Date based archive De Novo: February 2005 Archives

February 22, 2005

Maybe Jeans and Sneakers?

The latest firm reception invite beckons: "Are you interested in:
Regularly wearing shorts and flip-flops to work (& still making more than $130,000 a year)?"

One of the offices is in New York. I'm thinking that a regular uniform of shorts and flipflops is inadvisable.

JAG interview coming soon...

Posted by PG at 01:11 PM | Comments (0) | TrackBack

February 21, 2005

Today/ February 21

Happy President's Day! Today also is UNESCO's International Mother Language Day. In 1952, Language Martyrs' Day marks language-revolution in the then- East Pakistan (currently, the independent state of People's Republic of Bangladesh). On that same day, the Churchill government in the UK abolishes Identity Cards to "set the people free."

Posted by PG at 12:31 PM | Comments (0) | TrackBack

February 20, 2005


CNN is reporting that Mexico is holding its first ever public, oral trial. Who knows, maybe that country is interested in a celebrity spectacle involving a soap star or something, but this occasion raises a few semi-interesting thoughts.

First, even though Mexico is a Code country, it's a bit puzzling that there are NO oral arguments whatsoever in their proceedings. In Code countires like France, the proceedings are similar in that both sides collect evidence and submit it to a judge. But there is also a point where both sides appear before the judge to aruge their side (though this might be in chambers rather than open court or what have you).

But of course the more significant point is the degree of conformity now found between Code and Common Law jurisdictions. In an effort towards open and fair judicial proceedings Code countries are adopting some aspects of Common Law proceedings, while in an effort toward uniformity and because of advances in society, Common Law jurisdictions are more and more acting as interpreters of judicial intent rather than pronouncers of general rules of law. I'm almost certain that in another 20-50 years, it would not be difficult to practice law in France and then go over to a Common Law country and vice versa (minus the whole learning the law of the country part...but with respect to procedure and technique...won't be all that different).

Posted by Armen at 03:27 PM | Comments (0) | TrackBack

February 19, 2005

Not Even Gilette's Mach 28 can cut it this close

On Friday morning at 8:30 AM I had my second draft of a brief due for Written and Oral Arguments, the one unit pass/no pass class that's mysteriously taking up more time than the 2, 3, and 4 unit graded courses. Also at 8:30 in the morning, I have Civ Pro, which means the paper was due about 30 mins before that time so that I'd have time to run to class. Long story short, around 3 AM, when I got sleepy, I set my alarm for 5:30 in the morning and went to sleep. I woke up at 8:15, to find the alarm still properly set (not PM or anything), but it had not gone off. I managed to QUICKLY edit the paper and get it in close enough to the deadline. I also managed to miss apparently one of the best classes where the Professor Civ. Pro. sang and played his guitar. This is about as bad as the time I missed the class when he talked about How Great How Appealing and the SCOTUSblog are.

So I lay out three challenges:

1. What is YOUR law school nightmare? Sleeping through an exam? Soiling your pants during an exam? Not finding anyone to go to the Barrister's Ball?

2. What's the awesomest class you've missed? Attended?

3. Something about some guy getting arrested for spamming via AIM. Might be interesting if you're into that stuff. I realize this is not really a challenge.

Posted by Armen at 03:55 AM | Comments (4) | TrackBack

February 17, 2005

Sun's Surrender

IRAC is not coming naturally to me. (By the way, did y'all know that IRAC is a relatively recent development in legal education? Someone asked a lawyer at a lunch presentation about whether she used IRAC in her real world practice, and she didn't know what he was talking about.) I blame it on bioethics training, where after identifying the competing principles involved, we tended to analyze a situation through casuistry, triangulating from previous cases to work out our preferred solution to the dilemma. This seems similar to precedential thinking, except that one has to write for law school with the rule first, the specific situation second, and this muddles me.

I think part of the trouble is that IRAC feels unnatural and falsely assured. I didn't start with a rule already in place, so I want to walk my reader through my own analysis, how I managed to pull a rule out of a series of cases. Of course, the difference between law and ethics is that in the former, the courts already have declared rules based on cases. They may modify, narrow and even reverse these rules, but they have them, whereas ethicists have to limp around with principles and intuitions.

Which is all preface to the intended point of this post: At which point does the general public stop worrying about a life? In Houston there is a baby nearly five months old who probably will be taken off his ventilator soon, against his mother's wishes. He has a fatal condition that eventually will cause him to suffocate, and is kept sedated for comfort. No one except his mother -- who named him Sun and whose mental health has been questioned by the hospital caring for her son -- thinks he ought to stay on the ventilator until his lungs become incapable of sustaining his body. Even a Jesuit priest and ethicist says "To insist the child had to endure this and the hospital had to provide treatment that made no medical or physical sense would have been a tremendously awful thing."

I happen to agree with those who find indefinite life-sustaining measures for someone incapable of requesting them and whose condition cannot be improved to be morally suspect. But that rule would seem to encompass the case of Terry Schiavo, and Ms. Schiavo has many people very vigorously lobbying for her life to be sustained. For Ms. Schiavo, there is to reverse legal judgments; for Sun, there is a hospital duly paying his mother's legal fees to ensure due process before they turn off the machines.

Posted by PG at 09:55 PM | Comments (3) | TrackBack

Today/ February 18

Today in Homegrown Terrorism History (1998) - Two white separatists were arrested in Nevada and accused of plotting a biological attack on New York City subways. Also, Beltway sniper Lee Boyd Malvo, in prison for life, turns 20 today.

Posted by PG at 09:27 PM | Comments (0) | TrackBack

February 15, 2005

Speaking of Bull Shit

I had the dubious honor yesterday of showing an admitted 0L around the law school and have lunch with him at the Admissions Office's expense. While Admissions is kind enough to pay for lunch and offer a Do's and Don't List, I am much more curious to get feed back from those concerned about what SHOULD be discussed. Specifically, (1) as a current or former law student what factors do you think 0Ls should consider, and (2) as a pre-law, what do you want to know about a school from a current student that you can't find out from a website?

If you're into abstract discussions, you may want to think about this whole sales pitching a school bit.

Posted by Armen at 12:05 PM | Comments (6) | TrackBack

February 14, 2005

Crack My Shit Up

I know it's juvenile, but watching the New York Times have to say [bull] repeatedly in order to avoid using a "barnyard expletive" had me laughing during class. Luckily the prof hadn't started lecturing yet. I agreed with Nick when he found norming "shit" to be a questionable solution to the problem of FCC language regulation ("If everyone, all at once, agreed to liberate 'shit' from its stigma, I suppose that'd be nice, but I don't think the FCC has that kind of power"), but for a newspaper to be unable to print a book title because it mentions excrement is a little silly.

Posted by PG at 11:21 AM | Comments (1) | TrackBack

February 11, 2005

Kos's Cause

Latest Bush administration media scandal: A person writing under a pseudonym for Republican news sites Talon and GOPUSA was given the equivalent of a permanent White House press pass without having to meet the standards usually required. Apparently not content with paying conservative editorialists to focus on particular issues, the Bush Administration now is padding the press room with rightwing reporters for news organizations of dubious legitimacy. (Though I do hope that the Daily Show finally gets the credentials it deserves.)

The part that everyone else finds more interesting, however, is that the reporter in question "has been linked to online domain addresses with sexually provocative names."

Markos Moulitsas, a San Francisco liberal who writes the popular Kos site, said of Gannon: "He has been extremely anti-gay in his writings. He's been a shill for the Christian right. So there's a certain level of hypocrisy there that I thought was fair game and needed to be called out." Asked if digging into someone's personal and business activities was proper retaliation, Moulitsas said: "If that's what it took to really bring attention to him, it's one of those unfortunate facts of reality in the way we operate today. It's sex that really draws attention to these things."
Perhaps predictably, Kos's blog opposite -- the bizarro Kos, if you will -- found this "calling out" to be inappropriate.

Glenn Reynolds, a University of Tennessee law professor who writes on, said the tactics used against Gannon "seem to me to be despicable. If I were a member of the White House press corps, I'd be really worried," Reynolds said. "If working for a biased news organization disqualifies you, a lot of people have a lot to be worried about. If being involved in a dubious business venture is disqualifying, I suspect a lot of people have a lot to be worried about. I guess I don't see what all this has to do with his job."
Chris finds the suggestion by one blogger that Gannon "may have dabbled in male prostitution rings [and brought] male prostitutes into the White House" to be a disheartening instance of Democratic gay-baiting. Personally I incline to the theory that Ganno bought the websites with the intent of luring members of the military into violating Don't Ask, Don't Tell, rather than to use them for actual military escorts; with Dark Lord Rove running the show, I no longer apply Occam's Razor but prefer the most wicked conspiracies possible.

Kos, on the other hand, seems to believe that Gannon was dabbling in homosexual activities on a business and/or personal level, and that this made his working for an anti-gay organization hypocritical. This debate's made the rounds before, when Ed Schrock withdrew from his Congressional race and gay-rights advocates went on outing missions against politicians who support the Federal Marriage Amendment and their staffers. The argument appears to be that if someone provides anything like aid and comfort to the wrong side of this civil rights debate, that person is fair game. Something like, Because with the issue of gay rights, the personal is political, that means there is no longer anything personal that cannot be made political.

There's a powerful odor of ... not mendacity ... but self-righteousness in using aspects of people's lives that do not deserve public condemnation to serve one's cause. I'm all in favor of calling out the journalist whose opinions can be bought, or the politician whose vote can be. These are betrayals of one's role-specific duties.

But why does it matter if a rightwing reporter has registered sketchy-sounding domain names? Republicans are perverts; the repression would do anyone in. Treating something so obvious as the Big Story allows the much more significant aspect of the episode -- the Executive's manipulation of the Fourth Estate -- to sink quietly out of view.

Incidentally, I think Howard Kurtz needs to broaden his conservative reading. Of the many, many Bush-supporting bloggers out there, he managed to get a quote from one whose only post on the matter says, "I HAVEN'T PAID MUCH ATTENTION to the Jeff Gannon / Talon News story, but Rip-n-Read podcast has a roundup, available in audio or text. There seems to be some rather unsavory behavior going on here. More on the subject here." Come on, Howard! Follow the links! Otherwise you risk putting a law professor in the uncomfortable and heretofore unknown position of pontificating on a matter with which he is not familiar.

Posted by PG at 03:17 PM | Comments (7) | TrackBack

February 10, 2005

Today / February 10

Today in History (1998) - Richard Machado becomes the first person to be convicted of a hate crime committed by e-mail. Voters in Maine repeal a 1997 statute prohibiting discrimination on the basis of sexual orientation passed, becoming the first U.S. state to abandon such a law.

Posted by PG at 10:42 AM | Comments (0) | TrackBack

February 09, 2005

In the Last Hour of Chinese New Year

I thought I'd post on a couple of cases I saw today that had to do with non-Chinese Asian people.

The first was one that I'd thought settled, that of Tuan Anh Nguyen's petition not to be deported from the U.S. "as an alien convicted of two crimes involving moral turpitude and an aggravated felony." Nguyen, the son of American citizen Joseph Alfred Boulais and a Vietnamese woman, came to the U.S. with his father when he was six, but because his parents were unmarried and the citizenship was his father's instead of his mother's, the Supreme Court held that he was not a citizen.

But nope, Nyuyen's back, this time at the Fifth Circuit (as he committed the crimes in Texas). This case is much more civil procedure than constitutional law, so I'm going to cheat and just copy what the court said:

We review de novo a dismissal of a 28 U.S.C. § 2241 petition for writ of habeas corpus. The question we are called to answer is whether an alien, subject to a removal order, holds a due process interest in discretionary relief under § 212(c) when his pre-AEDPA five-year eligibility bar was activated during the pendency of the removal proceeding before the BIA. We determine that he does not.

The second case is an old one, but one of more peculiar interest to me. In it, the Supreme Court conceded that Indians -- Gandhi, not Sitting Bull -- are Caucasians genetically, but the Naturalization Act, which applied "to aliens, being free white persons, and to aliens of African nativity and to persons of African descent," did not apply to Indians, even high caste Punjabis like Bhagat Singh Thind.

What we now hold is that the words "free white persons" are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word "Caucasian" only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.
I'm also doubtful as to whether the aspiring citizen was really a Hindu; his middle name and Punjab origin make it more likely that he was Sikh (and thus technically not a "high" caste person, as Sikhs claim not to believe in such hierarchies), and other sites identify him as such. But I wouldn't expect a 1923 American judge to be able to tell a Sikh from a Jain from a hole in the ground.

Posted by PG at 11:55 PM | Comments (0) | TrackBack

Facts Shmacts: The Bully Pulpit Version of the SCOTUS

I try to keep personal politics out of blog posts as much as possible. I'm not all that convinced that anyone out there really gives a rat's ass about my take on Roe v. Wade. At the same time, there are certain comments that just automatically evoke the shrill liberal knee-jerk reaction. Nothing accomplishes said effect faster than intellectual dishonesty combined with half-truths and lies. Now the following concerns a segment on Hannity and Colmes on the Fox News Channel, which happens to be the one media outlet that my mind is immunized against. But still...

On Monday, the guest on the show was Mark Levin, author of Men in Black. [Sidenote: Transcript of the show is on Lexis, I will only be pointing to the parts that pissed me off A LOT, but pretty much his entire presence on the show managed to get some sort of a negative reaction out of me]. His main thesis?

LEVIN: Well, if you believe in representative government, and you believe in limits on the three branches, and you believe in checks and balances, Alan, there are no limits on the Supreme Court anymore.

It's conferring rights on terrorists detainees. It's conferring benefits on illegal immigrants. It's saying that things like cyber-child pornography is constitutional and protected speech while protesting in front of an abortion clinic is not, or speaking in certain ways, broadcasting before an election is not.

The Supreme Court's all over the map because it's not following the Constitution. You have nine lawyers, six of whom are activists, five of whom who said they will confer with foreign law and foreign courts when interpreting the United States Constitution. If that's not lawless, if that's not undermining the Constitution and the rule of law, I don't know what is.

I'll let this speak for itself with the one caveat that if posting child porn is protected speech then this is news to me, and it just might help with *cough* my friend's case *cough*. Of course a more accurate statement is that restrictions by Congress on ALL pornsites were held to be too sweeping THREE TIMES. So the fact that one currently does not need a verifiable credit card to access porn will also help said friend. Anyhoo, moving on to the more substantive parts.

Levin basically wants Congress to have the power to override any decision of the SCOTUS by some super-majority, presumably 2/3. Anyone who has taken high school government, or the Naturalization exam probably knows that Congress can pass a bill to add or change a statute by a SIMPLE majority. And if the President malevolently sides with those evil justices, then Congress may override that by a 2/3 vote... hence the super majority. But of course Levin wasn't talking about the majority of the SCOTUS's workload (interpretation of statutes) but really those one or two cases each year that deal with constitutional issues with political overtones (think Affirmative Action and sex between consenting adults of the same sex).

This might shock some readers, especially those with a background in law, but apparently there is a process to change those rulings too. I hadn't heard of it myself until Levin inspired me to write to Congress to complain about this injustice. I was kindly referred to Article V of U.S. Constitution by an 18-year old staffer. He had apparently not passed his AP exams but felt vindicated. So as it turns out if 2/3 of both houses (super-majority) propose an amendment and 3/4 of the states (second super-majority) ratify said amendment, then it can overturn ANY decision of the SCOTUS. I wonder why Levin didn't consider this whopper. I like to think that he was just as clueless as I was, but then if I could do such research when thinking about his ideas, why couldn't he?

In truth I think believing too much in representative government is also not a good thing. Why bother with changing something when it's REALLY against the will of the people through the amendment process, when you can take a kind of a short cut? Plus his idea is bullshit since it assumes that Congress actually is occupied by representatives of the people rather than party hacks chosen to run in safe districts to further whatever interests they may have. (All details that the gentle masses don't need to be concerned about.)

I was actually more troubled by his justification for this idea.

LEVIN: Yes. But then again, let's look at the Supreme Court's record, at least three major cases. Slavery, it upheld it in 1856. Segregation, it imposed it and upheld it in 1896. The internment of Japanese-Americans, 1944. Why doesn't the Supreme Court get discredit for its wrong acts? Those are three massively horrific decisions by the Supreme Court.
Earlier, Levin criticized the Court for:
COLMES: Look, you talk about the endorsing of terrorism by the Supreme Court. Bob Herbert today in The New York Times wrote about a guy named Rasul, who was among thousands of people rounded up on 9/11. He was actually distributing food and medical supplies to Afghanis on 9/11. And he was held in isolation. He said whatever he needed to say to get out of isolation. Doesn't the Constitution protect persons? And doesn't -- we don't automatic presume somebody is a terrorist because they're rounded up?

LEVIN: A good question. First of all, I didn't say they endorsed terrorism. What I say is they don't seem to endorse the Constitution, which is why are they ruling on this in the first place? In the 1940s, there was a case involving foreign enemy combatants who were outside the United States, just as Rasul is, and the Supreme Court said, "You know what? You don't get to come to federal court. That's a commander-in- chief's job."

Suddenly, this summer, all of that changed. I don't want to hear Rasul's defense attorney crap, to be perfectly honest with you. Most of these guys are barbarians. We can put out a little bit of information about what he was saying and how he didn't mean what he was saying, but that's not the Supreme Court's decision. It's not Mark's decision or Alan Colmes' decision.

COLMES: Right.

LEVIN: The Constitution leaves that with the executive branch.

COLMES: But when you say the Supreme Court endorses terrorism...

LEVIN: I didn't say it endorses terrorism.

COLMES: Or that it endorses terrorist rights, is what it says on the flap of your book.

LEVIN: It confers terrorists' rights -- it certainly does. Due process, right? We had a federal judge last week who ruled that the due process clause of the Fifth Amendment of the Constitution, that applies to us, now applies to Al Qaeda and Taliban detainees. Nobody believes that except the judges.

Alright, so, he wants Congress to have power over the SCOTUS as the representative body, and the President to have power over the SCOTUS as Commander-in-Chief. Well, upon closer examination of his critique of the Court we see something peculiar.

Dred Scott v. Sandford: This case is about standing. Specifically, the Court found that as non-citizens, slaves did not have standing in Federal Court (ironically, this means they had no standing for habeas petitions). CONGRESS (the representative body) had failed to extend citizenship to slaves or former slaves (and if I'm not mistaken even descendants of slaves). Same Congress also excluded the Chinese, among many other racist immigration/citizenship laws years later. But the 14th Amendment deals with that by proclaiming, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The SCOTUS applied this even to the children of Chinese immigrants despite an act of Congress. Hmm.

Plessy v. Ferguson: Hardly implemented segregation. What's ironic is that conservatives harp on the judicial activism in Brown v. Board of Ed, the case that overturned Plessy. Which is a great segue to the next topic...overturning bad decisions.

Rasul, meet Korematsu: In WWII, the SCOTUS deferred to the Pres because we were in a war. One result of that is the Korematsu decision which Levin holds against the Court, the other is the Eisentrager, which Levin criticises the Court for partially overturning in Rasul. And don't forget Dred Scott, denying access to Federal Courts CLEARLY has been a great idea in the history of our jurisprudence. Hmm. As I said, facts have no place when you have an agenda. But I think Hannity said that much more eloquently:

HANNITY: ... studying our history. What I like about what you do in the book, Mark, is you make it really readable and understandable for those people that aren't lawyers.


Some post-script random bull shit from Levin (personal favorite: arguing no right to privacy exists because you can't commit murder in your bedroom. Classic. I wonder if that question will ever show up on the LSAT):

HANNITY: There's a lack of accountability, too, because we're talking about lifelong appointments here. As we now go into this year, I think by every objective measure we're going to have an opening or two in the court in the next year. And this is a big battle here. Doesn't this come down to what the left cannot accomplish legislatively, what they can't accomplish at the ballot box, this is where they have put all of their resources, their energy? Explain.

LEVIN: Yes. The left -- present company excluded, but I believe it - - they are able to move their agenda forward through the unelected branch. That's why they are going to fight to the bitter end. They are going to continue their filibusters. Any Bush nominee that comes up, they are going to try and smear. It doesn't matter if they lose senators in red states over it. That's the one branch of government they are comfortable with. It's the one branch of government that, come one election or another, continues to press their agenda.

Posted by Armen at 05:13 PM | Comments (8) | TrackBack

I Hadn't Even Realized It Was an Issue

Transsexual golfers will be allowed to play in this year's women's British Open. The policy change was announced Wednesday by the Ladies Golf Union, which governs amateur golf in Britain and also runs the women's British Open. The tournament is open to amateurs and professionals. The LGU move follows a similar policy shift last year by the Ladies European Tour, the governing body of professional women's golf in Europe. [...] The LPGA - the Florida-based professional women's tour in North America - prohibits transsexuals from playing and allows only women who are female at birth.
Does that mean that men who were female at birth can play? And can transsexuals -- whether women-born-men or vice versa -- play at Augusta?
Posted by PG at 04:10 PM | Comments (0) | TrackBack

February 08, 2005


For the first time, someone in the real world has recommended that I buy Eugene Volokh's Academic Legal Writing, recently released in a second edition. Amazon sells it for $20.50, and the positive reviews on which site include recommendations from and co-blogger Dennis N. Morgan.

Cheap alternatives abound: the professor also has printouts of Volokh's PowerPoint summary, and there's always Volokh's "Writing to Think Like a Lawyer" contribution to the De Novo symposium.

UPDATE: OK, this professor clearly reads blogs. The writing assignment nicks its opposing arguments from the Becker-Posner blog. Question: Is it cheating to look at these materials?

Posted by PG at 04:31 PM | Comments (0) | TrackBack

All that glitters happens to take place in the Golden State

Yearning for the good old days when a public legal education in California was the cost of a mid-sized sedan, I am now fully convinced that every other state of the Union ought to compensate us for the disproportionate costs incurred from prosecuting high-profile cases.

Even with my liberal arts degree, I still have some capacity to understand numbers (limited to the use of an abacus). I know we are by far the most populous state, and as such it's a no brainer that we have more high-profile trials than anyone else. But still, Texas and NY, the other populous states don't seem to have an OJ Simpson to write home about. Jayson Williams? Pshhh...amateur. Plus it involved a limo driver and an apparent accident...nothing juicy, no marriage gone wrong, no hidden erotica, just a dull manslaughter case. Even SportsCenter didn't really bother with this all that much and they usually report on cases of athletes being arrested for DUI or smoking pot on a nightly basis. You get the idea.

Setting aside the U.S. Constitution for a second, (Your Highness, may I introduce Lord Adzhemyan, Duke of San Fernando Valley), I really do think other states should pay CA for this misfortune. It's not like South Dakota doesn't have child molestors or kleptomaniacs. And isn't the killing of a spouse the most common form of homicide? I must confess, the Martha Stewart trial was pretty big, but really, how many people lie about securities fraud in Nevada? But killing a lover? You get the idea. I hope you too see my concern that people in other states are getting the benefit of a lesson learned without that state incurring any costs in administering justice. OUTRAGEOUS, I say. If you are as troubled by this as I am, please send your donations to:

School of Law (Boalt Hall)
Capital Campaign Fund
University of California
Berkeley, CA 94720-7200

Posted by Armen at 01:15 PM | Comments (1) | TrackBack

February 07, 2005

Competence Question

A friend wants to know if an adversarial lawsuit is required in order to have a mentally retarded person declared incompetent, in order to transfer guardianship from the person's parents to his siblings. The family would prefer to avoid such a course of action, and there seems to be no reason why the disabled person in question would fight such a declaration. But does he need to be represented by an attorney who would guard his interests by challenging such a declaration? The relevant law would be for the commonwealth of Virginia.

Anyone know?

Posted by PG at 11:53 PM | Comments (1) | TrackBack

I Always Wanted to Interview at Masa

Among the employers who signed up for on campus interviewing were the U.S. Army and Air Force Judge Advocate Generals. In the listing for students to bid for their interview slots, they had little information icons that could be clicked to say,

The U.S. Military J.A.G. employment practices are not in compliance with Columbia Law School and Columbia University policies on nondiscrimination in that they are unable to provide assurances that they observe the principles of equal opportunity and nondiscrimination in employment on the grounds of sexual orientation. The U.S. Military J.A.G. is being permitted to interview at the Law School because of a U.S. Department of Defense (D.O.D.) threat, pursuant to federal legislation, to withhold all D.O.D. funding, in addition to the funding from a number of other federal agencies, provided to Columbia University if they are not provided the same access as other employers.
Despite not being a fan of the Solomon Amendment, I signed up to interview with both, but the Air Force JAG dropped out, so now I'm only going to see the Army folks. However, I might feel obligated to ask them to move from the comfy confines of Warren Hall to an off-campus locale.

An hour ago, I got an e-mail from the NYU public interest law symposium, which was another venue for summer job seekers like myself. The e-mail says,

As you know, despite not complying with our non-discrimination policy, the military will be recruiting due to restrictions of the Solomon Amendment. As part of our ameliorative efforts we are circulating the attached documents to all participating students and sharing Dean Revesz' message to the community. In addition, rainbow ribbons will be available to allow individuals to express their opposition to the military's recruitment policy. Similarly, employers will be offered non-discrimination pins to wear.

If you are attending an interview with the U.S. Air Force you should contact your Symposium School Administrator if you would like to make further arrangements.

Thank you.

Ivan Perez
Associate Director


To: The Public Interest/Public Service Symposium Participants
From: Richard Revesz
Date: February 2, 2005
Re: Military Recruiting and Discrimination Against Gay and Lesibian People

On February 10, 2005, the Air Force will participate in the Public Interest Job Fair that NYU Law School's Public Interest Law Center (PILC) hosts each year for students from twenty-one area law schools.

Military policy excludes qualified applicants who are openly lesbian, gay, bisexual or transgendered. We are proud that in 1978, NYU Law School became the first law school in the United States to deny its career services to employers who discriminate on the basis of sexual orientation, in addition to earlier policies that denied these services to employers who discriminated on the basis of race, gender, religion, national origin or disability. In response to the leadership of NYU Law School's former Dean John Sexton, in 1990 the Association of American Law Schools (AALS) resolved that accredited law schools in the United States could not aid employers who discriminate on the basis of sexual orientation.

The anti-discrimination policies of NYU and other U.S. law schools do not target the military but apply equally to all employers. Our anti-discrimination policies reflect no disrespect for the military or its lawyers. For decades, America's top law firms and law schools have banned discrimination on the basis of sexual orientation, with the result that they are better able to fulfill their professional and educational tasks.

The federal Solomon Amendment of 1995 denies DOD funds to schools that do not allow military recruiters. In 1997, Congress expanded the Solomon Amendment to deny funding from the Departments of Labor, Health and Human Services, Education, and Transportation to schools that do not allow military recruiters. Despite the loss of $75,000 in Federal Pell Grants, NYU Law School reaffirmed our anti-discrimination principle and continued to deny access to discriminatory recruiters.

Since 2000, the DOD has reinterpreted the Solomon Amendment to extend its reach. The DOD asserts that if any part of a university denied access to military recruiters, the entire university would lose all federal funds. The DOD also asserts that it is entitled not just to "access" but to access equal to that afforded non-discriminatory employers. In November 2004 Congress affirmed the DOD's broad interpretation of its authority under the Solomon Amendment. Other parts of NYU, most notably the medical school, receive substantial federal funds -- more each year than the annual Law School budget. In the Fall of 2002, to protect these funds, the University instructed the Law School to comply with the DOD demands -- that is, to allow the military equal access to career services.

I recognize that this policy causes great pain to our gay, lesbian, bisexual and transgendered students. It is deeply offensive to the great majority of those in the NYU Law School community who believe it is irrational and immoral to discriminate against qualified people because of their sexual orientation.

Further, as lawyers, we understand that the DOD policy may be illegal under the First Amendment. In 2003, The Society of American Law Teachers (SALT), a national organization of 900 law teachers, The Forum for Academic & Institutional Rights (FAIR), an organization of twenty five law schools and law school faculties, and others filed suit against Secretary Donald Rumsfeld, charging that the DOD's practices are not authorized by the federal statute and violate First Amendment rights of speech, association, and academic freedom. We are proud that NYU Law School students and faculty have led this effort and that NYU Law School was one of the first law schools to join the FAIR litigation. The Solomon Amendment remains in effect. Dozens of organizations filed amicus briefs in support of the Solomon challenge. All of the papers in this and related cases can be found at

On November 29, 2004, the federal Third Circuit Court of Appeals held, 2-1, that the Solomon Amendment violates law schools' First Amendment rights of expression, association, academic freedom, and the right to resist compelled speech expressing tolerance for the military's discriminatory policies. Despite this magnificent victory in the Court of Appeals, no injunction has yet been issued to protect the First Amendment rights of law schools. The government has sought a stay of the mandate, and has announced its intent to seek review in the Supreme Court.

On Thursday, February 10 from 12:45 p.m. to 1:45 p.m. in Vanderbilt Hall Room 204 on MacDougal and Washington Sq. So., the Placement Committee, the American Constitution Society, SQUAD and OUTLAW will present a program on these issues. Panelist will include Professors David Richards, Shara Frase, one of the lawyers from Heller Erhman representing the plaintiffs, and Kathi Wescott of the Servicemembers Legal Defense Network. Bess Kennedy of OUTlaw will moderate. The program will be videotaped and available on the NYU web site so that students who have class conflicts at that time will be able to attend class without missing the event.

I will continue to work with all student groups, including SQUAD and OUTLaw, and with faculty and administrators, to discuss constructive measures that the Law School can take in support of its nondiscrimination policy, and in opposition to the military's policy.

On those dates when military recruiters are on campus, the Law School will offer members of the community a means to express disapproval of the military's policy. Ribbons will be available at the Guards' Desks in Vanderbilt and in Furman Hall for those who would like to wear them to affirm opposition to discrimination against gay, lesbian, bisexual and transgendered people.

As NYU Law School recognized in 1978, a society that discriminates on the basis of sexual orientation, or that tolerates such discrimination against qualified people, is not just. I look forward to the day when the Armed Forces, like other employers who recruit at the Law School, adhere to principles of equal opportunity and nondiscrimination.

The e-mail included two attachments, one a bill from NYU's Student Bar Association (Download file) and the other a letter from a coalition of campus groups (Download file), both of which requested that all students interested in working for the JAG Corps voluntarily interview at off-campus locations.

Hence the need to be interviewed at Masa. And where's my rainbow ribbon? I might have to settle for wearing the scarf.

Posted by PG at 10:18 PM | Comments (3) | TrackBack

Incompatibility of Blogging and Law School

Earlier today, I was running a search for cases relevant to my moot court argument -- the outline of which is due in, oh, just three and a half hours -- and I saw a case that was somewhat useful if one was writing about free speech and universities, but really freaking useless if one was writing about a fictional rapper's right to sing about getting an STD from Mandy Moore.

Yet instead of re-reading Hustler Magazine v. Falwell, a case that I normally love, I'm Shephardizing and checking the precedents cited in Hollister v. Tuttle. Hopefully my moot court partner continues his goal-oriented way of life and doesn't take up time-wasting activities like reading this blog, or I'm in trouble.

I'm going to need my blogging privileges taken away more completely and a lot earlier this semester. Intellectual curiosity is so overrated.

UPDATE: But cuteness is not. Between young Volokh and the duck, this may be more than Heidi Bond (whose blog has undergone a makeover) could handle.

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Today / February 7

Today in History (1785) - The Eleventh Amendment is ratified.

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February 06, 2005

Doh on Embryo

I don't know if I'm more exasperated with the judge's ruling in this case, or with the plaintiff's lawyer for having filed a wrongful death suit in the first place. If every embryo created in a fertility clinic is a legal person, then there's a lot of crimes to prosecute.

While many people wince away from destroying their embryos and have the clinics keep them on ice, others decide that when their families are complete, the remaining embryos should be donated [1], inseminated in another woman ("adopted," which the government has given $2 million in grants to promote) or defrosted. I've read about couples who have the embryos -- keep in mind that each embryo is dot-sized -- buried in cemeteries or in their own backyards. Treating these people as guilty of negligent homicide strikes me as an unwise legal regime; I doubt that even pro-lifers like Northwestern Law professor Victor Rosenblum would recommend it.

Ever since I took a seminar on reproductive ethics, I've thought this was an area that needed more regulation, but rewriting precedent to treat embryos as persons instead of property likely will shut down many fertility clinics completely. If you think malpractice insurance rates are hurting doctors, wait until you see the insurance rates on clinics that have to keep thousands of "people" in deep freeze. One electricity blackout and generator shutdown, and they're liable in many more wrongful death lawsuits than their profits can justify. It was stressful enough when Illinois made fertility doctors the legal custodians of the embryos they created.

(Incidentally, there are many people blogging about trying to get pregnant; see the blogroll here for a sampling.)

[1] President Clinton's National Bioethics Advisory Commission -- to which I'm admittedly partial because a favorite professor was on it -- recommended that stem cells should be obtained only by asking couples who otherwise were going to trash their embryos to donate them to science instead.

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Today/ February 6

Today in History (1900) - The international arbitration court at The Hague is created when the Netherlands' Senate ratifies an 1899 peace conference decree. It also is Waitangi Day.

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February 02, 2005

Today/ February 2

Groundhog Day: Phil sees his shadow and thus predicts six more weeks of winter.

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