Date based archive De Novo: January 2006 Archives

January 29, 2006

(In)Discretion in Four Parts

One. I advised a classmate to take her serious complaint about a professor's behavior to someone in the administration. "I think we're too often overawed by professors," I declaimed with the assistance of a pina colada, "and we don't take responsibility for passing information up the chain." I understand the impulse to stay quiet completely; sometimes one's own upset seems irrational and disproportionate, and we're supposed to be professional, which adjective comes with a strong pressure of "stay calm and roll with the system." That all of my experiences have been positive just means I've been lucky in my teachers, and more feedback might make that luck more common. At least, we ought not complain in after years about how law school failed us unless we do our part to improve it.

Two. Is the above an inappropriate disclosure of information? What if the first two sentences are untrue and no such incident took place? Shades of James Frey...

Three. The "Overheard in Law School" blog is consistently funny. However, several contributors' law schools are easily identifiable from their Blogger profiles or individual blogs (one says he's at CWRU, and the implication is that the other Clevelanders are as well). While none of the entries is insulting or excessively personal, some of the professors might not want it publicly bruited outside the CWRU student grapevine that they made these remarks. But maybe these bits of conversation all have been made up.

Four. True or false, this entry -- "Corporations Prof: This class is about money -- it isn’t good against evil, it is evil against evil. This is the vampires coming in and getting fought off by werewolves" -- reminded me of a friend's assessment of Underworld: Evolution's plot as being like Loving v. Virginia (because of the fear of vampire-werewolf miscegenation).

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January 28, 2006

Today / 01.28.06

Today in SCOTUS History (1916) - Louis D. Brandeis becomes the first Jew nominated to the United States Supreme Court. (In 1853, President Millard Fillmore offered to appoint Louisiana Senator Judah P. Benjamin to be the first Jewish Justice, but Benjamin declined the offer, and ultimately became an officer in the Confederacy during the Civil War.)

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January 27, 2006

Leaving the Politics Out of Law

Considering how many policy-oriented classes (economics of welfare, gender, antitrust, law, regulation...) I took in desperate avoidance of having to deal with regression analysis, my undergraduate economics education paradoxically didn't strike me as very politicized. This may be partly because I attended a politically moderate university and even compared to most of my other professors, the econ faculty was relatively conservative. So this article's description of the undergraduate economic education as more political than that of the graduate students made me wonder just how completely politics must be erased from the latter's education. It also started me thinking about whether law can or should be taught the way graduate-level economics reportedly is.

The younger generation has tried to shun prescriptions that seek to cure the economy's ills. Instead, they cast economics as a scientific inquiry, using mathematical models, for example, to explore the economy without becoming advocates for one solution or another.
Certainly there is a fair amount of empirical work to do in law; my Federal Courts professor complained this week that he didn't know of any research on a particular question he wanted answered. But I don't know whether we really have much room for a non-advocate take on the law. I'm writing my Note (well, theoretically I'm writing my Note) about how to delineate markets in the entertainment industry, for the purpose of deciding when a firm -- Ticketmaster, for example -- can be deemed market dominant. From what I understand, I'm supposed to take a position and argue for a specific resolution to the problem, but I don't know that I yet have a decided opinion on how such a determination should be made for the issue that interests me. Perhaps it's just hardwired into legal education that we must be taught advocacy above exploration.

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January 25, 2006

Gauging Law Firms

The 1Ls who are currently being wined and dined by law firms may be wondering: How do I distinguish one from the other? Earlier this month, I offered the idea of assessing them by whether you could see the balldrop in Times Square from their offices, but that's pretty ephemeral -- that location is going to feel like a giant headache while wading through tourists during the rest of the year. So here's a couple of other metrics.

If you're paranoid and/or a technology geek, perhaps you can determine which firms are superior by whether they're still using Blackberrys. Those addicted to the Crackberry, without a plan for rehab, are clearly inferior. The company that claims the underlying patent for the Blackberry shows no signs of willingness to accept royalties from RIM, the manufacturer, and NTP's willingness to grant an exception for government workers won't apply to private sector attorneys. Don't work for a firm that waits for the 30-day grace period -- go to the Palm Piloteers today!

If you're a "wild-haired, sandal-wearing radical" who reluctantly feels compelled to sell out, check out Deroy Murdock's list of firms whose pro bono work for Guantanamo Bay detainees will make you feel more at home. I had been planning to look up everyone who was in the "Guantanamo Bay Bar Association," so Murdock and his Young Republican assistant have saved me some time. And if you want to hit the twofer -- Murdock quotes an anonymous former high-level federal attorney as saying, "Why our best law firms would dedicate their pro-bono resources to suspected terrorists rather than, say, people rendered homeless by Katrina, is beyond me" --

Mayer has an associate who is the Co-Chair of the ABA Tax Section's Hurricane Katrina Task Force;
Blank Rome one who is working on takings issues associated with Katrina (whatever those may be);
Covington & Burling pledged $100,000 to Katrina relief;
Holland & Hart had given over $75,000 as of October 2005, and also notified employees of how they could donate unused time off;
Hunton & Williams had a daylong seminar last month about Katrina. Though I don't know of Shearman & Sterling's Katrina work, one of their attorneys was a "stalwart" of the 9/11 Project.

And that's just what I get from searching the sites that Murdock himself linked for "katrina."

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And not just over "the basic tenants of society," though I do wonder if the Washington Post has followed the unwise example of my undergrad paper and eliminated the role of copy editor.

Virginia's Senate and House of Delegates have both passed legislation to put a referendum on amending the state's Bill of Rights, to include a definition of marriage as being between one man and one woman, on the November 2006 ballot. Considering that the Democratic governor's spokeswoman says he agrees with this definition, the chance that the measure will fail does not seem good. Such an attempt is more likely to falter in Maryland, where the legislature and voters are more liberal. At the same time, the prospect of a judge finding a right to same-sex unions in the Virginia Constitution as one did in Maryland's should be more than enough bogeyman to get the voters to ensure that it doesn't happen.

(I call it a bogeyman because the closest thing to Maryland's "equality of rights under the law shall not be abridged or denied because of sex" in the Virginia Constitution of 1971 is Article I, Section 11, which says that "the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination." In Archer and Johnson v. Mayes (1973), the Virginia Supreme Court stated that this language "is no broader than the equal protection clause of the fourteenth Amendment to the Constitution of the United States.")

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January 24, 2006

Question for Blogging Professors

Do you ever tell a student that the answer to her question is on your blog? I ask because I just witnessed my first instance of a professors responding to a query with "look at my treatise," and I thought, "Hey, we're in the 21st century -- if the treatise isn't on Westlaw, she'll have to go to the library."

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January 22, 2006

Dang Kelo, But Dang Californians More

I am amused by the prospect of having a group of media-hungry conservatives go before the council of a town so small it has no hotels, and tell them to evict Weare's most famous resident in order to build an inn.

Yes, they're still on about it.

[This post makes no representations as to whether people in New Hampshire actually say "Dang."]

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Another Blawgger + NYT

I found this New York Times profile of David Lat (author of Underneath Their Robes) to be both inaccurate and not wholly flattering. For example, the article says of UTR, "Supreme Court clerks were dubbed 'The Chosen'"; in actuality, A3G calls them The Elect. It also quotes one of his former colleagues at Wachtell describing him as looking like he had "tears coming out of his eyes, his face would get red, he'd have these temper tantrums, and stamp his feet" when given routine associate work. And if Ann Coulter and Maureen Dowd are Lat's models, he's just scared off almost everyone. (Is there someone who likes both Coulter and Dowd? perhaps some self-hating woman.) The only thing from the article that I liked was this:

Mr. Lat, who will take over the site in the coming weeks with co-editor Alex Pareene, a 20-year-old New York University dropout, says that he does not hold himself to conventional reporting standards. "Some of the things I do are journalist-esque," he said, "but I don't consider myself a journalist."
"Fact-checking on the Web is: you put up something on the Web and if it's wrong, somebody e-mails you and tells you it's wrong, and you put something up saying, 'It's wrong.' "
UPDATE: A3G provides Alito & CAP-like explanations for Lat's old college editorials -- apparently he too was just trying to earn conservative cred.

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The Original Abortion Federalism

Congratulations to Will Baude on his op-ed piece published in the Sunday Times. Representin' for blog-style writing, States of Confusion includes links to the arguments to which he's responding, and he appears to answer them in a reasonably able fashion. However, neither the column nor his dialogue with Quaker dealt with the objection I had to his old post on the same question of what would happen if Roe were overturned and abortion's legality returned to the states for decision. Will fails to describe the relevant history.

Before Roe, state-made abortion regulation was exactly what we had, so we should delve into the 1950s, '60s and early '70s to find out how anti-choice states dealt with women who were found to have gone out of state to obtain abortions. While a student at UT Law, Roe's attorney Sarah Weddington went to Mexico (where abortion was illegal as well) to terminate an unwanted pregnancy. Did she and women like her have to fear arrest upon their return, or did Texas not worry about what immoralities occurred outside its borders? Her autobiography notes the story of Sherri Finkbine, a working mother of four who defied an Arizona court to abort her thalidomide-affected fetus in Sweden.

She also reports, "From mid-1970 through 1972, nearly 350,000 women left their own states to obtain legal abortions in New York, one of the few states where abortion was then legal and available to nonresidents." That distinction, "available to nonresidents," raises the question of whether Congress might pass a DOMA-like act or one more similar to the Fugitive Slave Act than what Will posits: a law that requires states that do permit abortion not to allow citizens not of that state to obtain abortions there.

States may well decree that Life begins at conception, but they are unlikely to begin classifying fetuses as Persons/ Citizens -- or as in Texas, Individuals -- unless their own courts turn on them and find abortion rights in the state constitutions, at which point fetuses become Persons so killing them can be deemed homicide, a violation of the individual's right, instead of just a violation of the state's interest.

Considering that states have not managed to pass laws that ban pregnant women from consuming alcohol, smoking or performing other legal activities that endanger the fetus, a law that banned travel by pregnant women seems unlikely to pass. How would the state find out that she had had an abortion so it could enforce a long-arm statute, without the cooperation of hospitals in other states who would disprove her claim of having had a miscarriage* while traveling? Putting a fetus in custody reveals the part of abortion that most pro-lifers would like to forget, that the woman carrying the fetus is prisoner to whatever measures that are passed in the name of the fetus's protection. Such measures actually might galvanize opposition to abortion regulation, as women publicized how they have been prevented from traveling because they are under suspicion as possible aborters.

I'm not in favor of having abortion devolve to the states. While the pro-choice federalists blithely assume that women will just travel elsewhere and that the only problem will be conflicting state regulations, I'm worried about the women whose burdens already make them feel unable to bring their pregnancy to term. A woman in Mississippi who has many children and little money has enough trouble getting to the single clinic in the state for the required two visits to obtain an abortion; forcing her to go even further strikes me as nearly inhumane.

* A term that some people use interchangeably with abortion. My mother recently horrified me slightly by telling me that someone had had five abortions. My eyes widened: "OK if she doesn't want kids, but why doesn't she use birth control?" It turned out that the person had had five miscarriages, which is pitiable but unlikely to draw criminal charges anywhere.

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January 20, 2006

More Maryland Madness

And moving from the beloved of some conservatives to the, well, less-beloved: a Baltimore judge this morning declared Maryland's 33-year-old definition of marriage as union between a man and a woman to be a discriminatory statutory classification and therefore unconstitutional under Maryland's equal rights and due process amendments. Governor Ehrlich* responded, "I am going to take the appropriate steps to protect marriage"; Republican legislators jumped up to add Maryland to the list of states with FMAs; and Democratic legislators cautioned sexual orientation equality groups to cork their enthusiasm.

I am not going to comment on Circuit Judge M. Brooke Murdock's opinion, as its rationale fits with my own opinion on most matters dealing with sexual orientation: Are you distinguishing between men and women when the law doesn't explicitly involve biological functioning? Then it's sex discrimination without a sufficient state interest. Because the Maryland Constitution has an Equal Rights Amendment (unlike the federal constitution, alas!) stating that "equality of rights under the law shall not be abridged or denied because of sex," Murdock applies a strict scrutiny standard and declares that the law is not narrowly tailored to serve any compelling governmental interest. Points for managing not to say Loving until the bottom of page 7...

* Running for re-election this year, Ehrlich is betting on knowing where the political middle of Maryland is; he'll probably sign on to an FMA, but he's also proposed legislation to make a database of advance directives, so adults can designate any person of their choosing to make their medical decisions and have that person known quickly and easily to health care professionals.

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Wal-Mart Nits

Linking last year's news rather than this year's override of Governor Ehrlich's veto*, Will Baude describes Maryland's controversial Fair Share Health Care Act as not requiring "Wal-Mart to pay its workers any more, it just requires it to pay its workers in a good rather than in flexible cash ... employee wages reduced 8% in exchange for some health-care in order to save money at the state treasury later."

He may be misreading the legislation. While opponents of the law may argue that Wal-Mart will now have to spend money on healthcare that it otherwise might have added to wages, I don't think that Maryland is telling Wal-Mart to reduce wages it's already paying in order to spend that money on healthcare. Rather, when the state says Wal-Mart must spend 8% of payroll on healthcare, that means that if payroll -- the amount given in wages -- is $100 million dollars, Wal-Mart must be spending $8 million additionally to fund employees' health care.

When I say "the amount given in wages," this may include deductions for the employees' own spending on healthcare. For example, let's pretend that when I worked, I got paid $1000 each paycheck. I didn't actually get $1000, of course; there were deductions for federal income tax, state income tax -- Virginia, incidentally, starts taxing at a lower income than D.C. does -- and health insurance**. So I contributed some of the money to fund my health plan, and my employer added some. Wal-Mart can honestly say that it offers health care benefits to the majority of its "associates," but its critics point out that the company doesn't pay in very much itself, instead requiring the associates to pay most of the deductible. Many of them can't really afford this on a Wal-Mart wage, and at that wage qualify for Medicaid and CHIP (for the more elderly greeters, like all people over 65, Medicare although the employer insurance is supposed to cover prescriptions and I will stop health care geeking now).

As for the constitutional questionability of the law, I don't think Wal-Mart could get an Equal Protection claim unless another for-profit company was moving toward the 10,000 employee mark, or one that would have 10,000 employees was considering moving to Maryland, and successfully lobbied to have the legislation changed such that it would apply only to companies with 15,000 employees, which still would capture Wal-Mart at its current employment level, but not affect this other company. That would look sketchy, which is the standard that I discern from Olech: imposing a different easement requirement on a single citizen, who just happens to have annoyed the city fathers previously, is Sketchy. The Maryland legislation is not a bill of attainder, because it's not imposing criminal penalties, merely a regulation, but I don't think it would qualify as a Regulatory Taking, either.

The McCulloch reference does tangentially relate to a more plausible, albeit less individual rights oriented, argument that Wal-Mart could make about the law, i.e. that it conflicts with federal legislation and therefore violates the Supremacy or Dormant Commerce Clause. Bow to ERISA, suckas.

* For those not conversant with current Maryland politics, the Democratic legislature does not often get along with the Republican governor; along the lines of the health care spending battle, on Tuesday the legislature voted to override Ehrlich's veto and raise the minimum wage by a dollar more than the federal floor. Ehrlich's been trying to get slot machines in Maryland ever since he was elected, and the measure has never managed to pass both houses despite his concerns about letting that gambling money leave the state. Fortunately, Maryland seems to be hanging on to the 'ho revenue pretty well.

** Actually I worked for an HMO (if you think Wal-Mart is evil, you should hear what my bioethics profs said when they heard about my post-graduation plans) and was on their cheapest program, so I only had to pay a co-pay when I actually went to the doctor and had no deduction from my paycheck.

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January 19, 2006

Define Irony

Watching a video in legal ethics about a guy disciplined by the bar for being a drunkard on a bar review night.

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Today / 01.20.06

Today in SCOTUS History (1801) - John Marshall is appointed Chief Justice of the United States.

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January 18, 2006

What If You Really Want to Thank and Excuse Someone?

Today, the SCOTUS reversed the 9th Cir. in a habeas case of a defendant challenging the prosecutor's peremtory challenges. Justice Breyer concurred in the opinion but wrote separately to express his doubts about Batson's effectiveness to ferret out unconstitutional peremtory challenges and echoed Justice Thurgood Marshall's opinion that we should abolish the use of peremptories.

On an abstract level, I agree with Breyer that if the choice is between a common law custom and the 14th Amendment's command, then the choice is clear. But on a practical level, I think there are quite a few instances where the challenges can be necessary. I had the pleasure of sitting through a jury selection this past summer where the AUSA wanted a juror dismissed for cause because he could not hear. At sidebar, the judge allowed the prosecutor an extra peremtory challenge to dismiss that juror so long as he was not the first to go. Instead of hearing (pun intended) the AUSA tell the court that he cannot hear sufficiently well enough to fairly judge, this particular juror instead heard the AUSA thank and excuse him without any explanation.

The moral of the story is that sometimes dismissal without any explanation is best. This doens't mean that peremptories should remain. Frankly, I don't see why the judge could not simply thank and excuse the juror himself without revealing the details of the sidebar. The record of the sidebar includes the cause for dismissal for an appeal down the road. On the other hand, I don't think the defense counsel could have systematically dismissed every single potential juror with a degree in business or finance or experience in the field without the aid of peremptories in a case involving credit fraud.

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January 17, 2006

Of Course Torture Spying Works!

This article on the usefulness, or lack thereof, of the information garnered by the NSA's FISA-free program reminds me of the somewhat secondary debate about the tactics we should use to wring information out of individuals when they know we're wringing the information. That lesser debate doesn't worry about whether the tactics are moral or legal -- it focuses on whether they actually work. I say it is secondary and lesser because it rarely plays out head-to-head in the way the moral and legal debates do; one side just tends to assume that torture must work ("why else would we use it? for fun?" Well, if you look at Abu Ghraib...) and the other side assumes that it doesn't ("start playing 'Yellow Submarine' and they'll tell you anything to make it stop").

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Still Another Federalism

There seems to be a slight confusion in some quarters regarding the grounds on which six Supreme Court justices upheld Oregon's assisted suicide law against the U.S. Attorney General's attempt to make it inoperable. Hammer of Truth assesses it thusly: "In an obvious bout of dementia, the Supreme Court ruled today – despite the obvious fact that FedGov does indeed possess the legal authority to withhold the medical marijuana that may well prevent the terminal condition to begin with — that conditional assisted suicide laws, passed by state governments are beyond the reach of centralized state authority."

The ruling is really more about separation of powers than it is about state sovereignty, and while some may see the decision by the four liberal justices plus O'Connor and Kennedy as "case-by-case" federalism, I am more inclined to view it as the majority's attempt to police the boundaries of executive authority when it seems to reach beyond what Congress granted. I'm fairly sure that if Congress passed an explicit ban on the use of legal pharmaceuticals for suicide, and said that physicians who made such prescriptions no longer would be able to be part of that stream in interstate commerce, the Raich majority would have upheld that statute as constitutional. However, the federal government is not one giant blob of coercion, and it's not at all demented for the Supreme Court to consider an action taken by Ashcroft on his own intitiative to be improper, while viewing one taken under the clear authority of legislation to be permissible.

Thomas's dissent does interestingly challenge the distinction between the Raich decision and that made for Oregon, but on the grounds of the majority's allegedly inconsistent interpretation of the Controlled Substances Act's grant of power to the Attorney General, not so much on state vs. fed kind of federalism. Still, from what I understand, any CSA prosecution involved in the Raich scenario would be against those who engage in the federally prohibited manufacture and distribution of marijuana, whereas Ashcroft sought to go after physicians even for writing prescriptions.

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Illiberal Pro Bono?

I've heard complaints that the pro bono projects offered by law schools often don't mesh well with some students' preferred politics. For example, if you think that our justice system executes too few people, working on behalf of capital defendants and death row inmates is not going to be appealing. Nor is this a concern that applies only to law school, though it can be more galling in a period when such work is required for graduation rather than merely encouraged for PR. Some people choose their law firms based partly on the pro bono work the firms do. Much as one young associate will prefer a firm that is not only accepting of homosexuality but actively working to further sexual orientation equality, another might want to be at a place that will be defending the First Amendment rights of abortion clinic protestors.

The conservative farm system, though generous in providing students chances at well-funded summer internships and beautifully catered free dinners, has been somewhat slower in finding ways for such proteges to complete their required volunteer hours. A few years ago, the Federalist Society launched its Pro Bono Center, which "offers public interest firms a unique and exciting opportunity to provide the Society's lawyers with information about opportunities for pro bono service in the cause of individual liberty, traditional values, limited government, and the rule of law."

One of the basic difficulties of finding such opportunities that will meet the law schools' requirements is that pro bono clients must be so poor that, in the absence of free assistance, they would be without legal aid -- hence the lure of political refugees, low-income tenants and such. Even when conservatives are worrying about disadvantaged people, as in the Kelo dissents, the objects of pity tend to be people who are advantaged enough to hire a cheap lawyer even before the Institute for Justice shows up.

There is a solution, however: religious prisoners. The Becket Fund for Religious Liberty recently made available the following pro bono research opportunity:

A magistrate judge in one of our cases has suggested that monetary damages might not be available for a RLUIPA (Religious Land Use and Institutionalized Persons Act) claim. Since RLUIPA is directly modeled on RFRA (Religious Freedom Restoration Act), we are looking for all RFRA cases where damages have been awarded, with the goal of proving the magistrate judge wrong.
While the entities involved with religious land use, like those involved in takings claims, generally have enough money to pay their own attorney, the institutionalized persons rarely do, which is why they get the help of liberal do-gooders when they're on death row. For their religiously-motivated need to have long hair, segregationist literature and Satanic services, however, prisoners can turn to conservatives.

UPDATE: ambimb titles his post on the City Journal article discussed in comments with "Pity the downtrodden landlord"; theoretically, there must be some landlords who are operating so close to the edge of bankruptcy that they really can't afford to pay a lawyer, so perhaps they should start declaring their financial instability openly in hopes of getting 40 hours per Republican student.


The Becket Fund for Religious Liberty has contacted me with another pro bono project that looks interesting. As part of an effort to make sure state prison systems provide nutritionally adequate kosher meals to observant Jewish inmates, they need help researching the kosher meal programs in state prison systems. Cost is one of the defenses that non-compliant states are using to avoid providing kosher meals, so the project also needs some research on how much such programs cost to implement and run.

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January 15, 2006

Today / 01.15.06

Today would have been the 77th birthday of the Rev. Martin Luther King, Jr., and is the 89th birthday of Sen. Robert Byrd.

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January 12, 2006

Don't Cry for Me Ms. Bomgardner

TIME reports that Judge Alito's wife left his confirmation hearings in tears today. The presumption of the Republicans is that she was upset by Democratic senators' questions that focused on Alito's record on race and gender, which led to Sen. Lindsey Graham's asking, "Are you really a closet bigot?" and Alito's replying that he is "not any kind of a bigot." A good answer, as I would have thought that in examining Alito's membership in an alumni group, job applications, written opinions and votes as a judge, any bigotry thus revealed could hardly be called "closet." If the senators were investigating whether Alito discriminates on the basis of race or gender in the privacy of his own bedroom, for example, that might be considered a determination of "closet" bigotry. Especially if they failed to find Alito to have been biased on the basis of sex, that would be good reason for his wife to be upset.

Graham continued, "Guilt by association is going to drive good men and women away from wanting to sit where you're sitting." This is an assertion that worries me. Not that I ever expect to be sitting before the Senate Judiciary Committee, but just in case, perhaps I should review my past associations. I graduated from a high school that was still under a desegregation court order during my attendance, and was in the sex-discriminatory National Honor Society. Shortly after my graduation, the father of one of my schoolmates was killed in a hate crime that some considered an indictment of the area in which I grew up. I attended a university founded by a slaveholder, built by slaves and that purchased slaves, which continues to have race-related problems. I worked for an African American-owned company before law school, but the top executives were all male, and I also was employed by a company that perpetuates reliance on discriminatory standardized exams. At law school, I joined the Federalist Society, which pretty much ends the discussion.

FUN FACTS: The Concerned Alumni of Princeton were early adopters of the complaints now widespread among conservatives, such as that too few faculty members voted for Nixon. Also, CAP seems to have been unamused by the school's band. The students' reaction (scroll to bottom of this; halfway down this) makes me nostalgic for UVA's pep band, now mostly a memory thanks to our own hidebound alumni and the easily-offended governor of West Virginia.

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January 11, 2006

Now THAT is the Question

I wonder why is it that (when the religious right has made it abundantly clear that they support the Pres only to the extent that he fulfills his promise to appoint anti-Roe Justices to the SCOTUS) none of the Reps on the Judiciary Committee ask Alito for his views on Roe. Do they know something I don't? I wonder if Miers would have received the same treatment.

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January 10, 2006

Today / 01.10.06

Today in History (1946) - First General Assembly of the United Nations opens in London.

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January 09, 2006

What's in a Name?

I really hope this is not true. It's the first time I've seen it reported anywhere. But if indeed you can't "annoy" someone online anonymously, then I would like to see charges brought against a blogger named Publius. [Note: If there is actually any such blogger, I have nothing against him/her, I just want the irony.]

UPDATE: As commenter Tom T. points out, Prof. Volokh has his thoughts here and here, while Prof. Kerr has his initial thoughts here. Neither of them, however, posts under a pseudonym, but I have mentioned how Volokh annoys me with his sales pitches for Academic Legal Writing.

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January 08, 2006

Smart Journal, Stupid Question

The WSJ Law blog looks OK, like a business-law version of How Appealing heads-up style of blawgging, but their first "question of the day" was distinctly unimpressive. The initial post, which flagged it, said "a law question of the day — today’s asks what you’d advise someone considering law school," but the actual question consisted of three imbecilic options:

What would you tell someone considering law school?
Do it. Practicing law is a great career.
Get the degree but do something other than practice law.
There are better ways to use your time and money.
No wonder there are so many people in the comments sniping that one would be better off being something useful like an engineer. Telling someone who is considering law school what to do is impossible without knowing what this person likes, what she wants out of life and what her current situation is. Even my med school-obsessed parents gave up trying to persuade me to take the MCAT after they realized that I am really interested in the law as a subject, not just going to law school to enter the professional class. If someone wanted to know whether to go to law school, I'd refer her to the last several commenters on Jeremy's once-lighthearted post on dropping out and say that if she identified with any of them, not to go.

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January 07, 2006

CLS 1Ls, Heed Will's Words

SCOTUS's cert. grant for a Utah search-and-seizure case prompts Will Baude to muse on the dearth of knowledge and experience among attorneys in briefing arguments that rely on state constitutions:

Maybe most modern lawyers simply don't know how to brief a plausible constitutional argument that doesn't involve case law. Constitutional law courses focus almost exclusively (if not exclusively) on decisions of the Supreme Court and the odd lower court (and some of them are very odd indeed). You might get a nod to Jackson's Bank Veto, but what First-Year Con. Law student learns how to brief a legal argument to a court on a constitutional issue that cites only things like the original history and plain text of the provision, traditions of the people of the state, and so on? If states want their state constitutions taken seriously, they might do well to provide a bit of a helping hand, and demonstrate how it could be done.
My partner in editing devised a moot court problem that focuses entirely on the South Carolina state constitution's provision for divorce and the statute putting that provision into effect. As family law, this is admittedly an area where the federal constitution and courts have been relatively silent, as opposed to the "independent state constitutional jurisprudence [...] based on searches-and-seizures and the other criminal procedure amendments" that overlaps and potentially conflicts with 4th Amendment jurisprudence. Nonetheless, this hypothetical will provide a rare opportunity to make arguments based precisely on "original history and plain text of the provision, traditions of the people of the state" (keep any Southern incest jokes to a minimum, kids) as well as some state caselaw.

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January 06, 2006

I Prefer the Green Tape

The news that Homeland Security may open mail to U.S. citizens from overseas correspondents doesn't surprise me.

Last month Goodman, an 81-year-old retired University of Kansas history professor, received a letter from his friend in the Philippines that had been opened and resealed with a strip of dark green tape bearing the words “by Border Protection” and carrying the official Homeland Security seal.
Indeed, what I find strange is this part of the article:
Goodman is no stranger to mail snooping; as an officer during World War II he was responsible for reading all outgoing mail of the men in his command and censoring any passages that might provide clues as to his unit’s position. “But we didn’t do it as clumsily as they’ve done it, I can tell you that,” Goodman noted, with no small amount of irony in his voice. “Isn’t it funny that this doesn’t appear to be any kind of surreptitious effort here,” he said.
Personally, I'm more disturbed when the government is surreptitious, when Americans' privacy is invaded without their knowledge that this is occurring. If enough people are annoyed by getting green-taped letters, they can go through the democratic process and get Congress to restrain the Executive from doing it (assuming that we're not living in the World According to Yoo); if people never know that their communications have been searched, there's no way to determine as a citizenry whether we want to make that tradeoff for greater security.

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Today / 01.06.06

Today in History (1941) - Franklin Delano Roosevelt delivers his Four Freedoms Speech in the State of the Union Address. Five years later, New York-born, German-naturalized William Joyce ("Lord Haw Haw") is hanged for treason in the UK, his British passport providing jurisdiction.

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January 02, 2006

Where Have All the Injunctions Gone?

Last summer, I wondered at how few legal clashes there have been between the federal government and the media since 9/11 regarding the publication of sensitive material. I have not heard of the Bush Administration's applying for any injunctions to prevent information or opinion being disseminated, a track record that might surprise those of us who were superficially worried about attempts at gagging after a White House press secretary's infamous admonition that Americans "need to watch what they say." The major controversy regarding the press and national security has dealt with reporters who were trying to protect their Administration sources.

Instead, there appears to be more of a reliance on self-policing. For example, in its first article breaking the story of the NSA's warrantless spying, the New York Times mentioned that the Administration had asked the paper not to publish; the NYT had sat on the story for a year while confirming it; and some information had been voluntarily redacted. This was a pretty unsatisfying account of the decision-making process, as the Public Editor says. Judging by the reaction from President Bush and his supporters to the article's publication, however, an injunction ought to have been sought: the disclosure of the information was "a shameful act" and "the revelations in the Times help the terrorists."

Even New York Times v. U.S. decision was a split mess, and the Pentagon Papers -- documenting missteps in a war nearly over -- were much less obviously a potential threat to security than information about how the government detects current terrorist activity, so publication of the latter would seem to have a better chance of capturing more than three votes on the Supreme Court. Especially if Bush had asked specifically for an injunctive power in the PATRIOT Act, one of the objections that two justices in the NYT v. U.S. majority had would be eliminated. I'm puzzled as to why the government isn't using its power of injunction to prevent the media from directly undermining (as opposed to the kind of subtle undermining that Nixon's people feared would occur with the Pentagon Papers' evidence of how badly Fearless Leaders can screw up) the war on terrorism.

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January 01, 2006

New Year's Frivolity

With Article III Groupie back online, I feel that I ought to commemorate her return by doing some unserious law blogging. For the first time last night, I spent New Year's Eve in New York City, and even began the day with an ambition to stand in Times Square to watch the ball drop in person instead of seeing it on TV. However, damp weather, incipient head cold and other pressures combined to get me out of the elements and back home. Alas! I thought, trying to get out of the crowd at 49th and Broadway without stepping on the kids whose legs had given out, Why did I not plan ahead and get inside one of the glass towers to see all this spectacle in a warm, dry place?

Admittedly most of the hotels that offer such a view were out of my price and procrastination range, having been booked at exhorbitant rates well before I'd known that I would be in Manhattan on December 31, 2005. But there is another option potentially available to law students and lawyers: talk your firm into opening the office for the night. Obviously this is useful only for the firms whose New York location permits one to look out the window and see Times Square, but there's a fair number of those: Skadden (Conde Nast building, Four Times Square); Pillsbury Winthrop (Broadway and 45th); Proskauer Rose (Broadway and 47-48th); Heller Ehrman, Brown Rudnick, O'Melveny & Myers, Condon & Forsyth, Pitney Hardin (all in Times Square Tower, 7 Times Square). Cravath, at 8th Avenue and 49-50th, doesn't quite make the cut.

UPDATE: New Yorker Jeremy Blachman is starting 2006 with a fresh URL and Typepad -- change your bookmarks and blogrolls. When it will cease to be appropriate to call it brand new, I do not know.

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Today / 01.01.06

Happy New Year. Forty years ago, MTA New York City Transit workers started a 12 day strike that led New York State to adopt the Taylor Law, which prohibits strikes by public employeses. Today, the union currently is working without a contract but expects to have a deal finalized soon.

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