wants to join the plaintiffs' bar. Is every lawyer who specializes in torts tarred with the brush of "ambulance chaser"? (Although if anyone does have evidence of Edwards's having chased ambulances, please pass it along.)

Posted by PG at 01:54 PM | Comments (1) | TrackBack

July 05, 2004

Today / July 6

Happy 58th birthday to President George W. Bush (1854 - In Jackson, Michigan, the first convention of the U.S. Republican Party is held.) And happy 28th to 50 Cent (1785 - The dollar is unanimously chosen as the money unit for the United States. This is the first time a nation has adopted a decimal currency system).

Posted by PG at 03:22 PM | TrackBack

Today / July 5

Today Indonesia held its first direct election for president. According to the New York Times, "The overall result was in doubt after an unexpected number of completed ballots were declared invalid at polling stations. The national election commission ruled that the ballots inadvertently marked with two punches -- but where the voter's intention was clear -- should be recounted as valid."

Posted by PG at 03:18 PM | Comments (0) | TrackBack

July 04, 2004

Supreme Court Roundup

The New York Times has a summary of the Supreme Court's latest term, saying that Rehnquist has lost the majority and the tide has turned. There's summaries of all the major cases. It's a nice resource, although I'd be lying if I said I did more than skimmed.

Posted by Jeremy Blachman at 06:37 PM | TrackBack

July 02, 2004

Here's Hoping It's Fair Use

I long ago abandoned my subscription to the New Yorker, but I must say I miss the extraordinary covers. Here's the latest:

A very happy 4th to you all.

Posted by Nick Morgan at 08:24 PM | Comments (2) | TrackBack

July 01, 2004

Today / July 2

Today in History (1776) - The Continental Congress adopts a resolution severing ties with Great Britain. Two hundred years later, North and South Vietnam, divided since 1954, reunite to form the Socialist Republic of Vietnam.

Posted by PG at 07:06 PM | Comments (0) | TrackBack

Is There a Regulatory Law Geek in the House?

Pursuant to an idea I had yesterday, I am wondering about the extent to which the government may impose information collection requirements on non-governmental entities. Specifically, I am wondering if federal or state law could require abortion providers to have women fill out an anonymous (thus fulfilling HIPAA privacy) questionnaire regarding their decision-making process for having an abortion.

Virginia and other states already have 24-hour waiting periods that force women who seek abortions to visit providers once to receive information about negative consequences of and alternatives to abortion, then return at least a day later to have the procedure. A questionnaire seems far less burdensome as a practical matter, but it may entail an invasion of patients' privacy or a trespass into the clinics' speech autonomy.

Anyone know the rules governing this sort of thing?

Posted by PG at 06:49 PM | Comments (2) | TrackBack


We have a fairly good size readership here at De Novo, but if you know--like we do--that De Novo will some day become the world's great media empire, then consider speeding up the process with a nomination over at Underblog:

    The reason for this series was that whilst there are plenty of blog awards that identify the most popular bloggers, best designed blogs, best photobloggers etc. - unfortunately only a few select blogs tend to win these competitions whilst thousands of excellent blogs go unnoticed and uncelebrated. 'Celebrating the Underblogger' seeks to identify and promote these bloggers - the Underbloggers.
Posted by Nick Morgan at 06:16 PM | TrackBack